D054548 Super. Ct. No. DV028614
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Edward P. Allard, III, Judge. Affirmed.
Roland Romero (Roland) appeals the family court's issuance of a protective order under the Domestic Violence Prevention Act (the DVPA; Fam. Code, § 6200 et seq.) prohibiting him from contacting his former wife, June Romero (June). Roland, who appears in propria persona, raises a variety of contentions. We find no abuse of discretion and affirm the order.
Further statutory references are also to the Family Code unless otherwise specified.
In late December 2008 June applied for a protective order against Roland under the DVPA. The application states the "divorce has been going on for years," and she had a previous protective order against him in another case that expired in November 2008. As a ground for the order, the application declares that in an e-mail Roland wrote he "has
We repeat the e-mails verbatim.
In a December 26, 2008 e-mail, Roland sent June a news article to the effect, "Ninth body found at site of Santa-suit killings." Roland stated in the e-mail, "This is exactly what I'm trying to prevent and your arguing to continue! I hope the 50 bucks you got for diabetes helps ease your guilt. Those that suffer behavioral alterations due to blood glucose should be warned however, your philosophy is to get a restraining order and then deny all support. Imagine what the world would think given the record in this case if something like this or worse were to happen? I'm doing all I can to prevent such a disaster, but brad and you seem to think it is all a joke."
A December 30, 2008 e-mail from Roland to the "Elkins Task Force," at the Judicial Council of California, Administrative Office of the Courts, states: "In the wake of the tragedy in Covina—as a person who suffers from and truly understands mental disability and confusion that results in the taking of one's own life or that of others—I implore this task force to recommend that provisions for preventative detection and treatment of dangerous psychological conditions, albeit temporary, be mandatory consideration in such highly emotionally charged proceedings as dissolution of marriage or child custody. These senseless events are definitely preventable with the proper approach! Yet they occur over and over. [¶] I have specifically warned both the trial and appellate courts as to the causes and prevention of such an event several times over the last three years, but they have not been moved or taken any affirmative action. Action by the appellate court in my case may have even help to prevent this horrible tragedy from occurring. The appellate court mentioned a medical condition without anymore regard." The e-mail concludes with, "With great sadness and regret, Roland Romero."
In an October 2008 e-mail to June, Roland stated, "What doesn't kill me makes me stronger and meaner. I'm just getting started on pay back thanks to Medi-Cal and SSI." In an August 2008 e-mail to June he wrote, "I think my sons and I have suffered long enough because of you, so . . . tick-tock . . . the clock goes on. In the words of one Family Law Attorney—duck and get your checkbook ready!"
In a February 2008 e-mail, Roland wrote to June:
"If you think that your legal fees and costs have been large, you haven't seen anything yet (half of the money you have spend is definitely my money)! From rough estimates, get ready to spend 100k or more. As long as you're paying for any of your evil deeds, in any and every way (even to a scum-blood-sucking-low-life leach of a mediocre attorney), I could not be more ecstatically delighted (YOU AND OTHERS AT FAULT HAVE ABSOLUTELY NO CHANCE OF GETTING AWAY WITH ALL THE IMMORAL THINGS YOU'VE DONE OVER THE LAST 28 YEARS BY ANY MEANS OR PRAYERS. I PROMISE ON THE SOULS OF MY GRANDCHILDREN, NOTHING ELSE MATTERS TO ME)!"
The February 2008 e-mail also states "pay-back is really a bitch." Further, it states, "you and your others still have a gigantic debt to pay to me, which will be paid no matter what. I spend every second of every day contemplating an appropriate method of payment." The e-mail concludes with, "Your most determined, unstoppable, and visceral enemy."
Additionally, the February 2008 e-mail includes this language: "DISCLAIMER: Not one word herein should be construed by anyone as meaning violent or threatening intentions, and instead the entire contents is to be taken by the strict literary meaning. There have not been, and will be any elucidated threats of violence or intent, either expressed or implied, within the entirety of this document."
The record shows that some of the e-mails went first to June's employer, who then provided them to June. Her application for a protective order states that her employer's security department felt Roland "is a potential threat."
In his response, Roland claimed his e-mails were protected by his First Amendment right of free speech. He also claimed that because of the "disclaimer" in the February 2008 e-mail, it could not be a basis for a protective order.
The court granted June's ex parte request for a temporary restraining order. A hearing for a permanent protective order was held on January 21, 2009. June appeared in person and Roland appeared telephonically. After the hearing, and based on a preponderance of the evidence, the court issued a protective order in June's favor for a period of five years. The order requires Roland to stay at least 100 yards away from June, her home, her vehicle, and her place of employment.
June has not filed a respondent's brief. Accordingly, we decide the appeal on the appellate record and the opening brief. (Cal. Rules of Court, rule 8.220.) Roland has waived oral argument.
Under the DVPA, the trial court is authorized to issue a protective order enjoining a party from engaging in specific acts of abuse against a former spouse. (§§ 6211, subd. (a), 6218, 6320, 6340, subd. (a).) The court may issue such an order based on an affidavit that shows, to the court's satisfaction, reasonable proof of a past act or acts of abuse. (§ 6300.) For purposes of the DVPA, the term "abuse" includes "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person . . . ." (§ 6203, subd. (c).) The term "abuse" also includes any action the court may enjoin, such as threatening behavior and harassment. (§§ 6203, subd. (d), 6320.)
The court's issuance of a protective order under the DVPA is discretionary (§ 6300), and we review the court's ruling for abuse of discretion. We do not reverse for abuse of discretion unless we conclude no judge would reasonably make the same order under the same circumstances. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) The appropriate test for abuse of discretion is whether the court's ruling exceeds the bounds of reason. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
On this record, we find no abuse of discretion. From Roland's e-mails to June, the court could reasonably find "abuse" within the meaning of the DVPA. June would naturally fear for her safety based on Roland's references to the Santa-suit murders, his threatening tone, and his intention to seek revenge. As the court explained to him, "You can't send documentation of both a threatening and harassing manner and then think that you can get away with that by simply putting a disclaimer on it." The court also advised Roland that while he could communicate with June regarding the underlying litigation, "your communications with her go well beyond the type of communication that would be recognized as being consistent with your First Amendment rights."
Roland raises a variety of contentions, none of which shows any abuse of discretion. He asserts the evidence of harassment was not recent enough to justify a protective order. June, however, moved for the order three days after she received Roland's December 2008 e-mail that included an article on the "Santa-suit killings," and stated, "This is exactly what I'm trying to prevent." The earlier e-mails provided proof of an ongoing and escalating course of harassment.
Further, Roland asserts the trial court was disrespectful to him during his telephonic appearance, and thus, as a disabled person, he was unable to present his best defense. The reporter's transcript shows that during a comment by the court, Roland stated, "Wait. I would like. . . ." The court responded, "No, no, Mr. Romero. You don't tell me to wait." The court added, "You are not the judge. I am the judge. I tell you when to wait, and I will tell you when you can talk. Don't ever cut me off and tell me to wait. Do you understand that?" The court's comments, however, did not impede Roland's access to the hearing. Contrary to his position, the court did not preclude him from presenting oral testimony or other evidence. The issue does not bear on whether the court abused its discretion.
Roland also asserts the court erred by finding section 2030 is inapplicable to DVPA proceedings. Section 2030, subdivision (a)(1) provides that "[i]n a proceeding for dissolution of marriage, for nullity of marriage, or legal separation of the parties," the court may order one party to pay the reasonable attorney fees of the other party incurred "during the pendency of the proceeding," to ensure equal access to the court. Roland cites no authority for his argument that a separate DVPA proceeding pertains to a pending dissolution action for purposes of section 2030, subdivision (a)(1). The Legislature surely did not intend to give the court discretion to order the recipient of a protective order to pay the abusive party's attorney fees merely because they are also involved in dissolution litigation.
Additionally, Roland incorrectly suggests that a protective order cannot issue in a DVPA proceeding unless the party to be restrained already has a criminal record. Before issuing a protective order, "the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has any prior criminal conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code." (§ 6306, subd. (a).) In determining whether to issue a protective order, the court is to consider any conviction for a violent or serious felony, and any misdemeanor conviction involving domestic violence, weapons, or other violence. (§ 6306, subd. (b)(1).) Section 6306 does not indicate that only a convicted criminal can be restrained. To the contrary, subdivision (g) of section 6306 provides: "Nothing in this section shall delay the granting of an application for an order that may otherwise be granted without the information resulting from the data base search. If the court finds that a protective order under this part should be granted on the basis of the affidavit presented with the petition, the court shall issue the protective order and shall then ensure that a search is conducted pursuant to subdivision (a) prior to the hearing." The court properly issued June a protective order based on her affidavit and evidence.
Further, Roland argues the court should have granted his request that June notify him whenever she intends to travel from her home in San Diego to visit their daughter in Riverside, where he lives. He wanted to avoid violating the protective order by visiting the daughter at the same time. We cannot fault the court's ruling. June was opposed to the condition because she did not want Roland to know her whereabouts. June said she always notifies her daughter before visiting, and Roland can contact his daughter to ensure he visits at other times.
We need not address Roland's other points, which are similarly unavailing. We have carefully reviewed the entire record, and each of his arguments, and are satisfied there is no abuse of discretion.
The order is affirmed.
McCONNELL, P. J.