In re Z.P. CA4/2

• Court: California Court of Appeal
• Decided: March 8, 2024
• Docket: E081177
• Status: Unpublished

Opinion

Filed 3/8/24 In re Z.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re Z.P. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081177

Plaintiff and Respondent, (Super.Ct.No. DPSW2300101)

v. OPINION

K.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and

Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath D. Shettigar,

Deputy County Counsel, for Plaintiff and Respondent.

1 INTRODUCTION

K.M. (father) appeals from an order of the juvenile court finding that he possessed

firearms in violation of a restraining order. He contends the court misunderstood the law

as prohibiting access to firearms, when the law only prohibits possession or ownership of

firearms. He also argues the evidence was insufficient to show he possessed firearms at

the time the restraining order was in effect. We affirm.

PROCEDURAL BACKGROUND

On April 4, 2023, the Riverside County Department of Public Social Services

(DPSS) filed a Welfare and Institutions Code1 section 300 petition with regard to 15-

year-old Z.T.P., 11-year-old Z.L.P., and 5-year-old K.S.M. (the children). The petition

stated that R.S. (mother) was the children’s mother, father was K.S.M.’s father, and the

father of Z.T.P. and Z.L.P. was deceased. The petition alleged that the children came

within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure

to protect), and (j) (abuse of sibling). The specific allegations included claims that father

abused Z.T.P. by choking him and slamming him against a wall; father and mother had a

history of domestic violence; and father had a history of exhibiting volatile behavior and

administering inappropriate discipline on the children, including hitting them with a belt

and choking them.

The social worker filed a detention report stating that, on March 30, 2023, DPSS

received a referral alleging physical and emotional abuse and general neglect. The

1 All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.

2 referral alleged that, on March 28, 2023, father and Z.T.P. got into an argument, Z.T.P.

raised his voice, and father responded by slamming him to the ground and choking him.

Mother was able to separate them, and Z.T.P. ran into his bedroom; however, father later

went to the bedroom and began choking him again. Z.T.P. escaped from the house,

mother followed him, and they stayed in a hotel that night. The next day, mother went

home, and father saw her in the car. He began banging on the car, so mother drove away

and contacted the police. When she returned to the home, father was leaving with K.M.

Mother obtained an emergency protective order (EPO), which she showed to the

social worker and said she planned on getting a permanent restraining order. Mother said

she did not ever plan on letting father back into the house, and she changed the locks on

the front door. She reported that, in 2018, father was arrested for domestic violence, and

he had a history of abusing the children he had with other women. Mother further

reported that she and father had a history of domestic violence, and he had pushed her

against the wall and choked her before.

On March 31, 2023, mother informed the social worker that father returned to the

home in the middle of the night and was banging on the front door, but she did not allow

him in the home. She called 911, and father fled before the police arrived.

The social worker contacted father and interviewed him. Father denied denied any

form of discipline with Z.T.P. or Z.L.P. and denied any domestic violence history. He

also denied that he went to the home on March 31, 2023. On April 1, K.M. was removed

from father’s care without issue.

3 The court held a detention hearing on April 5, 2023. County counsel

recommended the court find that the children came within the provisions of section 300,

detain them, and set a jurisdiction/disposition hearing. Mother’s counsel requested that

mother retain custody of the children, noting she did obtain an EPO and filed for a

restraining order. Father submitted on the recommended findings. The court found that

Z.T.P. came within section 300, subdivisions (a) and (b), and Z.L.P. and K.M. came

within subdivisions (b) and (j). The court detained them in foster care.

With regard to a restraining order, the court asked mother if father owned or had

access to any firearms, parts of firearms, or ammunition. Mother said, “yes,” and said,

“They’re with him.” She said Z.L.P. told her she saw father take a gun from his car when

they were at the pumpkin patch. Father denied that he owned, possessed, or had access to

any firearms or ammunition. The court stated it was not going to question Z.L.P. in open

court, and it ordered the social worker to interview her regarding the firearms she saw.

The court then stated it was going to make the finding that father owned, possessed, or

had access to a firearm, “description unknown,” and that it was going to call it a “ghost

gun because it’s not registered to the father.” The court noted it had reviewed father’s

CLETS (California Law Enforcement Telecommunications System) report, and father

had no firearms registered to him. The court also acknowledged that father denied

firearm ownership.

The court issued a temporary restraining order (TRO) protecting mother and the

children. The TRO included the terms that: (1) father could not “own, possess, have,

buy or try to buy, or receive, try to receive, or in any other way get any” firearms or

4 firearm parts; (2) within 24 hours of receiving the order, father was required to “sell to or

store with a licensed gun dealer or turn in to a law enforcement agency any prohibited

items [he had in his] immediate possession or control”; and (3) within 48 hours of

receiving the order, father was required to “file a receipt with the Court that proves that

all prohibited items have been turned in, sold, or stored.” The court then stated: “The

Court does find that you have the following prohibited items: ghost gun, with unknown

description. Location, unknown.”

Father’s counsel asked, “Is that being ordered 48 hours from today?” The court

responded, “If he possesses it, yes. . . . And, of course, right now he’s not acknowledging

possession of the firearm.” The court said it was going to set a hearing in 10 days on the

firearm issue since there was “conflicting information.” It then set the hearing for April

13, 2023, and ordered DPSS to prepare a report of the interview with Z.L.P. on the

statements she made. The court ordered father to move out of the family’s home

immediately. It also set a hearing regarding a permanent restraining order and the

jurisdiction hearing for May 10, 2023.

Interview with Z.L.P. Regarding Firearms

The social worker met with Z.L.P. on April 10, 2023, and Z.L.P. said she was

aware that father had two guns, which she referred to as pistols. She indicated that she

came across one of the pistols in the glove compartment in his car. She could not recall

exactly when she saw the pistol but said it was “ ‘months ago.’ ” Z.L.P. stated that, since

then, the pistols have been in lockboxes, which father kept in the trunk of his car. Z.L.P.

denied telling anyone about the pistols until the police arrived at mother’s home,

5 regarding the incident between Z.L.P. and father. At that time, Z.L.P. made mother

aware of the pistols.

Firearms Hearing

On April 13, 2023, the court held a hearing, and father’s counsel requested the

matter be trailed to the next day, since Z.L.P. was not present and he wanted to cross-

examine her. The court agreed and trailed the matter.

At the outset of the hearing on April 14, 2023, the court confirmed the parties

received the report it had received regarding the information on father’s possession of

firearms. Then Z.L.P. testified, and the court first confirmed that she was 11 years old

and understood the difference between the truth and a lie. Z.L.P. initially testified that

the first time she saw father with a gun was when they came back from the pumpkin

patch. However, upon further questioning, she said it was maybe around one year ago.

The gun was in the glove compartment of his car, and father put it in a lockbox. Z.L.P.

said the gun was black and looked like a pistol. She said she saw him put it in the

lockbox, and he took the lockbox from the car into the home. Z.L.P. said the lockbox

was on top of the closet. When asked if she ever saw that gun again later, she said she

saw one that looked exactly like it. Z.L.P. testified that, approximately five months prior

to the hearing, she saw a gun in his glove compartment. Father had asked her to get his

slippers, and she accidently hit and opened the glove compartment and saw a black pistol.

Z.L.P. said she also saw father putting together a gold gun in the living room. She did

not know what he did with that gun. When asked if she knew where the guns were

currently located, she said, “I think they’re inside a lockbox still.”

6 The court then asked Z.L.P. a few questions, and she said the last time she saw the

lockbox, it was in the closet at the house where she was living before she went to foster

care; however, it was not there anymore. Z.L.P. said father took the lockbox with him

when he left the house. The court asked if father left the house on the same day she and

the other children were taken away, and she said no, it was the day mother called the

police.2 The court then asked if the gold gun was a pistol, and she said it was. The court

asked if the gun had a clip that pushed into the handle of the gun. Z.L.P. said, “Is it a

rectangle?” When the court confirmed it was “kind of a long rectangle,” she said, “yes.”

When the court asked if both guns had a clip, Z.L.P. said, “I didn’t see when he

assembled the black one, all I saw was the gold one.” She then confirmed that the gold

gun definitely had a clip, and that both guns fit in one’s hand.

Father’s counsel cross-examined Z.L.P. and asked when she saw the gold gun in

the living room, and she said she could not remember exactly. However, she confirmed

she saw the other guns about five months prior. Z.L.P. confirmed that she had not seen

any gun in the past five months. The court then asked questions to clarify when she last

saw the guns, and she said she saw the black pistol sometime between Christmas and

Valentine’s Day. Z.L.P. said she only saw the gold gun once, when father was putting it

together in the living room, and that was some time after Christmas.

The court then asked if the parties had any additional evidence on the issue of the

guns. K.M.’s counsel said she was submitting on the court finding father owned

2 Z.L.P. appeared to be referring to March 31, 2023.

7 firearms. Father’s counsel stated for the record that when father was previously asked if

he had firearms, he stated under oath that he did not have possession or access to any

firearms. Father’s counsel then argued the court should find that father did not currently

possess a firearm and was not in any way trying to receive a firearm. Father’s counsel

further contended “the standard of ‘access to’ is not the proper standard in which we

would proceed under,” but the standard was possession. Counsel again asked that, based

on Z.L.P.’s testimony and father’s comments, the court find father was not currently in

possession of a firearm.

The court stated that the evidence could not have been much more compelling, and

that Z.L.P. was “truly credible.” It noted that she shared similar information with mother,

and that the time period when Z.L.P. saw the firearms was “of recent origin.” The court

next stated: “I don’t find the father’s testimony convincing or compelling. He certainly

could provide evidence if he no longer has these firearms as to what he did with the

firearms, but a general denial is certainly not helping him in this setting.” It then stated

its finding that father “owns, possesses, or has access to firearms or parts of firearms or

ammunition.” The court emphasized that the compelling part was that father had not

complied with its order to divest himself of the firearms and provide a receipt within the

time period specified in the TRO. The court then completed and filed the form indicating

father had firearms and was not in compliance with its April 5, 2023 order to surrender

them, and that the court had not received any receipts or proof of compliance.

8 DISCUSSION

Substantial Evidence Supports the Court’s Finding That Father Was Not in Compliance

with the TRO with Regard To Surrendering His Firearms

Father argues the court erroneously found he violated the firearms restriction order

since it found he owned, possessed, or had access to firearms, but there was no evidence

of “current possession while the protective order was in effect.” He specifically contends

the court misunderstood the law as prohibiting access to firearms, when it only prohibits

possession or ownership of firearms. Father emphasizes that the court found he had

“access to” firearms in the past, and “the evidence it used for its finding was an

assumption that he had continued access to firearms.” He also claims he did not need to

“prove the absence of possession,” when there was no evidence he currently possessed a

firearm. Father contends the testimony of a child that he was holding guns five months

prior to the issuance of the TRO was insufficient to prove possession while the protective

order was in effect. We conclude the court properly found that father violated the TRO.

A. Relevant Law

After a dependency petition has been filed, the juvenile court has exclusive

jurisdiction to issue restraining orders protecting the children who are the subject of the

petition. (§ 213.5, subd. (a); Cal. Rules of Court, rules 5.620(b), 5.630(a).) The court

may also issue a restraining order protecting the children’s parent. (§ 213.5, subd.

(a).) Restraining orders issued by the juvenile court prohibit the restrained party from

owning, possessing, purchasing, or receiving a firearm or ammunition during the term of

the order. (§ 213.5, subd. (g); Fam. Code, § 6389, subds. (a).) When the court issues the

9 restraining order, it must determine “whether the restrained person is in possession or

control of a firearm or ammunition, as provided in Section 6322.5 of the Family Code.”

(§ 213.5, subd. (g).) “Upon issuance of a protective order, as defined in Section 6218, the

court shall order the respondent to relinquish any firearm . . . in the respondent’s

immediate possession or control or subject to the respondent’s immediate possession or

control.” (§ 6389, subd. (c)(1).) The officer serving the protective order shall request

that the firearm be immediately surrendered. (§ 6389, subd. (c)(2).) If the officer does

not make such request, “the relinquishment shall occur within 24 hours of being served

with the order, by either surrendering the firearm or ammunition in a safe manner to the

control of local law enforcement officials, or by selling, transferring, or relinquishing for

storage pursuant to Section 29830 of the Penal Code, the firearm or ammunition to a

licensed gun dealer . . . .” (§ 6389, subd. (c)(2).)

A person ordered to relinquish a firearm “shall, within 48 hours after being served

with the order,” file with the court that issued the protective order the receipt showing the

firearm was surrendered to a local law enforcement agency or sold to a licensed gun

dealer. (§ 6389, subd. (c)(2)(A).) “Failure to timely file a receipt shall constitute a

violation of the protective order.” (Ibid.)

When relevant information is presented to the court at a noticed hearing that a

restrained person has a firearm, the court shall determine, by a preponderance of the

evidence, whether that person has a firearm “in, or subject to, their immediate possession

or control in violation of Section 6389.” (§ 6322.5, subd. (a).) In making such

determination, the court may consider whether the restrained person filed a firearm

10 relinquishment or sales receipt. (§ 6322.5, subd. (b)(1).) The court may make the

determination when the domestic violence protective order is issued, or at a subsequent

hearing while the order remains in effect. (§ 6322.5, subd. (b)(2).)

We review the juvenile court’s factual findings for substantial evidence. (In re

Carlos H. (2016) 5 Cal.App.5th 861, 866.) We view the evidence in the light most

favorable to the prevailing party “and indulge all legitimate and reasonable inferences to

uphold the juvenile court’s determination.” (In re Cassandra B. (2004) 125 Cal.App.4th

199, 210.) “We do not reweigh the evidence, evaluate the credibility of witnesses, or

resolve evidentiary conflicts.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

B. There Was Substantial Evidence of Current Possession and No Evidence That

Father Relinquished the Firearms

Father essentially claims there was no evidence he possessed a firearm during the

10 days the TRO prohibited him from doing so, since Z.L.P.’s testimony was that she

saw him with guns five months prior to the hearing. However, substantial evidence

supports the court’s determination that he had firearms in or subject to his possession or

control at the time of the hearing on the firearms issue. (§ 6322.5, subd. (a).)

On April 5, 2023, the court found father “own[ed], possess[ed], or ha[d] access to”

firearms and issued the TRO with the firearms restrictions. The terms of the TRO

required him to relinquish his firearms and, within 48 hours of the order, file with the

court the receipt showing the firearms were surrendered to the local law enforcement

agency or sold to a licensed gun dealer. (§ 6389, subd. (c)(2)(A).) At the subsequent

hearing on April 14, 2023, Z.L.P. testified that she saw a black pistol in the glove

11 compartment of father’s car and saw him put it in a lockbox. She said he took the

lockbox into their home, and it was in the closet. Z.L.P. also testified that she saw father

putting together a gold gun in the living room. When asked if she knew where the guns

currently were, she said, “I think they’re inside a lockbox still.” Z.L.P. further testified

that father took the lockbox with him when he left the house on the day mother called the

police (March 31, 2023)—approximately two weeks prior to the hearing.

At the firearms hearing, the court was required to determine, by only a

preponderance of the evidence, whether father had a firearm “in, or subject to, [his]

immediate possession or control . . . .” (§ 6322.5, subds. (a), (b)(2).) Z.L.P.’s testimony

provided substantial evidence for the court to determine that father was in current

possession of firearms, and the court found her to be very credible. Contrary to father’s

claim that there was no evidence he currently possessed a firearm, the evidence indicated,

at least by a preponderance of the evidence, that he took the lockbox with the firearms

inside with him when he left the house on March 31, 2023. Thus, the court reasonably

inferred that father still had the firearms in his possession or control at the time of the

hearing two weeks later. Although father had denied owning or possessing firearms at

the prior hearing, the court did not, and was not required to, believe him. (In re William

C. (1977) 70 Cal.App.3d 570, 579 [the court judges the credibility of witnesses, resolve

conflicts in the testimony, weighs the evidence, and draw factual inferences].) Therefore,

the evidence before the court indicated that father had current possession of the firearms,

and there was nothing presented to counter that evidence.

12 Further, the court properly considered whether father filed a firearm

relinquishment or sales receipt. (§ 6322.5, subd. (b)(1).) He did not file the required

receipt, and his failure to timely file proof that he relinquished the firearms constituted a

violation of the TRO. (§ 6389, subd. (c)(2)(A).) Accordingly, the court stressed that “the

compelling part” was that father had not complied with its order to divest himself of the

firearms and provide receipts within the time period specified in the TRO. In other

words, in the absence of any evidence that father had relinquished possession or control

of the firearms, the evidence was sufficient for the court to find that he still had firearms

in his possession or control.

Father focuses on the court’s finding that had access to firearms and argues that

the court misunderstood Family Code section 6322.5 as including “access to” firearms.

To the extent father is claiming the court’s order that he violated the TRO should be

reversed because the court only found that he had access to firearms, rather than current

possession, we disagree. The court stated: “I do find that he owns, possesses, or has

access to firearms or parts of firearms or ammunition.” (Emphasis added.) As explained

ante, it found father in violation because there was evidence of current possession, and

“he ha[d] not complied with the Court’s order to divest himself of the firearms and

provide receipts within the time period specified in the temporary restraining order.”

Father additionally asserts that “the court suggested [he] could have testified about

whether he currently possessed any firearms,” and that “the court could not force him to

testify against himself.” However, the record reflects the court simply did not find

father’s general denial of possession credible, and it noted he “could provide evidence if

13 he no longer has these firearms as to what he did with the firearms.” In contrast to

father’s assertions, the court appeared to be referring to his failure to file “the receipt

showing the firearm . . . was surrendered to a local law enforcement agency or sold to a

licensed gun dealer.” (§ 6389, subd. (c)(2)(A).) Again, “[f]ailure to timely file a receipt

shall constitute a violation of the protective order.” (Ibid.) Moreover, father waived any

privilege against self-incrimination he may have had once he chose to testify in the

proceedings. (See People v. Ing (1967) 65 Cal. 2d. 603, 610-611; see also People v.

Harris (1992) 8 Cal. App.4th 104, 108).

Viewing the evidence in the light most favorable to the court’s order, as we must,

we conclude there was substantial evidence to support the court’s finding that father was

in violation of the TRO.

DISPOSITION

The court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

MILLER Acting P.J.

CODRINGTON J.