In re Marriage of Liem

Filed 2/28/08 In re Marriage of Liem CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge. Affirmed.

William M. Hulsy; John L. Dodd, for Appellant.

William G. Cort for Respondent.

Steven Liem appeals from the imposition of a restraining order against him pursuant to Family Code section 6203.^[1] He contends the court erred in concluding that his act of grabbing [his] spouses buttocks, over her clothing, in an unwanted manner constituted a sexual assault within the meaning of subdivision (b) of the statute. According to Steven,^[2] the term sexual assault must be interpreted in a manner consistent with criminal assaults, and Penal Code section 240 requires a greater degree of violence than occurred in this case. We disagree, and find no error in the courts interpretation of the statute.

Way back in 1907, our Supreme Court expressly rejected the notion the phrase violent injury as used in Penal Code section 240 was limited to bodily harm. Instead, it concluded the phrase included any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. (People v. Bradbury (1907) 151 Cal. 675, 676, italics added.) We are not only bound by that precedent, but agree with it.

In any event, as respondent Michele Liem points out, the court did not base its conclusion that Steven was guilty of abuse solely on the determination he had committed a sexual assault. The court also expressly found he had committed other violent acts, including the destruction of household furniture, and cited a distinct provision of section 6203 in support of its conclusion. Because Steven failed to challenge the courts alternative justification, we must affirm the order on that basis in any case. And we do.

FACTS

Steven filed a petition for dissolution of the parties marriage, along with an order to show cause regarding child custody, in January of 2007. On March 8, 2007, Michele filed an ex parte application for a temporary restraining order to prohibit Steven from contacting either her or the couples children. In support of her application, Michele alleged that Steven had been addicted to crystal methamphetamine for the last four years, that his addiction caused him to behave aggressively and erratically, and that it was having an increasingly deleterious effect on their family. She described specific instances of misconduct, including one in which Steven was trying to kiss me and grab my butt against my wishes . . . . In spite of my objections to leave me alone he did not let me go. And this time, I slapped him on the face.^[3] Michele also related an instance in which Stevens aggressive behavior had so frightened their 10-year-old son that the son hid himself in the bathroom in fear and called [Michele] at work. Michele advised the son to run to the neighbors house. Steven followed and was banging on the neighbors door with such aggression that the neighbor hid the son in her car and drove away. Steven pursued them until flagged . . . down by the police. According to Michele, the police advised her to leave the house with [the] children until the court date.

Michele also asserted that when she and the children returned to the home the next day to retrieve the family dog, Steven pursued us and kept steering us off the road. She stopped in the parking lot of a retail establishment, and Steven banged on the car window and tried to open the car. Steven left only when Michele began to yell for help.

Finally, Michele contended Steven had harassed her at work; locked her out of the house; ransacked and damaged the house; and destroyed furniture including heirloom dining room furniture which was smashed and left in the driveway.

Micheles application was granted, and the court set a hearing on March 12, 2007, to consider issuance of a permanent restraining order. Steven filed a declaration opposing the restraining order. In that declaration, Steven denied taking street drugs. He explained he had taken a Hair test for drugs which demonstrated he was free of any drug use during the past 90 days. He claimed it was Micheles behavior, rather than his, which had become volatile, and that her allegations against him were merely a ploy she had devised in the wake of his petition for dissolution of the marriage. He disputed her characterization of the incidents supporting her application for the temporary restraining order, and asked the court to award him equal time with the couples children.

At the hearing on March 12, both Michele and Steven testified. The court also heard testimony from a marriage and family therapist, who also acts as an investigator for Family Court Services and conducted a court-ordered emergency investigation in the wake of the courts issuance of the temporary restraining order. The therapist expressed her opinion that a restraining order should issue in this case.

The court also heard testimony from a neighbor of the Liems, as well as from one of the couples three children. Additionally, the court received into evidence several photographs depicting the exterior and various interior spaces in the family home, as well as the condition of certain furniture and personal property. In her testimony, Michele explained that one of the photographs depicted an antique buffet, part of a dining set which had belonged to Micheles grandmothers great aunt, sitting on the driveway after Steven had locked her out of the house. Other photographs, taken about a week after Michele had left the family home with the children, depicted certain rooms in the house in a trashed or ransacked condition. Michele testified those rooms had not been in that condition when she and the children left them. Yet another photograph depicted a planter in front of the home, denuded of plants which had been there when Michele left. Michele explained she found potted plants thrown in the trash.^[4]

After the close of evidence, the court heard argument from the parties. Steven argued Michele was pursuing a restraining order merely as a way to get an upper hand in custody, and contended there was not sufficient evidence of actual violence to justify issuance of a restraining order. The court disagreed with his narrow interpretation of the statutory basis for an order: You and I have a different idea of what constitutes domestic violence. . . . You said domestic violence talks about intentionally reckless attempts to cause bodily injury. I agree with that, to place a person in reasonable apprehension of imminent serious bodily harm. I agree with that. [] However, you didnt mention [section] 6203 (b). Which talks about assault, which talks about sexual assault.

The court continued: Nor, did you talk about [section] 6203(d), which says that I can give an order based on abuse which is, has been or could be enjoined pursuant to section 6320 . . . . [] So lets take a look at [section] 6320. [Section] 6320 is, The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, including but not limited to, annoying telephone calls described in [section] 653(n) of the Penal Code, destroying personal property, contacting directly or indirectly my mail or otherwise, coming within a specified distance or disturbing the peace of the other and the discretion of the court on a showing of good cause, other named members of the family or household members. [] There wasnt any rebuttal to what [Michele] had to say, other than, It was all a lie. Shes not telling the truth and I got a reason for everything. . . .

The court explained: The problem is [Micheles] declaration was really quite specific. One of the things she mentioned . . . was unwanted sexual assault. So I find that thats the case because I believe what [Michele] had to say, since there wasnt any evidence to rebut it. [] Secondly, the conduct which has been described, including throwing the buffet out on the driveway upside down because he gets a call from the real estate office, as far as Im concerned, I dont believe it. The house looks like its been trashed in a fit of anger, which is consistent with the kind of rage you tend to see with drug addicts who arent recovered, but are merely dry. . . .

The court also stated it believed Micheles version of the incident which occurred when she picked up the family dog. What she . . . described was not a meeting, friendly meeting . . . but rather he followed her down the road and nearly ran her off the road . . . .

Based upon that assessment of the evidence, the court determined that a restraining order should issue. I find there was domestic violence within the meaning of the Domestic Violence Prevention Act. I find that the petitioner Steven Liem was the perpetrator of that violence. None of this was in self defense. Michele Liem is entitled to a domestic violence prevention order. The restraining order will last for five years.

I

Section 6203 is part of the Domestic Violence Prevention Act (DVPA) ( 6200, et seq.). The DVPA empowers the court to issue restraining orders in cases where any past act or acts of abuse has occurred,^[5] and section 6203 defines the type of conduct which constitutes such abuse: For purposes of this act, abuse means 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.

Although Steven acknowledges that abuse sufficient to warrant a restraining order under the DVPA need not be actual infliction of physical injury or assault (Conness v. Satram (2004) 122 Cal.App.4th 197, 202), he contends that when the court specifically cites sexual assault as the basis for the finding of abuse, the conduct at issue must be sufficiently serious to qualify as an assault under Penal Code section 240. In Stevens view, the evidence that he grabbed Micheles buttocks and attempted to kiss her against her will did not demonstrate a sufficiently violent attempt to qualify as a criminal assault; he thus concludes the court erred in basing its conclusion of abuse on that ground.

We do not find Stevens argument persuasive. More than a century ago, our Supreme Court determined that an act of criminal assault does not require an attempt to commit the type of violence which might inflict a bodily injury: An assault is defined (Pen. Code,  240) to be an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. The violent injury here mentioned is not synonymous with bodily harm, but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term violence as used here is synonymous with physical force, and in relation to assaults the two terms are used interchangeably. [Citations.] The kind of physical force is immaterial; ... it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will. (People v. Bradbury, supra, 151 Cal. at pp. 676-677, italics added.) Bradbury has been consistently followed by California courts in its definition of assault as including any wrongful act committed by means of physical force, . . . even although only the feelings of each person are injured by the act. (Ibid.)

Stated plainly, Bradbury undercuts the central premise of Stevens argument; i.e., that the trial courts interpretation of the phrase sexual assault in this case was inconsistent with the way in which assault has been defined for purposes of criminal culpability. Clearly, that has not been the case at any point in the past century.^[6] Moreover, even if we were not bound by Bradbury, we would not consider Stevens argument to be a compelling one. Intentionally grabbing a persons private parts against their will, whether they be the breasts of a woman, or the private parts of either a man or a woman, bears little relationship to other kinds of non-injurious touching: e.g., grabbing the persons hand or ruffling their hair. We decline to pretend it does.

Thus, we reject Stevens implicit contention that his conduct was essentially benign, and not the sort of thing that should subject a man to serious consequences. To the contrary, such conduct is expressly made criminal by Penal Code section  243.4. Subdivision (a) of that statute defines the crime of sexual battery as touch[ing] an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse. The statute goes on to specify that touch[ing] means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim. (Pen. Code,  243.4, subd. (e)(2).) To our minds, a sexual battery includes a sexual assault.

Additionally, we reject Stevens implicit suggestion that the definition of what should be considered an assault is somehow affected by the fact the victim is his spouse. In his brief, Steven inserts that fact into his description of the issue to be determined; e.g., whether or not grabbing ones spouses buttocks in an unwanted and/or offensive manner amounts to a sexual assault under the statute. Put simply, a person has no more right to touch his or her spouse in an unwanted [and] offensive manner than he or she would to inflict such touching on a stranger. While a preexisting intimate relationship might make the determination of what is unwanted or offensive more complicated in a particular instance, it does not change the standard itself. And for purposes of this appeal, it is undisputed that Stevens act of cornering Michele, grabbing her buttocks, and forcing his kisses upon her, was unwanted and offensive to her. Consequently, the court did not err in construing that conduct as a sexual assault.

II

In any event, as Michele points out, the court did not rest its decision to issue the restraining order in this case entirely on its conclusion that Steven engaged in conduct amounting to a sexual assault. Instead, the court described, in some detail, why it believed Steven had also trashed the interior of the family home, destroyed personal property, and deposited Micheles heirloom buffet, upside down, on the driveway in a fit of rage. The court explained that such conduct was an independent basis for concluding that abuse had occurred, pursuant to subdivision (d) of section 6203.^[7]

Steven does not deny that the record includes evidence sufficient to support the conclusion he engaged in the type of behavior which qualifies as abuse under subdivision (d) of section 6203. However, he contends that because the courts decision to issue the restraining order rested in part upon what he considers its erroneous determination he also committed a sexual assault, the case would have to be remanded in any case for a redetermination of whether the order should issue based solely on the evidence of conduct constituting abuse under subdivision (d) of section 6203.

We disagree with Stevens analysis for two reasons. Most obviously, we conclude the argument fails because the courts determination that Stevens other conduct amounted to a sexual assault as that term is used in subdivision (b) of section 6203, was correct.

But there is a more fundamental error in Stevens argument. His implicit assertion is that the labels placed on his conduct might be more significant to the trial courts discretionary decision to issue an order than the substance of that conduct would be. We cannot agree. Once the court properly determines it has jurisdiction to issue a restraining order (i.e., that abuse as described in some provision of section 6203 has occurred), its decision to do so must be based upon an analysis of whether the evidence suggests there is some credible threat of domestic violence in the future. (See  6300: An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence . . . . (Italics added.)

At that point in the courts analysis, it is irrelevant what labels are placed on the evidence. Even assuming we had agreed with Steven that his conduct of grabbing Micheles buttocks and forcing his kisses upon her could not be called a sexual assault, that would not change the courts conclusion Steven had forced Michele to endure such offensive and unwanted touching against her will. It would not change the courts conclusion such conduct was wrongful and inappropriate; and it would not change the courts conclusion such conduct, coupled with Stevens enraged trashing of the house and destruction of personal property, suggests that Michele and the children might be at risk of domestic violence in the future. In other words, trashing the house, coupled with conduct not amounting to sexual assault, would still support the courts order here. Consequently, even if we had eschewed the label of sexual assault, as Steven wanted us to, that would not have warranted any reconsideration of the restraining order in this case.

The order is affirmed. Michele is to recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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^[1] All further statutory references are to the Family Code, unless otherwise stated

^[2] Because the parties in this case share the same surname, we refer to each of them by their first names for the sake of clarity. No disrespect is intended.

^[3] In her testimony at the hearing, Michele explained further: He had been sexually harassing me for a while. He thought it was funny grabbing my butt and grabbing my boobs . . . . [] And that morning he cornered me and I couldnt get away and he was kissing me and grabbing me and I asked him to stop and stop, and he wouldnt, so I slapped his face.

^[4] Steven conceded he had left the buffet outside, but claimed it was for less than one hour, when he was unexpectedly called away to his real estate office. He also acknowledged the buffet was damaged, but claimed that damage was preexisting. He denied having damaged the buffet himself. He asserted the other problems depicted in the photographs were merely temporary manifestations of his efforts to reorganize the house and otherwise spruce it up in preparation for selling.

^[5] Family Code section 6300 provides: An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.

^[6] We are likewise unpersuaded by Stevens citation to other Penal Code statutes referring to sexual assault. Penal Code section 269 specifically defines aggravated sexual assault of a child, and thus cannot be used as limitation on what conduct might be properly be viewed as an ordinary sexual assault; and Penal Code section 11165.1, specifically does include intentional touching of the genitals or intimate parts . . . or the clothing covering them . . . . within its definition of what constitutes sexual assault of a child. And as Steven acknowledges, Welfare and Institutions Code section 15610.63, subd. (e)(1), includes physical contact . . . through the clothing of the victim as one of the acts which qualifies as sexual assault of an elderly person. (Welf. & Inst. Code,  15610.63, subd. (e)(1), incorporating Pen. Code,  243.4.)

In addition, appellant filed a request for judicial notice of the legislative history is Assembly Bills 3593 and 4000. The request is denied because its consideration was unnecessary to our interpretation of the phrase sexual assault in this case.

^[7] Subdivision (d) of section 6203 specifies that abuse also includes any behavior that has been or could be enjoined pursuant to section 6320. Section 6320, in turn, provides 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, 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.