Filed 2/19/15 A.T. v. B.K. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



A.T.,

         Plaintiff and Respondent,                                       E058479

v.                                                                       (Super.Ct.No. IND1201194)

B.K.,                                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge.

Affirmed.

         Bartell & Hensel, Donald Hensel and Lara J. Gressley for Defendant and

Appellant.

         Law Offices of Renell E. Burch, Tecla M. Lunak and Renell E. Burch; A.T., in

pro. per., for Plaintiff and Respondent.

         Plaintiff and respondent A.T. requested, and was granted by the trial court, a

restraining order pursuant to the Domestic Violence Prevention Act (DVPA), Family



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Code sections 6200 et seq., against her former boyfriend, defendant and appellant B.K.

Defendant contends that plaintiff did not meet her burden of proving by a preponderance

of the evidence that he committed domestic violence against her, and argues the trial

court erred by denying him the opportunity to cross-examine plaintiff regarding whether

she had any prior felony convictions. We affirm.

                    I. FACTS AND PROCEDURAL BACKGROUND

       Plaintiff dated defendant for two years, ending in June 2012, less than a month

after the birth of their child, when plaintiff moved out of the house they had previously

shared. In June and July 2012, plaintiff and defendant remained in contact and—though

defendant expressed an interest in rekindling their relationship that plaintiff did not

share—plaintiff testified that she did not initially have any concerns about her safety.

       Plaintiff presented evidence, however, that beginning in July 2012, defendant

started to act in a manner that caused her to fear for her safety, and that of others,

including their child.1 This behavior included showing up at plaintiff’s home, uninvited

and at odd hours, even though she was living in a gated community and had instructed

security at the front gate not to allow defendant to enter2; badgering plaintiff about her



       1  In addition to plaintiff’s own testimony, the trial court also heard testimony
from plaintiff’s mother and two men plaintiff had dated, who testified regarding those
parts of defendant’s behavior they had witnessed, and who corroborated or added to
plaintiff’s own testimony.

       2  Plaintiff speculated that defendant, who is a deputy in the Riverside County
Sheriff’s Department, used keys available to law enforcement to enter the back gate of
the community. She admitted on cross-examination, however, that she had not
                                                                   [footnote continued on next page]

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relationships with other men, and engaging in harassing and intimidating behavior

towards men who were currently or had previously dated her; making statements that

suggested defendant was following plaintiff, or at least had information regarding her

whereabouts; telling plaintiff he had a dream that he had hurt their son to make her suffer;

and making statements that plaintiff understood to suggest defendant would kill her and

her son, if plaintiff and defendant could not be together.

        There is no need for us to detail every incident described by plaintiff and her

supporting witnesses, but some specific examples are in order. In August 2012, during

one of the occasions when defendant had appeared uninvited at plaintiff’s home, another

man (one of plaintiff’s witnesses) called plaintiff on her cell phone. Defendant grabbed

the cell phone, answered it, profanely threatened the caller, and then threw the phone,

breaking plaintiff’s blinds.

        In September 2012, defendant initiated a physical altercation with an ex-boyfriend

of plaintiff (another of her witnesses) at a bar. Defendant head butted the ex-boyfriend

three times inside the bar, and tried unsuccessfully to get the ex-boyfriend to continue the

fight outside.

        In November 2012, there was an incident during which defendant barged in the

back door of plaintiff’s house, grabbed from a drawer a revolver that he had previously

given her for protection, and began searching the house for her current boyfriend.


[footnote continued from previous page]
[footnote continued from previous page]
investigated the issue, and had no specific evidence as to how defendant entered the
community.

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Defendant eventually left, but not until after frightening plaintiff to the point that, when

she walked away from him to try to get their child and leave for her mother’s house, she

“honestly thought he was going to put a bullet in the back of [her] head.” This incident

continued some time later with a confrontation between defendant and plaintiff’s mother

at a gas station.

       In December 2012, plaintiff twice discovered illegal drugs in her car. She

suspected that defendant had planted the drugs because he had the only spare key to the

car, no one else had access to the car, and the incidents coincided in time with multiple

calls by defendant to dispatch for the Riverside County Sheriff’s Department to report

plaintiff for reckless driving.

       Defendant presented a very different account of his behavior since July 2012,

primarily through his own testimony.3 For reasons discussed more fully below, however,

we need not describe his version of events in any detail. For purposes of resolving the

present appeal, it is sufficient to note that defendant denied having engaged in any

inappropriate behavior, and presented an alternative version of the relevant events.

       Plaintiff filed her request for a domestic violence restraining order on January 15,

2013. The trial court heard the matter on February 4, 2013, and issued its order granting

the restraining order on the same date.4


       3In addition to defendant himself, one other witness testified briefly on
defendant’s behalf.

       4 Additional facts will be discussed below as necessary to address defendant’s
claims of error.

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                                       II. DISCUSSION

A. Substantial Evidence Supported the Court’s Finding that Plaintiff Committed

Acts of Domestic Violence.

       Defendant argues that plaintiff did not meet her burden of proof to show by a

preponderance of the evidence that defendant committed “abuse” within the meaning of

the DVPA, and that the trial court abused its discretion by ruling otherwise and issuing

the requested restraining order. We find no abuse of discretion.

       We review the trial court’s issuance of a restraining order under the DVPA for

abuse of discretion. (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) “However,

‘[j]udicial discretion to grant or deny an application for a protective order is not

unfettered. The scope of discretion always resides in the particular law being applied by

the court, i.e., in the “‘legal principles governing the subject of the action . . . .’”’” (Id. at

1264-1265.) We review the factual findings necessary to support the protective order for

substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823

(Sabbah).) In examining the record for substantial evidence, “[o]ur sole inquiry is

‘whether, on the entire record, there is any substantial evidence, contradicted or

uncontradicted,’ supporting the court’s finding.” (Id. at p. 822.)

       The testimony of plaintiff and her supporting witnesses, which we briefly

summarized above, constitutes substantial evidence supporting the court’s finding that

defendant had committed abuse within the meaning of the DVPA, justifying issuance of

the restraining order. Indeed, defendant has not contended on appeal that the behavior of

defendant, as described by plaintiff and her supporting witnesses, does not rise to the

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level of abuse within the meaning of the DVPA. Defendant presented an alternative

version of events, but whether plaintiff’s evidence was contradicted or uncontradicted is

irrelevant to whether the court’s decision was supported by substantial evidence.

(Sabbah, supra, 151 Cal.App.4th at p. 822.) Because the trial court’s ruling was

supported by substantial evidence, we conclude defendant has demonstrated no abuse of

discretion.

       Defendant’s argument in support of the contrary conclusion is based primarily on

his interpretation of the trial court’s oral explanation of its ruling. This approach runs

counter to the general principle that “an appellate court reviews the ruling of the trial

court, not its rationale, and may affirm a trial court ruling on any proper basis presented

by the record, whether or not relied upon by the trial court.” (Cates v. California

Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1312.) Defendant’s parsing of

the trial court’s oral statement of its reasoning, therefore, fails to address the matter at

hand, namely, whether the trial court’s finding that plaintiff had met her burden of proof

was supported by substantial evidence.

       Moreover, we disagree with defendant’s characterization of the trial court’s

reasoning. He argues that the trial court determined defendant to be “a credible witness,”

but found only that it was “possible” that what plaintiff and her witnesses said was true.

The court noted that defendant had “every incentive” to present himself in court very

differently than he was depicted in plaintiff’s testimony, especially given that defendant

had been placed on administrative leave by his employer, the Riverside County Sheriff’s

Department, for reasons related to this case. Defendant argues that “a mere possibility

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does not rise to the level of preponderance of the evidence,” and that “[a]ll litigants in

every case have an incentive,” so the trial court abused its discretion by ruling plaintiff to

have proven her case to a preponderance of the evidence “‘in spite of’ [defendant’s]

credibility.”

       Defendant’s argument, however, is based on purported factual findings that the

trial court did not make.5 The trial court did not find defendant credible, as defendant

would have it; the trial court stated that defendant “did come across as very credible as a

witness,” but ultimately gave weight to the lingering “question in [the court’s] mind

about whether the things he testified to were exactly as he represented them.” In other

words, the court did not find defendant credible, or at least not more credible than the

other witnesses at trial, including plaintiff, who also “came across as being credible.”

       Similarly, the trial court did not just find a “possibility” that plaintiff and her

witnesses were telling the truth, and round that possibility up to a preponderance of the


       5  The full text of the portion of the reporter’s transcript on which defendant’s
arguments rest is the following:
        “I have to say [defendant] did come across as very credible as a witness. He did,
[and] so did [plaintiff and the other witnesses]. All of the people came across as being
credible. They came across as being motivated in a different way perhaps.
        “I do note though that it’s possible that everything that [A.T.] and her witnesses
have said is true and that [defendant] having been taken out of the department on
administrative leave would have every incentive to sit there very controlled and put a
different face on what was going on than the face that I heard from the other side.
        “So in spite of the fact that [defendant] did come across as credible, I still have a
question in my mind about whether the things he testified to were exactly as he
represented them. I don’t suppose I’ll ever know. We don’t have a jury of 12 people
here to take a vote and make a decision. It’s up to me to make that decision.
        “As I’ve indicated, I believe that the burden of proof has been met and a
restraining order must issue.”

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evidence. Rather, it noted “that it’s possible that everything that [plaintiff] and her

witnesses said is true,” acknowledged that defendant had “put a different face on what

was going on,” and recognized that it was the court’s duty to “make a decision” about

how much weight to give the conflicting evidence. To read the court’s discussion of its

reasoning as defendant does, to amount to a finding of fact that plaintiff raised only a

“mere possibility” that events occurred as described by plaintiff and her witnesses, is

inaccurate, to say the least.

       In short, the court’s conclusion and ruling, having considered all the evidence, was

that plaintiff had met her burden of proof: “Without going into what level I think that the

proof has risen to, I think it is clearly past the preponderance of the evidence standard. I

think it clearly is.”6 The testimony of plaintiff and her witnesses regarding defendant’s

harassing and violent behavior constitutes substantial evidence in support of that ruling,

regardless of defendant’s contradictory testimony. Defendant’s parsing of the trial

court’s oral statement of its reasoning is unpersuasive. We find no abuse of discretion.




       6   Defendant’s suggestion at oral argument that the trial court failed to understand
and properly apply the preponderance of the evidence standard is belied by the transcript
of the proceedings, during which the trial court explained the standard correctly, and at
some length: “…if you think about the scale of justice . . . you just have to tip the scale
ever so slightly one direction or the other. And if, after I’ve heard all of the testimony, I
feel like the scale has been tipped slightly even in the favor of [plaintiff], I have to grant
the restraining order. If I feel it’s been tilted slightly in favor of [defendant] or that at the
end of it I really can’t tell it’s been tilted one way or the other, I have to deny the
restraining order. It’s really that simple.”

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B. The Court Did Not Err by Sustaining Plaintiff’s Objection to Defendant’s

Inquiry Whether Plaintiff’s Mother Had Any Felony Criminal Convictions.

       During cross-examination of plaintiff’s mother, defendant’s counsel asked the

following question: “Have you ever been convicted of anything, a felony?” Plaintiff’s

counsel objected on the ground of relevance, and the trial court sustained the objection.

Defendant argues on appeal that the trial court erred because it “denied [defendant] his

opportunity to inquire into whether [plaintiff] had a prior felony conviction.” We

disagree.

       Defendant cites Evidence Code section 788 as support for the proposition that

“‘[t]he fact of a witness’s felony conviction is relevant in order to determine the

credibility of that witness, subject to few exceptions [that do not apply in this case].” He

ignores, however, that “‘“the admissibility of any past misconduct for impeachment is

limited at the outset by the relevance requirement of moral turpitude.”’” (People v.

Edwards (2013) 57 Cal.4th 658, 722.) The question posed by defendant’s counsel was

not so limited, asking whether plaintiff’s mother had been convicted of any felony,

whether or not a crime of moral turpitude. The court did not prohibit defense counsel

from rephrasing the question in a manner that focused on potentially relevant

information. Instead, defense counsel moved on to other issues. Plaintiff’s objection,

therefore, was properly sustained, and defendant has demonstrated no error.




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                                    III. DISPOSITION

      The order appealed from is affirmed. Plaintiff shall recover costs incurred on

appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                             HOLLENHORST
                                                                                       J.
We concur:


      RAMIREZ
                             P.J.

      CODRINGTON
                               J.




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