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Pham v. Trinh (In re Marriage of Pham)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 13, 2020
H045568 (Cal. Ct. App. Feb. 13, 2020)

Opinion

H045568

02-13-2020

In re the Marriage of TOM PHAM and CYNTHIA TRINH. TOM PHAM, Respondent, v. CYNTHIA TRINH, Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 2014-FL-5-002054)

Cynthia Trinh appeals a domestic violence restraining order protecting her husband and two children. She contends it was issued without adequate evidentiary support, that certain evidence should not have been admitted at the hearing, and that she was denied her constitutional right to due process. Finding no error, we will affirm the order.

I. BACKGROUND

Tom Pham and Cynthia Trinh married in 1999 and have two daughters together (born in 2005 and 2007). Pham filed for dissolution at the beginning of 2014. While the dissolution proceeding was pending, Trinh made threats toward Pham. She sent e-mails saying, "Once divorce is closed, you will still need to run for your life;" "One day, I want to see you get 100 stitches on your face;" "I will take justice in my hands. [] I really mean it;" and "I will kill you asshole." Then she came to Pham's house, with the children, and banged on and kicked the door. When Pham opened it, Trinh was yelling (in Vietnamese), "either you die, or I die." Pham video recorded the encounter using a handheld device. Afterward, he reported the incident and the threatening e-mails to police.

Pham requested a domestic violence restraining order in family court (Fam. Code, § 6200 et seq.). The court issued a temporary order and scheduled a hearing to determine whether a permanent order was warranted. At the hearing, Pham testified about the threatening e-mails and the incident at his house. The e-mails and the video were admitted into evidence. Trinh testified she did not send the e-mails; though she acknowledged they came from her account, she explained that Pham had access to it and had sent them himself, to set her up. A technology expert also testified on Trinh's behalf, opining that Pham did have access to the account and it was therefore "highly possible" he could have sent the e-mails.

The family court granted Pham's request for a restraining order. It ordered Trinh to stay at least 300 yards away from Pham and the children, and not to contact them. Sole legal and physical custody of the children was given to Pham; exceptions to the stay away and no contact orders were included to allow Trinh supervised visitation. The restraining order expired after two years, but by its terms the custody orders remained in effect until further order of the family court.

The restraining order is no longer in effect, having expired October 18, 2019. This appeal is not moot, however, because the issuance of a domestic violence restraining order can affect future child custody decisions involving these parties even after its expiration. (See Fam. Code, § 3044, subd. (a) [rebuttable presumption against awarding custody to a parent found to have committed domestic violence within the preceding five years].) --------

II. DISCUSSION

A. SUFFICIENT EVIDENCE SUPPORTS THE ORDER

Trinh contends the family court should not have issued the restraining order because there is insufficient evidence to meet the relevant standard. In reviewing for sufficiency of the evidence, we determine whether there is any substantial evidence, even if contradicted, to support the court's finding. We do not resolve conflicts in the evidence but rather accept as true the evidence tending to establish the court was correct. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822-823.)

Under Family Code section 6300, a domestic violence restraining order may issue based on "reasonable proof of a past act or acts of abuse." Abuse is defined in Family Code section 6203. Among other things, it means to "place a person in reasonable apprehension of imminent serious bodily injury." (Fam. Code, § 6203, subd. (a)(3).) Applying that standard, we find substantial evidence to support the restraining order because there is evidence from which one could reasonably conclude Trinh's conduct made Pham fear imminent serious bodily injury. Pham testified that Trinh sent threatening e-mails that included an overt death threat then came to his house, kicked the front door, and yelled more threats. Pham also testified he was "frightened" because he believed Trinh to be "very capable" of following through on her threats.

Trinh points to contrary evidence, particularly her expert's testimony that it was possible Pham sent the e-mails to himself since he had access to Trinh's account. But the mere possibility that Pham sent the e-mails did not compel the family court to conclude that he did. The record supports the court's factual conclusion that the e-mails were sent by Trinh, even assuming Pham could access the account from which the messages came.

Trinh also references Code of Civil Procedure section 527.6, the statute authorizing civil harassment restraining orders. But the order here was issued under Family Code section 6203, which has a significantly different standard. (See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137 [civil harassment restraining order requires clear and convincing evidence of harassment and a threat of future harm; domestic violence restraining order does not require future harm, and standard of proof is preponderance of the evidence].) Substantial evidence that Trinh put Pham in reasonable apprehension of imminent bodily harm is sufficient for a domestic violence restraining order.

B. NO EVIDENTIARY ERROR

Trinh contends the family court erred by admitting the messages from her e-mail account and the video of her yelling outside Pham's house. We review a decision to admit evidence for abuse of discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) Under that deferential standard, we will not disturb the family court's ruling unless it is clearly outside of what the applicable legal rules allow.

Trinh asserts the e-mails were not adequately authenticated. "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) A writing can be authenticated by circumstantial evidence. (People v. Skiles (2011) 51 Cal.4th 1178, 1187.) " 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (People v Goldsmith (2014) 59 Cal.4th 258, 267.) Here, Pham testified he was familiar with the e-mail accounts used by his wife and the e-mails in question came from one of them. Trinh confirmed the e-mails came from her account. That she offered an alternate explanation (i.e., that Pham sent the messages to himself) does not by itself defeat the foundation for authentication provided by Pham's testimony.

Regarding the video of the incident at Pham's house, Trinh argues it is inadmissible under Penal Code section 632, which prohibits the recording of confidential communications and makes any such recording inadmissible in a judicial proceeding. (But see People v. Guzman (2019) 8 Cal.5th 673, 681 [inadmissibility rule does not apply to criminal cases because of California Constitution's truth-in-evidence provision].) Penal Code section 632, subdivision (c) defines "confidential communication" as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto." The family court found that the video does not meet that definition, and ample evidence supports that finding. First, Pham had the recording device with him when he opened the front door and displayed the device to Trinh. Second, Trinh was yelling outside the front door of the house, so it is reasonable to conclude she should have expected others to hear what she was saying. The family court was justified in finding that the recorded encounter was not a confidential communication within the meaning of Penal Code section 632.

Trinh also argues in passing that the court erred in admitting a written English translation of what was said in the video, because the interpreter who provided the translation did not sign a declaration attesting to its accuracy. But at the close of the hearing, when asked by the court if he still believed such a declaration should be submitted, Trinh's counsel responded, "Not necessary anymore." Any error in admitting the transcript without a supporting declaration cannot be challenged on appeal under the doctrine of invited error. (Horsemen's Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555 ["Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal."].)

C. NO DUE PROCESS VIOLATION

Trinh contends the restraining order was issued in violation of her right (as well as that of her children) to due process under the United States Constitution and the California Constitution. She emphasizes that the order interferes with her relationship with her children, infringing on a significant liberty interest. We acknowledge the undeniable importance of Trinh's interest in maintaining a relationship with her children. But her assertion that it has been infringed without due process is unfounded.

Procedural due process is essentially the right to adequate notice and a meaningful hearing before liberty or property is taken away. (See D & M Financial Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165, 175.) The purpose of the right is to minimize mistaken or unfair deprivations. (United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 53.) We are satisfied Trinh received due process. She asserts the order was issued without a hearing, but that is plainly incorrect. The family court conducted a hearing spanning two days. Witnesses testified for both sides and documentary evidence was received. The court took the matter under submission and considered it for several weeks before ruling. The constitutional requirements of notice and a meaningful opportunity to be heard were fulfilled.

III. DISPOSITION

The order is affirmed.

/s/_________

Grover, J.

WE CONCUR:

/s/_________
Elia, Acting P. J. /s/_________
Danner, J.


Summaries of

Pham v. Trinh (In re Marriage of Pham)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 13, 2020
H045568 (Cal. Ct. App. Feb. 13, 2020)
Case details for

Pham v. Trinh (In re Marriage of Pham)

Case Details

Full title:In re the Marriage of TOM PHAM and CYNTHIA TRINH. TOM PHAM, Respondent,…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Feb 13, 2020

Citations

H045568 (Cal. Ct. App. Feb. 13, 2020)