Marriage of Gallegos CA4/1

• Court: California Court of Appeal
• Decided: July 24, 2015
• Docket: D065839
• Status: Unpublished

Opinion

Filed 7/24/15 Marriage of Gallegos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of BRITTANY AMBER and LAUDENTE GALLEGOS III. D065839 BRITTANY AMBER GALLEGOS,

Respondent, (Super. Ct. No. DN176309)

v.

LAUDENTE GALLEGOS III,

Appellant.

APPEAL from an order of the Superior Court of San Diego County,

Harry L. Powazek, Judge. Affirmed.

Law Offices of Tritt & Tritt and James F. Tritt for Appellant.

No appearance for Respondent.

Laudente Gallegos III appeals from a protective order under the Domestic

Violence Prevention Act (Fam. Code, § 6300 et seq.) (DVPA). (Undesignated

statutory references are to the Family Code.) He contends the trial court erred in: (1) utilizing an incorrect standard to issue the order, (2) issuing the order without a

finding of past abuse, (3) naming the parties' two daughters (the children) as protected

persons, and (4) failing to comply with the statement of decision process. We reject

Laudente's arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Laudente and Brittany Amber Gallegos were married for approximately three

years. They separated in August 2013. In October 2013, Brittany requested that the

trial court issue a domestic violence restraining order against Laudente, asking that the

order protect her and the children. Brittany claimed that a month earlier, Laudente had

grabbed her, threw her to the ground, and forced her to orally copulate him while he

videotaped the incident.

At the evidentiary hearing on Brittany's request for the restraining order,

Laudente testified that the video depicted him and Brittany "engaging in consensual

oral copulation." However, Brittany stated that the video did not depict the entire

incident because it did not start until after Laudente had physically assaulted her. She

testified that when she refused Laudente's request for oral sex, he restrained her by

grabbing her and pinning her to the ground with his knees. Brittany unsuccessfully

tried to get Laudente off of her but eventually performed oral sex on him feeling she

had no choice.

In a sworn declaration in support of her request for a restraining order, Brittany

stated that Laudente "repeatedly told [her] that if [she] got pregnant he would throw

2 [her] down the stairs to cause a miscarriage or [her] death." A Family Court Services

counselor reported that Brittany had stated Laudente had previously "pushed her down

the stairs, chocked [sic] her during intimate contacts and forced her to have sexual

relations." At the evidentiary hearing, Brittany denied having told the Family Court

Services counselor that Laudente had pushed her down the stairs when she was

pregnant.

Brittany also testified that Laudente had a drinking problem and often got

drunk. He neglected their children by failing to supervise them. Brittany also stated

that she was concerned for the physical safety of her children. On one occasion,

Laudente spanked their daughter so hard that it left a mark that stayed on her all day.

Further, Laudente was abusive to Brittany's dog on numerous occasions. Laudente

repeatedly punched the dog and threw it outside.

After considering the evidence, the trial court issued the restraining order for a

period of one year. In making its ruling, the court stated its decision "most likely

would have been different had [Brittany's] burden of proof been other than a

preponderance of the evidence." However, Brittany met her burden of proof showing

Laudente's "pattern of conduct including issues of substance and verbal abuse has

resulted in a reasonable fear for her personal safety." In regard to the oral copulation

video, the court noted that it was "problematic in that it began during the act and does

not reflect what occurred prior as [Brittany] ha[d] testified. The [video] does not

support [Brittany's] claim of a sexual assault."

3 DISCUSSION

I. Mootness

The protective order in this case expired on its own terms on February 3, 2015.

Thus, we requested letter briefs from the parties addressing whether the appeal should

be dismissed as moot. Laudente argues this Court should consider the merits of his

appeal because the restraining order continues to damage him as it prevents him from

obtaining employment with a law enforcement agency and will adversely impact him

in future court proceedings. Because the protective order may impact Laudente in the

future, we exercise our discretion to consider the merits of his appeal. Brittany did not

file a respondent's brief in this case and did not respond to our request for a letter brief

on the issue of whether the appeal is moot.

Laudente also requested that we take judicial notice of: (1) an Amended Order

of Termination and Charges from the San Diego County Sheriff's Department, which

terminated Laudente's employment as a deputy sheriff, and (2) the County of San

Diego Civil Service Commission's decision affirming his termination. Because

Brittany did not respond to Laudente's appeal or oppose the request for judicial notice,

Laudente's request for judicial notice is granted.

II. Standard for Protective Order

Laudente argues the trial court erred in basing the restraining order on Brittany's

apprehension of future abuse rather than on the proper objective standard of whether

her safety would be jeopardized absent the order. We reject this argument.

4 In determining whether to issue a permanent DVPA order, "the court shall

consider whether failure to make any of these orders may jeopardize the safety of the

petitioner and the children for whom the custody or visitation orders are sought."

(§ 6340, subd. (a).) While renewal of a DVPA protective order requires a showing

that the petitioner has a "[r]easonable [a]pprehension of [f]uture [a]buse" (Ritchie v.

Konrad (2004) 115 Cal.App.4th 1275, 1287-1290), section 6340 "permits the issuance

of a protective order . . . in the first instance, if 'failure to make [the order] may

jeopardize the safety of the petitioner.' " (In re B.S. (2009) 172 Cal.App.4th 183, 193-

194, italics added.)

The trial court has broad discretion in determining whether to grant a domestic

violence restraining order. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420;

Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505.) Accordingly, we review the

trial court's grant of a restraining order for abuse of that broad discretion, which occurs

only if the court's ruling exceeds the bounds of reason, fails to apply correct legal

standards, or is without substantial support in the evidence. (S.M. v. E.P. (2010) 184

Cal.App.4th 1249, 1265 (S.M.); Gonzalez v. Munoz, at p. 420.)

Here, to support his argument that the trial court employed an incorrect

standard to issue the restraining order, Laudente points to the trial court's statement

that Brittany met her burden of proof to show Laudente's "pattern of conduct including

issues of substance and verbal abuse has resulted in a reasonable fear for her personal

safety." Laudente contends the trial court's statement establishes that it used an

5 improper standard of whether Brittany had a reasonable apprehension of future abuse

rather than the proper standard of whether failure to issue the restraining order would

jeopardize her safety. Laudente raised his concern with the trial court in a new trial

motion. The trial court explained that the purpose of its statement regarding Brittany's

"reasonable fear" for her personal safety was to express that although her sexual

assault allegations were insufficient, her concerns about "substance abuse and so forth

w[ere] credible" and Brittany had a reasonable fear based on those findings.

We are not convinced that the court's statement that Brittany met her burden to

show she had "reasonable fear for her personal safety" established that the trial court

utilized an improper standard to grant the restraining order. Even assuming error,

however, it was harmless. (See Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1292

[appellate court may conclude trial court's failure to apply proper standard for renewal

of a DVPA restraining order constitutes harmless error].) The evidence established by

a preponderance of the evidence that Brittany's safety would be jeopardized absent the

order. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137 [In determining

whether to grant a request for a restraining order under the DVPA, the trial court

applies the preponderance of the evidence standard of proof.].)

The evidence showed that Laudente repeatedly threatened to throw Brittany

down the stairs to cause a miscarriage or her death. While Brittany recanted her

statement to a Family Court Services counselor that Laudente had actually pushed her

down stairs, there was some evidence in the record that Laudente perpetrated physical

6 violence against Brittany. Specifically, in addition to the incident regarding being

pushed down the stairs, Brittany reported to the Family Court Services counselor that

Laudente had previously choked her during intimate contacts. Brittany also stated in

her sworn declaration that Laudente had been violent with her. Further, Laudente

committed physical acts of aggression against Brittany's dog, one of the parties'

daughters, and Brittany's mother.

While not overwhelming, in light of this evidence, the trial court could have

reasonably concluded that Brittany's and her children's safety would be jeopardized

absent the order.

III. Finding of Past Abuse

Laudente argues the trial court erred in issuing the restraining order without a

finding of past abuse. Specifically, he contends the trial court based its order on

"verbal abuse" which did not rise to the level of abuse required for a restraining order

as it was tantamount to "badgering" or "name calling." We disagree.

Under the DVPA, a court may issue a protective order to enjoin specific acts of

abuse. (§ 6218.) Section 6300 provides: a restraining order may be issued if an

affidavit or, if necessary, an affidavit and any additional information shows, to the

satisfaction of the court, "reasonable proof of a past act or acts of abuse." (See S.M.,

supra, 184 Cal.App.4th at p. 1264.) " '[A]buse' " means "(1) Intentionally or recklessly

to cause or attempt to cause bodily injury[;] [¶] (2) Sexual assault[;] [¶] (3) To place a

person in reasonable apprehension of imminent serious bodily injury to that person or

7 to another[; or] [¶] (d) To engage in any behavior that has been or could be enjoined

pursuant to Section 6320." (§ 6203.) The behavior outlined in section 6320 includes

threats and harassment. (§ 6320.)

Here, Laudente relies on S.M. to support his argument. That case involved

parents fighting over custody of their minor child. (S.M., supra, 184 Cal.App.4th at p.

1254.) The mother and father engaged in an argument regarding the mother's intention

to take the child out of state. (Ibid.) The mother alleged that while she was in bed, the

father tore the bed covers off of her, called her names, and threatened to kill her. (Id.

at pp. 1254, 1258.) The trial court specifically refused to find the father made a death

threat and thus, based the restraining order on what it referred to as "badgering." (Id.

at p. 1265.) On appeal, this Court held that the father's "badgering" did not constitute

"conduct that placed [the mother] in reasonable fear of serious bodily injury or that he

engaged in a type of behavior identified in section 6320." (Ibid.)

Laudente claims that like S.M., the trial court in this case erred in issuing the

restraining order because it specifically found the video evidence did not support

Brittany's claim of sexual assault and the trial court's finding of "verbal abuse" was

nothing more than "badgering" and "name calling." We do not agree with Laudente

that his case is similar to S.M. Although the trial court found the video evidence was

insufficient to support Brittany's sexual assault claim, the evidence of "verbal abuse"

in this case went beyond "badgering." Instead, the evidence supports issuance of a

restraining order based on behavior identified in section 6320.

8 The DVPA's definition of abuse includes more than physical or sexual assault.

(§§ 6203, 6320.) Under section 6320, "abuse" includes threats and harassment. In this

case, the record contained evidence that Laudente repeatedly threatened Brittany that if

she got pregnant, he would throw her down the stairs to cause a miscarriage or her

death. Moreover, Brittany stated that in addition to threatening violence, Laudente had

substance abuse problems, called her names and "ha[d] been violent with [her] and

[her] dog and [her] mother." Based on the foregoing, we conclude the trial court did

not abuse its discretion in issuing the restraining order as the evidence, although

minimal, established "abuse" justifying the order. (§§ 6203, 6320.)

IV. Protected Persons

Laudente argues the trial court erred in naming the parties' children as protected

persons under the restraining order. We disagree.

In determining whether to issue a permanent DVPA order, "the court shall

consider whether failure to make any of these orders may jeopardize the safety of the

petitioner and the children for whom the custody or visitation orders are sought."

(§ 6340, subd. (a).) " ' "[D]omestic violence in the same household where children are

living . . . is a failure to protect [the children] from the substantial risk of encountering

the violence and suffering serious physical harm or illness from it." [Citations.] . . .

Further, . . . ' "[b]oth common sense and expert opinion indicate spousal abuse is

detrimental to children." ' " (In re R.C. (2012) 210 Cal.App.4th 930, 941.)

9 Here, Laudente argues the trial court erred in naming the children as protected

persons under the restraining order because Brittany did not allege child abuse and the

court did not make any express findings or give an explanation as to why the children

were protected under the order. Laudente cited no authority requiring a trial court to

provide an explanation for including children in a protective order. Further, contrary

to Laudente's contention, Brittany expressed concern for the physical safety of the

children and, on one occasion, Laudente spanked their daughter so hard that it left a

mark that stayed on her all day. Based on this evidence, the trial court did not abuse

its discretion in including the parties' children as protected persons under the

restraining order.

V. Statement of Decision

A. Additional Background

After the trial court issued its Findings of Fact and Conclusions of Law,

Laudente "Requested Corrections, Changes and Objections to Court's Findings of Fact

and Conclusions of Law." He contended: (1) the court's finding that Brittany met her

burden of proof for the restraining order was inconsistent with its finding that she did

not meet her burden of proof on her sexual assault allegation, (2) the court's finding

that he engaged in a pattern of abuse was inconsistent with Brittany's assertions and

the evidence, (3) there was no basis to include the parties' children as protected

persons under the order, and (4) the court should grant him an exemption to the

firearm restriction in the restraining order because he was required to carry a firearm

10 while on duty as a deputy sheriff. In response to Laudente's request, the trial court

directed Laudente to prepare a statement of decision pursuant to the court's findings of

fact and conclusions of law. One day later, the court issued the restraining order.

B. Analysis

Laudente argues the trial court erred in failing to comply with the statement of

decision process. This contention fails.

"The request for a statement of decision shall specify those controverted issues

as to which the party is requesting a statement of decision." (Code Civ. Proc., § 632.)

Thus, a trial court may make findings on only those issues specified (Harvard

Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 709-710, fn. 3); absent

such a specification, a party is deemed to have waived the right to object to the trial

court's failure to do so (City of Coachella v. Riverside County Airport Land Use Com.

(1989) 210 Cal.App.3d 1277, 1292-1293). Where, as here, a trial lasts for more than

one day, a party has ten days after the court announces its tentative decision to request

a statement of decision. (Code Civ. Proc., § 632.)

Laudente has not shown the trial court's failure to issue a written statement of

decision prejudiced him. He claims that the trial court's order was inconsistent with

the evidence and had it "[f]ollow[ed] the statement of decision process to its

conclusion [the trial court] could perhaps have corrected [its] errors and prevented the

permanent restraining order . . . issued against [him]." This argument misconstrues

the purpose of a statement of decision.

11 A statement of decision must explain the factual and legal basis for the court's

decision regarding the principal controverted issues at trial (In re Cheryl E. (1984) 161

Cal.App.3d 587, 599); it does not need to specify the particular evidence considered by

the trial court in reaching its decision (Muzquiz v. City of Emeryville (2000) 79

Cal.App.4th 1106, 1125). Additionally, a statement of decision need only state

ultimate rather than evidentiary facts "because findings of ultimate facts necessarily

include findings on all intermediate evidentiary facts necessary to sustain them." (In

re Cheryl E., at p. 599.)

Here, other than in regard to the firearm restriction, Laudente is not

complaining about omitted findings on principal controverted issues at trial; rather, he

is complaining that the trial court erred in its findings. The trial court concluded that

Laudente engaged in a pattern of abuse sufficient to justify a restraining order

protecting Brittany and the parties' children. The court's findings of fact and

conclusions of law adequately disposed of all the basic issues in the case except the

firearm restriction.

In regard to the firearm restriction, the parties subsequently stipulated and the

court ordered that the restraining order be modified to permit Laudente to possess a

firearm during his work hours. The stipulation and order were consistent with section

6389, subdivision (h), which permits a court to grant an exemption of the firearm

restriction in a protective order to allow a peace officer to possess a firearm while on

duty.

12 Despite the stipulation and order amending the restraining order, the San Diego

County Sheriff's Department terminated Laudente's employment in part because the

order prohibited him from carrying a firearm while off duty. "In any case involving a

peace officer who as a condition of employment and whose personal safety depends on

the ability to carry a firearm, a court may allow the peace officer to continue to carry a

firearm, either on duty or off duty, if the court finds by a preponderance of the

evidence that the officer does not pose a threat of harm. Prior to making this finding,

the court shall require a mandatory psychological evaluation of the peace officer and

may require the peace officer to enter into counseling or other remedial treatment

program to deal with any propensity for domestic violence." (§ 6389, subd. (h).)

We need not consider whether the trial court should have made a finding in a

statement of decision regarding Laudente's ability to carry a firearm while on duty as

the parties stipulated and the court subsequently ordered that exemption. To the extent

that Laudente is claiming the trial court should have made a finding regarding his

ability to possess a firearm while off duty, he did not make that request in the trial

court. Specifically, in his request for a statement of decision, Laudente did not request

that the trial court make a finding by a preponderance of the evidence that he does not

pose a threat of harm such that he could carry a firearm off duty. (§ 6389, subd. (h).)

Instead, he only requested that the court grant the firearm exemption allowing him to

carry his firearm while on duty. By failing to request specific findings allowing him to

carry a firearm off duty, Laudente waived the right to object to the trial court's failure

13 to make such a finding (City of Coachella v. Riverside County Airport Land Use Com.,

supra, 210 Cal.App.3d at pp. 1292-1293).

Based on the foregoing, we reject Laudente's claim of error in regard to the trial

court's alleged failure to comply with the statement of decision process.

DISPOSITION

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

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.