Filed 10/4/13 Jarvinen v. Giubbolini CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


HOLLY JARVINEN

     Plaintiff and Respondent,                                         G047721

         v.                                                            (Super. Ct. No. 12V001931)

LUIGI GIUBBOLINI,                                                      OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Glenn R.
Salter, Judge. Affirmed.
                   Luigi Giubbolini, in pro. per., for Defendant and Appellant.
                   Severson & Werson and Matthew J. Esposito for Plaintiff and Respondent.


                                        *                    *                    *
              Defendant and appellant Luigi Giubbolini appeals from a restraining order
issued against him in favor of plaintiff and respondent Holly Jarvinen pursuant to the
Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.; all further
statutory references are to the Family Code unless otherwise stated). He argues the trial
court “was not legally qualified to decide the case,” there was insufficient evidence
supporting the order, and the court erred both in admitting certain photographs due to
lack of foundation and in dismissing his self-defense claim. Finding no error, we affirm.


                        FACTS AND PROCEDURAL HISTORY


              Plaintiff and defendant began a relationship with each other in 2007. Both
parties agree that for at least six to seven months in 2007 they were “dating exclusively.”
After 2008 the parties remained in regular contact; plaintiff described the relationship as
friendship that sometimes involved sexual intimacy. Just one week prior to the incident
that is the subject of this action the parties engaged in consensual sexual intercourse.
              In September 2012 defendant and plaintiff were at plaintiff‟s home
watching television in separate rooms. After approximately an hour, defendant entered
plaintiff‟s bedroom and began making unwanted sexual advances towards her. He had
her pinned down and was continuing his sexual advances while disregarding her
commands that he stop and leave her house. After defendant grabbed her hair and shook
her neck, plaintiff was able to free one of her hands and struck him in the throat with a
“karate chop” movement in an attempt to get him off. He immediately stopped the attack
and retreated into the bathroom.
              Moments later, defendant emerged from the bathroom enraged at plaintiff
for striking him in a manner that “could have killed him” and proceeded to hit her twice
in the face. After plaintiff fell onto the bed from the force of the blows, defendant got on
top of her, slapped her multiple times in the face, and punched her in the shoulder, back

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and thigh. Defendant then threw the television remote at her, barely missing her head.
Defendant made additional verbal threats, after which he left the house. Plaintiff called
911 and police responded but did not file a report or take pictures. Plaintiff took her own
pictures of her injuries.
               Two days after the incident, plaintiff filed an application for a restraining
order against defendant, including copies of the pictures, in an attempt to obtain a
temporary restraining order. A few days later she obtained such an order under the
DVPA. She also filed a request for a restraining order, to which defendant filed a
response, denying all allegations. He claimed that when plaintiff was on the bed, he
leaned over to kiss her goodbye and she struck him with the karate chop. He stated his
windpipe was blocked and he could not breathe. When he recovered he tried to explain
to plaintiff that she could have killed him but she said she did not realize she could have
hurt him so badly. He then left, telling her he did not want to see her again.
               Both parties testified at the hearing. At the conclusion of the hearing the
court issued a three-year restraining order. It found the parties had a dating relationship
from 2007 through the date of the incident. It also found by a preponderance of the
evidence that defendant committed domestic violence as defined in section 6203 and did
not act in self-defense.


                                        DISCUSSION


1. Sufficiency of the Evidence
               We review a protective order issued under the DVPA for substantial
evidence, that is “„whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted,‟ supporting the court‟s finding. [Citation.]” (Sabbah v.
Sabbah (2007) 151 Cal.App.4th 818, 822-823.) “„We must accept as true all
evidence . . . tending to establish the correctness of the trial court‟s findings . . ., resolving

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every conflict in favor of the judgment.‟ [Citation.]” (Id. at p. 823.) It is not our role to
reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in
the testimony, and we will not disturb the order if, as here, there is evidence to support it.
(People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
              The DVPA gives the family law court the authority “to prevent the
recurrence of acts of violence . . . and to provide for a separation of the persons involved
in the domestic violence . . . .” (§ 6220.) A court may issue a restraining order under the
DVPA “if . . . an affidavit and any additional information provided to the
court . . . show[], to the satisfaction of the court, reasonable proof of a past act or acts of
abuse.” (§ 6300.) Abuse includes “[i]ntentionally or recklessly . . . caus[ing] or
attempt[ing] to cause bodily injury” and “[s]exual assault.” (§ 6203.)
              Defendant claims there is insufficient evidence to show the parties had a
dating relationship or the existence of any abuse. Both arguments fail.
              Domestic violence includes “abuse perpetrated against” “[a] person with
whom the [defendant] is having or has had a dating or engagement relationship.”
(§ 6211, subd. (c), italics added.) A “„[d]ating relationship‟” is defined as “frequent,
intimate associations primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.” (§ 6210)
              Defendant‟s argument he and plaintiff did not have a dating relationship is
flawed.1 He focuses solely on the nature of their relationship at the time the abuse


       1  Defendant maintains the trial court “was not legally qualified to decide this
case” (boldface omitted) because he and plaintiff were not in a dating relationship. It is
not clear what defendant means by his claim the court was not “qualified.” If he is
asserting the court had no jurisdiction to hear the case, he is incorrect. The domestic
violence restraining order was sought under the DVPA and the superior court has
jurisdiction over all proceedings arising under the Family Code. (§ 200.) If he is
asserting the court could not hear the case under the DVPA because there was no
evidence of a dating relationship, he is again incorrect. Whether there was a dating
relationship was one of the disputed factual questions the court had to determine.

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occurred and ignores the fact they had previously been in a dating relationship.
Defendant himself testified he and plaintiff dated exclusively for a year and
nonexclusively for four years thereafter. He fails to show, or even discuss, why their
relationship during this time does not meet the description set out in section 6210.
              Plaintiff‟s reliance on Oriola v. Thaler (2000) 84 Cal.App.4th 397 is
misplaced. Oriola defined a dating relationship for purposes of DVPA. But the Oriola
definition predates the enactment of section 6210, which controls. (See People v. Rucker
(2005) 126 Cal.App.4th 1107, 1116.)
              Defendant‟s contention there was insufficient evidence of abuse also fails.
Plaintiff submitted a declaration and testified at the hearing about the abuse. She also
submitted photographs of her injuries. As shown above, these laid out a prima facie case
sufficient to support a finding of abuse. It is irrelevant that defendant‟s testimony and
declaration contradicted plaintiff‟s. The trial court is the finder of fact and chose to
believe plaintiff and disbelieve defendant. (Galbiso v. Orosi Public Utility Dist. (2008)
167 Cal.App.4th 1063, 1087, fn. 13 [fact finder may reject witness testimony as part of
credibility assessment].) We do not reweigh credibility. (People v. Xiong, supra, 215
Cal.App.4th at p. 1268.)


2. Admission of the Photographs
              Defendant also challenges the trial court‟s admission of the photographs
offered by plaintiff. He maintains there was insufficient foundation, and also contends
the bruises were not caused by the abuse but resulted from a car accident in which
plaintiff was involved a couple of weeks earlier. Neither claim persuades.
              A photograph must be authenticated before it may be admitted into
evidence. (Evid. Code, § 1401, subd. (a) [requiring authentication of a “writing”]; People
v. Beckley (2010) 185 Cal.App.4th 509, 514 [photograph is “„writing‟” under Evid. Code,
§ 250].) “[T]he testimony of a person who was present at the time a film was made that it

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accurately depicts what it purports to show is a legally sufficient foundation for its
admission into evidence.” (People v. Bowley (1963) 59 Cal.2d 855, 859.)
              The trial court‟s determination that a proper foundation has been laid for
the admission of evidence will not be disturbed on appeal absent a showing of abuse of
discretion. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.) An
abuse of discretion is “established by „a showing the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice.‟” (People v. Carrington (2009) 47 Cal.4th 145, 195.)
              Plaintiff testified she took the photographs herself and they depicted exactly
what they purported to show, bruises on her body sustained during the altercation. On
top of this, plaintiff produced the camera and phone used to take the photographs, which
showed the pictures were electronically dated on the day of the incident. Therefore the
photographs were sufficiently authenticated.
              Defendant argues the dates on the photographs are susceptible to
manipulation and the coloring of the bruises shows they did not appear on the day the
photographs were taken. Defendant also argues the color of the bruises2 did not
substantiate the finding they occurred as a result of the abuse. Defendant further offers
an extensive discussion of why evidence of the bruises as shown in the pictures is suspect
and why it is more believable that they were caused by plaintiff‟s car accident. With all
these arguments defendant is asking us to reweigh evidence, which, as stated above, is
not our function. (People v. Xiong, supra, 215 Cal.App.4th at p. 1268.)




       2 We may not consider the table showing the age of a bruise as determined by its
color that defendant appended to the opening brief as it is outside the record. (In re
Tobacco Cases I (2004) 124 Cal.App.4th 1095, 1103, fn. 4.)

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3. Self-Defense
              Defendant next argues the trial court erred in rejecting his self-defense
claim. He points to the court‟s findings that both parties “hit each other” (italics omitted)
and emphasizes his version of the events. He then leaps to the conclusion this was
“mutual combat.” This was despite the court‟s statement it did not “want to use the term
mutual.” We defer to the court‟s order when there is substantial evidence to support it, as
here. (Sabbah v. Sabbah, supra, 151 Cal.App.4th at pp. 822-823.)
              Further, once again defendant‟s contention the appropriate level of review
is de novo is incorrect. The trial court‟s decision to disallow defendant‟s self-defense
claim came from its “application of the law to the facts[, which] is reversible only if
arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th. 706, 712.)
              To establish he was acting out of self-defense defendant had to prove,
among other things, that he reasonably believed that he was in imminent danger of
suffering bodily injury. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.)
Additionally, if through his own wrongful conduct, he created the circumstances under
which his plaintiff‟s attack or pursuit is legally justified, he may not invoke self-defense.
(People v. Randle (2005) 35 Cal.4th 987, overruled on another ground in People v. Chun
(2009) 45 Cal.4th 1172, 1201.)
              The record shows defendant‟s wrongful conduct caused plaintiff‟s use of
violence and that he was not in imminent danger when he retaliated. Defendant was the
initial aggressor when he pinned and struck plaintiff before she hit him in the throat. His
attack following plaintiff karate chopping him did not occur until after he had removed
himself from the situation by retreating into the bathroom. Plaintiff gave no reason for
defendant to think she was going to harm him again after he had retreated. Defendant
had ample opportunity to leave the residence and remove himself from any potential
future danger. Accordingly, the trial court did not act arbitrarily or capriciously by
disregarding defendant‟s self-defense claim. The record shows defendant created the

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circumstances causing plaintiff‟s karate chop to be legally justified and he was not in
imminent danger when he retaliated.


4. Gender Equality in Italy
              In rendering its decision the trial court made a comment to defendant that
he could “be a very controlling person” and that “perhaps in your culture or where
you[ are] from maybe you treat women differently than here, but that‟s not the way it [is]
here.” Defendant, who is from Italy, set out a three-page rebuttal in his opening brief,
citing, among other things, examples of women‟s equality in Italy and the Divine
Comedy. We do not rely on the court‟s comment in reaching our decision nor do we
consider plaintiff‟s discussion of this issue.


                                       DISPOSITION


              The order is affirmed. Plaintiff is entitled to costs on appeal.




                                                     THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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