Fanile v.
Manley
Filed
2/24/12 Fanile v. Manley CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
TURESI HITHE FANIEL,
Plaintiff
and Respondent,
v.
ANDREW MANLEY,
Defendant
and Appellant.
B232160
(Los
Angeles County
Super. Ct. No. BQ030118)
APPEAL from an order of the Superior
Court of Los
Angeles County, Mark A. Juhas, Judge. Affirmed.
Willoughby & Associates, W.
Anthony Willoughby, Jason J. Buccat and Danielle R. Claxton for Defendant and
Appellant.
Law Office of Herb Fox and Herb Fox
for Plaintiff and Respondent.
_______________________________________
Appellant Andrew Manley (Manley)
seeks to reverse the trial court’s issuance of a restraining order against him
in favor of Respondent Turesi H. Faniel (Faniel). Manley contends that the trial court abused
its discretion (1) in issuing a restraining order on the basis of its finding
that Manley threatened Faniel with a firearm because there is no competent,
relevant evidence supporting such a finding; (2) in issuing a restraining
order on the basis that Manley controlled Faniel because control is not
a legal basis for finding abuse under Family Code section 6203
and, further, the evidence does not support a finding of such control; and (3)
when it found that Manley was not credible and that Faniel was credible.
As
we conclude that the trial court’s restraining order is supported by
substantial evidence and that it did not abuse its discretion in issuing that
order, we will affirm.
Manley, a married man, first met Faniel
approximately ten to 15 years ago when he provided an education service to the
special needs children in Faniel’s group home.
Beginning in 2006, while Manley remained married, the two began dating. Although the parties dispute when they split
and who broke up with whom, they both agree that they were in a “dating
relationship” as defined in Family Code section 6210
continued through September of 2009, while Manley testified that he ended the
relationship in April of 2008. Over the
course of their relationship, Manley gave Faniel cash on a monthly basis and
provided her with a Jaguar vehicle to drive.
On
May 21, 2010, Faniel filed an application for a temporary restraining order
(TRO) against Manley. A TRO was issued
and served on Manley on May 26, 2010.
The TRO required that Manley surrender all of his firearms to a law
enforcement agency within 24 hours of being served. However, Manley did not comply with the TRO’s
firearm surrender requirement until August of 2010. The weapons he surrendered include
a 9 mm semi-automatic Uzi, a 12-guage shotgun, a .45 caliber
semi-automatic Colt with a magazine, a .44 magnum Super Comanche revolver
with wooden grips, a .357 magnum revolver and an undercover .38
special revolver. A trial on the
permanent restraining order was held over five days: August 25, 2010, September 16, 2010,
September 22, 2010, September 27, 2010 and September 29, 2010.
During
the trial, Faniel testified that Manley was violent and threatened her with
violence on a regular basis. In her live
testimony, Faniel stated that Manley “has shaken, choked, attacked, pushed and
shoved” her on several different occasions.
More specifically, she testified that Manley choked her twice in 2007,
four times in 2008 and once in 2009.
Faniel also testified that in August or September of 2008, while
drinking and during the course of an argument, Manley pushed her down on the
couch, grabbed her by the neck and pointed a handgun to her head telling
her, “bitch, I will kill you.
I will kill you. I will make
it where no one will find you.” This
more serious incident was corroborated by Faniel’s mother, Bettye Decquir
(Decquir), who testified that Manley admitted to having done this to Faniel
during a telephone call with her mother in 2010.
through a friend stating that “he was going to see her in the gutter,” “he was
going to see her fall on her face” and she would “lose everything that she
had.” Faniel’s mother also testified
that Manley told her sometime in 2009 that “he would see my daughter lying in
the gutter.”
Manley
was also very controlling and jealous.
Faniel testified that in 2006, Manley used scissors to forcibly cut off
Faniel’s sweat pants while she was wearing them, despite her pleas for him to
stop. Her testimony was corroborated by
her friend, an eye-witness to the event, Vivian Goodman (Goodman). Throughout their relationship Manley engaged
in other controlling behaviors such as instructing Faniel in what she should
wear, covering her immediately upon exiting a pool and not allowing her to
lounge while only wearing a swimsuit, accusing Faniel of having a sexual
relationship with her son, and isolating her from her family and friends.
Additionally,
Faniel testified that Manley told her lies with the intent to manipulate and
control her. For example, he told her
that he was a special operations member of the FBI and CIA. Manley previously was in the U.S. Navy and
now was a reserve Probation Officer for Los Angeles County. He carried a concealed weapon. He told Faniel that, as part of his duties in
special operations, he once was assigned to “get rid of” the wife of another
team member because she had cheated on the team member. Faniel testified that these statements
instilled fear in her.
In
September of 2009, he took the Jaguar back by taking possession of it without
Faniel’s knowledge from her mother’s backyard where the car was parked during
her visit there. In early 2010, soon
after Faniel purchased a replacement vehicle, her car window was broken and one
of her tires was slashed. Later, her car
was tagged with “304” and someone spray-painted “304” and “PUNK FAGGOT” on her
house door. Shortly thereafter, her car
was set on fire. The vandalism was
corroborated by photographs of Faniel’s car and home. Although Faniel believed Manley was behind
the destruction and she feared for her safety as a result, she failed to
produce any evidence that linked the vandalism directly to Manley.
Manley,
during his live testimony, accused Faniel of extorting $35,000 from him by
threatening to call his wife and inform her of the affair. He testified that he gave Faniel $7,000 a
month from July through November of 2008 (totaling $35,000). Faniel denies ever calling Manley’s wife or threatening to do
so and stated that Manley provided for her on a monthly basis while they were a
couple and the $7,000 a month was part of that.
Faniel
testified that after the TRO was issued, she saw Manley on two separate
occasions in June and July of 2010, drive by her house. She also testified that seeing him frightened
her.
On
October 1, 2010, the trial court granted Faniel’s request for a restraining
order covering a period of two years. It
issued its Statement of Decision regarding the order on January 6, 2011. The trial court found that Manley committed
domestic violence against Faniel in violation of Family Code section 6300,
that Manley and Faniel were in a “dating relationship,” that Manley violated
the terms of the TRO issued in May of 2010, and that Faniel was generally more
credible than Manley. The trial court
also found that Faniel’s accusation that Manley cut off her sweat pants with
scissors was credible and that, along with other evidence “including the
financial payments, provides sufficient evidence of control over [Faniel] to
allow for a restraining order.” The
trial court also found that Manley “carried a
gun . . . [and] that he threatened [Faniel] with a
gun.” It stated that “[t]he threat with
the gun is use of a firearm that supports the granting of
a restraining order.” The trial
court noted “that all of the complained about acts in this matter ceased upon
[Faniel’s] filing of the restraining order.”
Manley
filed a notice of appeal on February
23, 2011.
Manley
contends that the trial court abused its discretion (1) in issuing
a restraining order on the basis of its finding that Manley threatened
Faniel with a firearm because there is no competent, relevant evidence
supporting such a finding; (2) in issuing a restraining order on the basis
that Manley controlled Faniel because control is not a legal basis for finding
abuse under Family Code section 6203 and, further, the evidence does not support
a finding of such control; and (3) when it found that Manley was not credible
and that Faniel was credible.
1. Standard
of Review
This
case involves the Domestic Violence Prevention Act (DVPA). (Family Code §§ 6200 et seq.) “The DVPA authorizes issuance of an order
restraining a person ‘for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons involved, if an
affidavit . . . shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.’ ([Family Code] § 6300.) For purposes of the DVPA, ‘abuse’ is defined
as intentionally or recklessly causing or attempting to cause bodily injury, sexual
assault or placing a person in ‘reasonable apprehension of imminent serious
bodily injury.’ [Citations.] [Family Code s]ection 6320 authorizes
the court to ‘issue an ex parte order enjoining a party from molesting,
attacking, striking, stalking, threatening, sexually assaulting, battering,
harassing, [and making] annoying telephone calls . . . ,
destroying personal property, contacting, either directly or
indirectly, . . . coming within a specified distance of, or
disturbing the peace of the other party, and, . . . other
named family or household members.’ ”
(Gonzalez v. Munoz (2007) 156
Cal.App.4th 413, 421.)
We
review the granting of a protective order under the DVPA for abuse of
discretion. (Gonzalez v. Munoz, supra,
156 Cal.App.4th at p. 420.)
“ ‘The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.’ [Citation.]” (Id.,
at pp. 420-421.)
Having
reviewed the statutory framework governing restraining orders under the DVPA
and the applicable standard of review, we now turn to our analysis of the
issues on appeal.
2.
in Issuing the
Restraining Order
Manley contends that the trial court
abused its discretion in issuing a restraining order on the basis of its
finding that Manley threatened Faniel with a firearm because there is no
competent, relevant evidence supporting such a finding. We disagree.
The record contains Faniel’s live testimony that, in the course of an
argument, Manley pushed Faniel down, held her by the neck and pointed a gun to
her head. The testimony further shows
that Manley threatened to kill Faniel at that point. This very serious incident is corroborated by
the testimony of Faniel’s mother. The
record also contains Faniel’s testimony that Manley “has shaken, choked,
attacked, pushed and shoved” Faniel on different occasions. Faniel testified that she feared for her life
as a result of Manley’s behavior.
Although these events occurred over 2007 to 2009, and Faniel did not
state that Manley engaged in such contact as recently as 2010, Family Code
section 6300 only requires “a showing of past abuse, not a threat of future
harm” . . . and “a protective order under the DVPA
[can be issued] on the basis of an affidavit showing past abuse. [Citation.]”
(Gdowski v. Gdowski (2009)
175 Cal.App.4th 128, 137.)
Such
evidence supports the trial court’s finding that Manley threatened Faniel with
a firearm and in a number of other ways placed her in reasonable apprehension
of imminent serious bodily injury. We
easily conclude that the trial court’s order, based on its findings, does not
exceed the bounds of reason and is, thus, not an abuse of discretion.
Under
Family Code section 6203, placing a person in reasonable apprehension of
imminent serious bodily injury is considered “abuse” such that a trial court
may issue a restraining order. As
the evidence demonstrates that Manley engaged in such abuse when he held a gun
to Faniel’s head and threatened to kill her in combination with additional
threatening statements and actions, we need not address Manley’s second
contention that the trial court abused its discretion in issuing the
restraining order on the basis that Manley “controlled” Faniel because control
is not a legal basis for finding abuse under Family Code section 6203.
3. The
Trial Court’s Credibility Determination Is Not an Abuse of Discretion
Manley
last contends that the trial court abused its discretion when it found that
Manley was not credible and that Faniel was credible. We disagree.
Conflicting
evidence is not enough to show that the trial court abused its discretion. “The trial
court . . . was able to assess credibility and resolve any
conflicts in the evidence. Its
findings . . . are entitled to great weight. Even though contrary findings could
have been made, an appellate court should defer to the
factual determinations made by the trial court when the evidence is in
conflict. This is true whether the trial
court’s ruling is based on oral testimony or declarations. [Citation.]”
(Shamblin v. Brattain (1988)
44 Cal.3d 474, 479.)
Here
the trial court expressly stated that it found Faniel’s testimony “throughout
the trial, . . . to be more credible in her recitation of
the facts than the court found [Manley].”
The trial court also found Faniel “to be credible in her testimony as to
the actions of [Manley].” “ ‘[I]t is the exclusive province of the [trier of
fact] to determine the credibility of a
witness. . . . ’
[Citation.] . . . The testimony of a single witness
may provide sufficient evidence.
[Citation.]” (
818, 823.) We will not disturb
the trial court’s credibility determination on appeal.
The trial court’s restraining order
is affirmed. Turesi Hithe Faniel shall
recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P. J.
KITCHING, J.
name="_ftn1" title="">[1] Family
Code section 6203 defines “abuse” to include any of the following: “(a) Intentionally or recklessly
to cause or attempt to cause bodily injury.
[¶] (b) Sexual assault.
[¶] (c) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another. [¶] (d) To engage in any behavior
that has been or could be enjoined pursuant to Section 6320.”
Family Code section 6320 states, in relevant part,
“(a) The court may issue an ex parte order enjoining a party from
molesting, attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, including, but not limited to, making
annoying telephone calls as described in Section 653m of the Penal Code,
destroying personal property, contacting, either directly or indirectly, by
mail or otherwise, coming within a specified distance of, or disturbing the
peace of the other party, and, in the discretion of the court, on a showing of
good cause, of other named family or household members.”
name="_ftn2" title="">[2]
and procedural background is drawn from the record, which includes
a one-volume Clerk’s Transcript and a two-volume Reporter’s Transcript.
