Escovedo v. Robitschek
Filed
12/3/13 Escovedo v. Robitschek CA5
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opinion has not been certified for publication or ordered published for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.
CODY ESCOVEDO,
Respondent,
v.
LAURA ROBITSCHEK,
Appellant.
F066271
(Fresno Super. Ct. No. 12CEFL06070)
APPEAL from a judgment of the
Superior Court of
County. Adolfo M. Corona, Judge.
Laura Robitschek, in pro. per., for Appellant.
Cody Escovedo, in pro. per, for
Respondent.
-ooOoo-
FACTS
On April 7,
2011, respondent Cody Escovedo obtained a restraining
order against appellant Laura Robitschek.
By its terms, the order was to remain in effect until midnight on
October 7, 2011. On October 17, 2012, respondent
filed another request for a restraining order.
In the request, respondent averred under oath that Appellant “has use[d]
weapon and gun threats in the past.†Respondent attached letters dated October 21,
2011, and May 23, 2012, to his request for a restraining order. The letters contain appellant’s typewritten
name at the bottom, but no signature.
appellant. In the letter, respondent
alleges that appellant made charges to credit cards in respondent’s name
without permission.
Appellant filed a response,
contending that respondent’s claims lacked specificity. Appellant also claimed that respondent’s
allegations of prior abuse “do not meet the requirements of assault.â€
The court
held a hearing on the restraining order request. Both appellant and respondent were sworn and
type of mail he received from appellant.
One of the pieces of mail respondent identified were holiday cards
addressed to respondent’s son.
The reporter’s transcript of the
testimony contains 12 pages. The
following notation appears on the final page: “(WHEREUPON, WHEN COURT TAKES BRIEF RECESS,
THIS COURT REPORTER IS SENT TO A DIFFERENT DEPARTMENT WAS NOT PRESENT TO REPORT
THE REMAINDER OF THE HEARING.)â€
name="_ftnref3" title="">[2]
The court
granted the restraining order. The
minute order states: “The Court finds
good cause to grant a 1 year restraining order[.] [T]he writing only gives the Court good
reason to grant the restraining order. The
Court notes the respondent [Appellant Laura Robitschek] left the Courtroom
while the Court was giving its ruling.â€
Among other
requirements, the restraining order commands appellant to stay at least 100
yards away from respondent and his immediate family members. The order also prohibits appellant from owning,
possessing, having, buying, trying to buy, receiving, or trying to receive
firearms. It requires that appellant
sell or turn in any firearms she possesses within 24 hours of being served with
the order.
Appellant
appeals from the restraining order.
ARGUMENT
I.
APPELLANT HAS FAILED TO PROVIDE AN ADEQUATE RECORD TO
REVIEW HER CLAIMS OF ERROR
We are
unable to review appellant’s contentions on the record before us. As noted, the trial court took testimony from
both parties at the restraining order hearing.
Yet, only a portion of that testimony is in the appellate record.
“Appellant[’]s[]
proper remedy, upon learning of the unavailability of portions of the
transcript, was to obtain a settled statement of the oral proceedings prepared
by the parties and settled by the judge who heard the matter, or an agreed
statement prepared by the parties and consisting of a condensed statement of
the relevant proceedings. [Citations.] Appellant[] failed to utilize either procedure
and [has] provided this court with a record which is wholly inadequate to
enable it to review the error[s] complained of.†(Ehman
v. Moore (1963) 221 Cal.App.2d 460, 462-463; see also, Cal. Rules of Court,
rules 8.130(g), 8.134, 8.137.)
A.
WE CANNOT EVALUATE APPELLANT’S CLAIM THE DVPA IS “VOID
FOR VAGUENESSâ€
This defect
in the record precludes our review of appellant’s argument that the Domestic
Violence Protection Act (DVPA) is “void for vagueness.†When a party contends a law in
unconstitutionally vague, the court examines the party’s actual conduct before
analyzing other hypothetical applications of the law. (See Hoffman
Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 494-495.) This is true even when the court analyzes a
facial challenge to the law on vagueness grounds. (See ibid.) We do not have a complete record of
appellant’s conduct forming the basis for the restraining order. Therefore, due to the inadequacy of the
record, we cannot “examine the complainant’s conduct before analyzing other
hypothetical applications of the law.†(
B.
WE CANNOT EVALUATE APPELLANT’S FIRST AMENDMENT CLAIM
Appellant
also contends the court violated her First Amendment rights.
restraining order on the inter[-]family sending of holiday cards is too broad
of discretion and not in line with the spirit of the ‘Act’.â€
This
contention assumes the restraining order was based merely on the holiday cards
appellant sent to her family. Respondent
challenges this assertion, claiming “[t]he court[’]s findings were not based on
‘holiday and birthday cards .…’ â€
He submits “[t]he lack of transcripts [sic] makes it impossible to refer back to what took place in the
courtroom, which contains all of the
details of harassment and admissions from Appellant.†(Italics added.) Again, we cannot resolve this particular
dispute, or determine the veracity of the parties’ competing claims on the
incomplete record before us.
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C.
WE CANNOT EVALUATE APPELLANT’S SECOND AMENDMENT CLAIM
Appellant
next submits that the restraining order and its resultant effect on her ability
to possess firearms (see Fam. Code,
name="_ftnref6" title="">[5]
§ 6389, subd. (a)) violates the Second Amendment. We understand appellant’s contention to be an
“as-applied†challenge.
name="_ftnref7" title="">[6] Again, the inadequate appellate record
precludes review of this contention.
An “as
applied†challenge “contemplates analysis
of the facts of a particular case … to determine the circumstances in which
the statute or ordinance has been applied and to consider whether
application deprived the individual to whom it was applied of a protected
right. [Citations.]†(Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069, 1084, italics added.) Thus, when the record provides insufficient
facts, we cannot evaluate an as-applied challenge. (See Strand
Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 888,
disapproved on other grounds by People v.
Superior Court (Lucero) (1989) 49 Cal.3d 14, 28, fn. 10 [record contained
no evidence to consider appellant’s factual assertions, therefore review of as-applied
challenge was foreclosed].) Therefore, we
decline to consider appellant’s as-applied challenge “upon a record which
affords inadequate factual basis for determining whether … as applied … the
statute would violate [appellant’s constitutional rights].†(Alabama
State Federation of Labor v. McAdory (1945) 325 U.S. 450, 463.)
CONCLUSION
“ ‘[I]f
the record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.’ [Citations.]†(Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
DISPOSITION
The
restraining order is affirmed. Costs are
awarded to Respondent.
Poochigian, J. and Detjen, J.
At the hearing, appellant admitted to writing the October 11, 2011,
letter. The record does not show whether
appellant admitted or was asked about authorship of the May 23, 2012, letter.
