Jarvinen v. Giubbolini
Filed 10/4/13 Jarvinen v. Giubbolini CA4/3
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opinion has not been certified for publication or ordered published for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
HOLLY JARVINEN
Plaintiff and Respondent,
v.
LUIGI GIUBBOLINI,
Defendant and Appellant.
G047721
(Super. Ct. No. 12V001931)
O P I N I O N
Appeal from an order of
the Superior Court
of
County, Glenn R. Salter, Judge. Affirmed.
Luigi Giubbolini, in
pro. per., for Defendant and Appellant.
Severson & Werson
and Matthew J. Esposito for Plaintiff and Respondent.
* * *
Defendant
and appellant Luigi Giubbolini appeals from a restraining order issued against
him in favor of plaintiff and respondent Holly Jarvinen pursuant to the
Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200 et seq.; all
further statutory references are to the Family Code unless otherwise
stated). He argues the trial court “was
not legally qualified to decide the case,†there was insufficient evidence supporting
the order, and the court erred both in admitting certain photographs due to
lack of foundation and in dismissing his self-defense claim. Finding no error, we affirm.
FACTS AND PROCEDURAL
HISTORY
Plaintiff
and defendant began a relationship with each other in 2007. Both parties agree that for at least six to
seven months in 2007 they were “dating exclusively.†After 2008 the parties remained in regular
contact; plaintiff described the relationship as friendship that sometimes
involved sexual intimacy. Just one week
prior to the incident that is the subject of this action the parties engaged in
consensual sexual intercourse.
In
September 2012 defendant and plaintiff were at plaintiff’s home watching
television in separate rooms. After
approximately an hour, defendant entered plaintiff’s bedroom and began making
unwanted sexual advances towards her. He
had her pinned down and was continuing his sexual advances while disregarding
her commands that he stop and leave her house.
After defendant grabbed her hair and shook her neck, plaintiff was able
to free one of her hands and struck him in the throat with a “karate chopâ€
movement in an attempt to get him off.
He immediately stopped the attack and retreated into the bathroom.
Moments
later, defendant emerged from the bathroom enraged at plaintiff for striking
him in a manner that “could have killed him†and proceeded to hit her twice in
the face. After plaintiff fell onto the
bed from the force of the blows, defendant got on top of her, slapped her
multiple times in the face, and punched her in the shoulder, back and
thigh. Defendant then threw the
television remote at her, barely missing her head. Defendant made additional verbal threats,
after which he left the house. Plaintiff
called 911 and police responded but did not file a report or take
pictures. Plaintiff took her own
pictures of her injuries.
Two
days after the incident, plaintiff filed an application for a restraining order
against defendant, including copies of the pictures, in an attempt to obtain a
temporary restraining order. A few days
later she obtained such an order under the DVPA. She also filed a request for a restraining
order, to which defendant filed a response, denying all allegations. He claimed that when plaintiff was on the
bed, he leaned over to kiss her goodbye and she struck him with the karate
chop. He stated his windpipe was blocked
and he could not breathe. When he
recovered he tried to explain to plaintiff that she could have killed him but
she said she did not realize she could have hurt him so badly. He then left, telling her he did not want to
see her again.
Both
parties testified at the hearing. At the
conclusion of the hearing the court issued a three-year restraining order. It found the parties had a dating
relationship from 2007 through the date of the incident. It also found by a preponderance of the
evidence that defendant committed domestic violence as defined in section 6203
and did not act in self-defense.
DISCUSSION
1. Sufficiency
of the Evidence
We
review a protective order issued under the DVPA for substantial evidence, that
is “‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’
supporting the court’s finding.
[Citation.]†(
818, 822-823.) “‘We must accept as true
all evidence . . . tending to establish the correctness of
the trial court’s findings . . ., resolving every conflict
in favor of the judgment.’
[Citation.]†(
redetermine the credibility of the
witnesses, or resolve conflicts in the testimony, and we will not disturb
the order if, as here, there is evidence to support it. (People
v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
The
DVPA gives the family law court the authority “to prevent the recurrence of
acts of violence . . . and to provide for a separation of
the persons involved in the domestic violence . . . .†(§ 6220.)
A court may issue a restraining order under the DVPA
“if . . . an affidavit and any additional information
provided to the court . . . show[], to the satisfaction of
the court, reasonable proof of a past act or acts of abuse.†(§ 6300.)
Abuse includes “[i]ntentionally or recklessly . . . caus[ing]
or attempt[ing] to cause bodily injury†and “[s]exual assault.†(§ 6203.)
Defendant
claims there is insufficient evidence to show the parties had a dating
relationship or the existence of any abuse.
Both arguments fail.
Domestic
violence includes “abuse perpetrated against†“[a] person with whom the
[defendant] is having or has had a
dating or engagement relationship.â€
(§ 6211, subd. (c), italics added.)
A “‘[d]ating relationship’†is defined as “frequent, intimate
associations primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.†(§ 6210)
Defendant’s
argument he and plaintiff did not have a dating relationship is flawed.
at the time the abuse occurred and ignores the fact they had
relationship. Defendant himself
testified he and plaintiff dated exclusively for a year and nonexclusively for
four years thereafter. He fails to show,
or even discuss, why their relationship during this time does not meet the
description set out in section 6210.
Plaintiff’s
reliance on Oriola v. Thaler (2000)
84 Cal.App.4th 397 is misplaced.
purposes of DVPA. But the
of section 6210, which controls. (See
1107, 1116.)
Defendant’s
contention there was insufficient evidence of abuse also fails. Plaintiff submitted a declaration and
testified at the hearing about the abuse.
She also submitted photographs of her injuries. As shown above, these laid out a prima facie
case sufficient to support a finding of abuse.
It is irrelevant that defendant’s testimony and declaration contradicted
plaintiff’s. The trial court is the
finder of fact and chose to believe plaintiff and disbelieve defendant. (Galbiso
v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1087, fn. 13
[fact finder may reject witness testimony as part of credibility
assessment].) We do not reweigh
credibility. (People v. Xiong, supra, 215 Cal.App.4th at p. 1268.)
2. Admission of the Photographs
Defendant
also challenges the trial court’s admission of the photographs offered by
plaintiff. He maintains there was
insufficient foundation, and also contends the bruises were not caused by the
abuse but resulted from a car accident in which plaintiff was involved a couple
of weeks earlier. Neither claim
persuades.
A photograph must be authenticated before it may
be admitted into evidence. (Evid. Code,
§ 1401, subd. (a) [requiring authentication of a “writingâ€]; People v. Beckley (2010) 185 Cal.App.4th 509, 514 [photograph is
“‘writing’†under Evid. Code, § 250].)
“[T]he testimony of a person who was present at the time a film was made
that it accurately depicts what it purports to show is a legally sufficient
foundation for its admission into evidence.â€
(People v.
Bowley (1963) 59 Cal.2d 855,
859.)
The trial court’s determination that a
proper foundation has been laid for the admission of evidence will not be
disturbed on appeal absent a showing of abuse of discretion. (County
of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1450.) An abuse of discretion is “established by ‘a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’†(
145, 195.)
Plaintiff testified she took the photographs
herself and they depicted exactly what they purported to show, bruises on her
body sustained during the altercation.
On top of this, plaintiff produced the camera and phone used to take the
photographs, which showed the pictures were electronically dated on the day of
the incident. Therefore the photographs
were sufficiently authenticated.
Defendant argues the dates on the photographs
are susceptible to manipulation and the coloring of the bruises shows they did
not appear on the day the photographs were taken. Defendant also argues the color of the
bruises
did not substantiate the finding they
occurred as a result of the abuse.
Defendant further offers an extensive discussion of why evidence of the
bruises as shown in the pictures is suspect and why it is more believable that
they were caused by plaintiff’s car accident.
With all these arguments defendant is asking us to reweigh evidence,
which, as stated above, is not our function. (People
v. Xiong, supra, 215 Cal.App.4th at p. 1268.)
3. Self-Defense
Defendant next argues
the trial court erred in rejecting his self-defense claim. He points to the court’s findings that both
parties “hit each other†(italics omitted) and emphasizes his version of the
events. He then leaps to the conclusion
this was “mutual combat.†This was
despite the court’s statement it did not “want to use the term mutual.†We defer to the court’s order when there is
substantial evidence to support it, as here.
(Sabbah v. Sabbah, supra, 151
Cal.App.4th at pp. 822-823.)
Further,
once again defendant’s contention the appropriate level of review is de novo is
incorrect. The trial
court’s decision to disallow defendant’s self-defense claim came from its
“application of the law to the facts[, which] is reversible only if arbitrary
and capricious.†(Haraguchi v. Superior Court (2008) 43 Cal.4th. 706, 712.)
To
establish he was acting out of self-defense
defendant had to prove, among other things, that he reasonably believed that he
was in imminent danger of suffering
bodily injury. (People
v. Oropeza (2007) 151 Cal.App.4th 73, 82.)
Additionally, if through his own wrongful conduct, he created the
circumstances under which his plaintiff’s attack or pursuit is legally
justified, he may not invoke self-defense.
(People v. Randle (2005) 35
Cal.4th 987, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
The record
shows defendant’s wrongful conduct caused plaintiff’s use of violence and that
he was not in imminent danger when he retaliated. Defendant was the initial aggressor when he
pinned and struck plaintiff before she hit him in the throat. His attack following plaintiff karate
chopping him did not occur until after he had removed himself from the
situation by retreating into the bathroom.
Plaintiff gave no reason for defendant to think she was going to harm
him again after he had retreated.
Defendant had ample opportunity to leave the residence and remove
himself from any potential future danger.
Accordingly, the trial court did not act arbitrarily or capriciously by
disregarding defendant’s self-defense claim.
The record shows defendant created the circumstances causing plaintiff’s
karate chop to be legally justified and he was not in imminent
4. Gender Equality in Italy
In
rendering its decision the trial court made a comment to defendant that he
could “be a very controlling person†and that “perhaps in your culture or where
you[ are] from maybe you treat women differently than here, but that’s
not the way it [is] here.†Defendant,
who is from Italy, set out a three-page rebuttal in his opening brief, citing,
among other things, examples of women’s equality in Italy and the Divine
Comedy. We do not rely on the court’s
comment in reaching our decision nor do we consider plaintiff’s discussion of
this issue.
DISPOSITION
The order
is affirmed. Plaintiff is entitled to
costs on appeal.
THOMPSON,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
legally qualified to decide this case†(boldface omitted) because he and
plaintiff were not in a dating relationship.
It is not clear what defendant means by his claim the court was not
“qualified.†If he is asserting the
court had no jurisdiction to hear the case, he is incorrect. The domestic violence restraining order was
sought under the DVPA and the superior court has jurisdiction over all
proceedings arising under the Family Code.
(§ 200.) If he is asserting the
court could not hear the case under the DVPA because there was no evidence of a
dating relationship, he is again incorrect.
Whether there was a dating relationship was one of the disputed factual
questions the court had to determine.
of a bruise as determined by its color that defendant appended to the opening
brief as it is outside the record. (
Cal.App.4th 1095, 1103, fn. 4.)
