Orellana v. Castillo

Filed 11/23/05 Orellana v. Castillo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SANTOS A. ORELLANA, Plaintiff and Respondent, v. JOSE A. CASTILLO, Defendant and Appellant.

A109064 (San Francisco County Super. Ct. No. FL 039065)

Jose A. Castillo appeals, in propria persona, the denial of his application for a temporary restraining order (TRO) under the Domestic Violence Prevention Act (the DVPA) (Fam. Code,^[1] § 6200) against his former wife, Santos A. Orellana (also known as Santos A. Castillo).^[2] Jose contends his request for a TRO was erroneously denied. We reject the contention and affirm.

Background

On October 25, 2004, Jose was summarily issued a domestic violence TRO against Santos, to end on November 10, the date of the hearing. Jose’s form request for the TRO sought: the right to record communications made to him by Santos that violate the court’s orders, an order that Santos attend a batterer intervention program, and the return of personal and family documents in her possession. Jose’s application stated that the most recent abuse occurred on the night of October 14, when he saw Santos break the side mirror of his car. He stated that he filed a report of the incident at the police station. He also stated that Santos might have a gun or other weapon in her possession. Jose described the second most recent abuse as occurring on October 13, when Santos followed him onto a bus that he took to work, pointed at him while on the bus and followed him off the bus. Jose also described that on October 9, Santos drove past the home he shared with his mother and pointed at them. Attached to Jose’s request for a domestic violence prevention order was a form request for legal custody of the parties’ three minor children, which stated his belief that Santos would remove the minors from California and the United States without his permission.

The register of actions reveals that on November 1, 2004, Santos filed her form answer to the TRO, however, no answer is included in the appellate record.

On November 8, 2004, Jose filed a written response to Santos’s answer in which he stated that Santos was failing to (1) comply with the court’s warnings to stay away from his mother, (2) receive therapy for her violent behavior, and (3) return his stolen documents. Jose also accused Santos’s attorney of providing false information to the court.

At the commencement of the November 10, 2004 TRO hearing, the court (Judge Kahn) stated that, given its familiarity with the case, and in accordance with Unified Family Court policies, it would handle the TRO request rather than the court commissioner.^[3] Jose stated he had reviewed Santos’s answer and acknowledged that the basis for his TRO request was events occurring between October 9 and 14, 2004. Jose said he saw Santos break his car mirror. He presented a form to obtain a police report but no police report was before the trial court. Jose also said he felt unsafe because Santos had followed him onto the bus and twice followed him to his job. He also said Santos was making anonymous calls to his answering machine, but he failed to bring the answering machine’s audio tape to the hearing. Jose said his mother was very afraid because Santos kicked the door of his and his mother’s home while his mother was home.

Jose’s mother, Maria Ramirez, testified that two days before the hearing some people dressed in black knocked at the door causing her to be afraid. Ramirez admitted that she could not tell who the people were. When asked by the court if she was afraid of Santos, Ramirez responded, “I’ve never met her. I don’t know her.”

Santos testified that Jose’s accusations were not true and that he had been making accusations against her since the beginning of their marriage. She conceded that on one occasion Jose was on the bus that she and her son boarded. She said she did not see Jose but her son saw him. Other than seeing him on the bus, Santos denied seeing Jose or his mother since the previous court hearing.

The court stated it was denying Jose’s request for a restraining order because it was not persuaded that Santos had committed acts of abuse and therefore concluded that Jose was not in need of protection from her. On December 10, 2004, the court issued an order denying Jose’s request for a TRO.

Discussion

Orders under the DVPA are intended to further its statutory purpose, i.e., “to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) Persons may obtain DVPA restraining orders against designated persons including spouses and former spouses. (§ 6211.) Section 6300 provides that a domestic violence restraining order may issue “if an affidavit, or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” “Abuse” is defined in the DVPA as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious injury to that person or to another. (§ 6203; Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079.) The behavior outlined in section 6320 also includes “stalking, threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.” “[T]he requisite abuse need not be actual infliction of physical injury or assault.” (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.)

We review the court’s denial of the TRO for abuse of discretion. (See, e.g., Quintana v. Guijosa, supra, 107 Cal.App.4th 1079.) In doing so, we defer to the trial court’s factfinding authority including the credibility of witnesses, and, construe the facts in the light most favorable to the judgment. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850; Woodman Partners v. Sofa U Love (2001) 94 Cal.App.4th 766, 771.) Since an appellate court does not make findings of fact, we have disregarded facts raised in Jose’s brief that are outside the appellate record.

A fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶ 8:15, pp.8-4 to 8-5 (rev. #1 2004).) “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness by providing an adequate appellate record demonstrating error. An appellant’s failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

In this case, the court impliedly found Santos more credible and found no restrainable abuse. Based on the record before us, which does not contain Santos’s answer to Jose’s TRO application, we must defer to the court’s credibility determination and conclude that appellant has failed to demonstrate that the court’s denial of the TRO was an abuse of discretion.

Disposition

The order is affirmed.

_________________________

Simons, J.

We concur:

_________________________

Jones, P. J.

_________________________

Gemello, J.

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^[1] All undesignated section references are to the Family Code.

^[2] Solely for the sake of convenience, we refer to the parties by their first names.

^[3] Since Jose did not object to Judge Kahn’s hearing the matter, we therefore reject his apparent assertion that Judge Kahn wrongfully presided over the matter.