P. v. Collado
Filed 4/25/13 P. v. Collado CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO A. COLLADO, Defendant and Appellant. | A135247 (San Francisco County Super. Ct. No. 211410) |
Fernando
A. Collado (appellant) was convicted, following a jury trial, of two
misdemeanor counts of violating a restraining
order. On appeal, appellant contends
the trial court erred and violated his constitutional
rights when it refused to engage in de novo review of the validity of the
restraining order on which his convictions were based. We shall affirm the judgment.
Appellant
was charged by information with one count of
(a)—count one);
title="">[1] one count of stalking in
violation of a restraining order (§ 646.9, subd. (b)—count two); and four
misdemeanor counts of contempt of a court order (violating a restraining order)
(§ 166, subd. (a)(4)—counts three through six).
At
the conclusion of appellant’s trial, a jury found him guilty of counts three
and four, the remaining misdemeanor counts for violating a restraining
order. The jury deadlocked on counts one
and two, and the court declared a mistrial as to those two counts.
On April 30, 2010, the trial court imposed two consecutive six-month
sentences on counts three and four.
A
notice of appeal was initially filed in the Appellate Division of the San
Francisco Superior Court. The matter was
subsequently transferred to this court, and a notice of appeal was filed in
this court on March 12, 2012.
Gilberto
Orozco testified that he lived on Somerset Street in San Francisco with his wife Luz Maria
Castillo and their young children. He
had known appellant, his first cousin, all of his life. They had previously had a close, friendly
relationship. In 2006, Orozco hired
appellant to paint his house. One day,
Orozco discovered appellant in the garage smoking what appeared to be crystal
meth. Orozco told him to stop painting
and paid him for his work.
The
Orozcos had no further contact with appellant until March 2009, when appellant
began engaging in harassing behavior. He
called Orozco numerous times for more than a month, and said things like, “
‘I’m going to get you’ †and “ ‘I’m coming after you.’ †He left voicemails and when Orozco called him
back, appellant would be incoherent, speaking “gibberish†and “nonsense.†Appellant called on both Orozco’s cell phone
and home phone. Orozco told appellant to
stop calling and, eventually, the Orozcos stopped answering their phones. In May 2009, appellant began calling again
and threatened to kill Orozco.
When
Orozco learned in May 2009 that appellant had come to his house and threatened
his family while he was not at home, he became concerned that appellant might
hurt him or his family. After a police
officer recommended that they get a restraining order, Castillo got the forms. Orozco then filled out the forms with her help,
and Castillo filed the restraining order application with the court.
Both
Orozco and appellant testified at the restraining order hearing. Appellant’s behavior at the hearing was
“menacing,†and he testified that Orozco’s family had poured gasoline on him
and that Orozco “had a mannequin, that was out to kill him.†At the conclusion of the hearing, a judge
issued a restraining order against appellant.
Appellant,
however, continued to harass the Orozcos, including calling 911 in August 2009
and reporting that Orozco was beating his wife.
Orozco was afraid for his safety and for that of his family. On December 23, 2009, Orozco was at work when
he received phone a call from his next-door neighbor who said there was “a
crazy guy†outside who had come over with the police and was asking about
Orozco. Orozco later received phone
messages from his wife, in which she said that appellant was “out front.†He called her back repeatedly but could not
reach her, which made him afraid that appellant had killed his wife and
children. He went home, but his family
was not there. His neighbor later told
him that his wife did not want to come home until Orozco was there. He saw appellant driving by in front of his
house and called 911. Officers came over
and took a statement.
Orozco’s
wife, Castillo, testified that, after weeks of
from appellant that began in March 2009, appellant came to their house in April
or May 2009. She watched through an open
window as he put on a pair of black gloves and a beanie and came up the stairs
to their front door. Appellant asked
through the window if Orozco was home and Castillo said he was not. He demanded that she open the door, but she
refused. He started knocking harder and
also kicked the door. He said “that he
was going to put an end to this, to let my husband know he was coming for him.†He then said, “ ‘I’m going to kill him.’
†Castillo called 911, but by the time
police arrived, appellant was gone.
Appellant’s behavior scared Castillo, who was about six months pregnant
and had her two-year-old son in the house.
Castillo
further testified that, in early August 2009, a police officer came to the
Orozco home regarding a report received during a 911 call that Castillo and her
son were being hurt by Orozco. Castillo
told the officer that everything was fine and that her husband had been at work
since early that morning. She later
learned that it was appellant who had called 911. The police came to the Orozco home two
additional times for well-being checks.
The recording of an October 1, 2009 call to 911 was played at trial and
Castillo identified appellant as the caller.
San
Francisco Police Officer Rolando Canales testified that, on the afternoon of
December 23, 2009, he was dispatched to an address on Somerset Street not far
from the Orozco home. There were
numerous officers and paramedics at the scene.
A man Canales identified at trial as appellant approached and said he
needed someone to check on the well-being of a relative at a nearby address on
Somerset. He said he felt that the
relative was being held against his or her will in the garage of the house. Canales and appellant went to a house on
Somerset, and Canales knocked on the front door. There was no answer, but a Hispanic woman
approached and she and appellant briefly engaged in a dispute. Canales then advised appellant that if there
was a court order for him not to be there, he should leave. Canales left the area after seeing appellant
leave.
Yvonne
Villegas, who lived next door to the Orozcos, testified that, she was outside
her house about 3:30 p.m. on December 23, 2009, when she saw a patrol car
coming slowly down the street with a man walking beside it. The man walked up to Villegas and asked if
Castillo was home. She said no, and he
introduced himself as “ ‘Fernando, the man with the mannequin.’ †He also said, “ ‘Do you know that your
neighbors, Lucy and Gill, have cyber sex.’ â€
While the police officer knocked on the front door of the Orozco home,
appellant began knocking and then kicking on the garage, calling for
“Gill.†Villegas called Castillo, who
asked to speak with the police officer, but he had already gone by then. Appellant was still there, but left soon
after. Appellant drove up a short time
later and asked Villegas if Orozco was home.
He then said, “ ‘Tell Gill I’ll be back,’ †and drove away. She then saw appellant driving around the
area; he drove by the Orozco house one more time about 5:15 p.m.
Castillo
testified that after Villegas called her, she called 911 to request that an
officer be sent to her home because a relative against whom she had a
restraining order was at her door, but no officer was dispatched. She was unable to reach her husband, and so
she sent him a text message. When she
arrived home about 6:00 p.m., Orozco and Villegas were waiting outside. Appellant was not there.
Castillo
also testified that she had received many harassing phone calls from her
sister-in-law after Castillo temporarily obtained guardianship of the
sister-in-law’s baby during a custody dispute between the sister-in-law and her
husband, who was Castillo’s brother.
Castillo obtained a restraining order against her sister-in-law in May
2009. She later called police when her
sister-in-law came to her home. Her car
was vandalized several times. Castillo
did not see who did it, but she thought her sister-in-law or appellant could
have been responsible for the vandalism.
Dr.
Paul Good, a clinical and
forensic psychologist, conducted an evaluation of appellant. He concluded that appellant suffered from a
delusional disorder of the persecutory type.
Specifically, he believed that appellant had a “fixed belief that the
Orozcos are manipulating him through cyberspace through a helmet†implanted on
his head that produced “visceral physical sensations.†Appellant believed they were using a voodoo
mannequin to manipulate him. He also
believed that Orozco’s sister was erotically stimulating him through the
mannequin.
San
Francisco Police Officer Kathleen Walsh testified that, on June 19, 2008, she
was dispatched to the home of Filiberto Fuentes in South San Francisco, where
she had been dispatched many times before.
On that occasion, Fuentes said that appellant had come to his house and
was hitting the garage door with a baseball bat and was challenging Fuentes to
come outside and fight him. Walsh then
went to appellant’s nearby residence and spoke with him. Appellant said that Fuentes had woken him up
by taunting him and pumping butane gas into his room, which made him
angry. Walsh and other officers had been
called out to the same location over 16 times in response to appellant
complaining that neighbors were pumping gas into his bedroom or in response to
calls from Fuentes.
Appellant contends the trial court violated his
constitutional rights to due process, to present a defense, and to confront
witnesses when it refused to engage in de novo review of the validity of the
restraining order on which his convictions were based.
Before
trial, defense counsel requested that the trial court hold an Evidence Code
section 402 hearing to determine whether the prior issuance of the restraining
order was supported by sufficient evidence, for purposes of the charges in this
case related to violating that order.
Counsel requested, in the alternative, that the court instruct the jury
that it must find that the restraining order was lawfully issued before it
could use it as the basis for finding appellant guilty of any of the relevant
charges. The court stated that it did
not believe it had jurisdiction to perform a de novo review regarding the
propriety of the issuance of the restraining order. The court reserved ruling on both
requests.
Subsequently,
after the close of the prosecution’s case, defense counsel again questioned the
validity of the restraining order and requested that the court “find that the
restraining order was unlawfully issued and simply take it out of the case,†or
that it instruct the jury about what was required for the issuance of the
restraining order. Defense counsel
observed that the evidence at trial had shown that the restraining order
application was filled out by Castillo, based in part on her firsthand
knowledge of the events of May 18, 2009, but was signed by Orozco, who had no
personal knowledge of those events. Counsel
also noted that the evidence had shown that the Orozcos were unsure about who
had vandalized their garage and car, even though this was included in the
restraining order application.
Counsel
continued: “Now—we look at what we know
about the evidence now, and we look back at what is required for the issuance
of the restraining order. Is there clear
and convincing evidence of either violence or a credible threat of violence or
a course of conduct that would cause a reasonable person substantial emotional
distress? And now we realize there was
very little evidence before the court at least from anybody with firsthand
knowledge about it. And we now know that
some of that stuff in that report, even hearsay, is not true.â€
The
following colloquy between the court and defense
counsel then ensued:
“THE
COURT: I’ll just cut to the chase on the
request that I find that the restraining order was unlawful. Again, you’re asking this court to conduct a
de novo review, which the court—there’s no legal authority for that
review. His avenue of review if he
wanted a review would have been to have appealed the order. I’m not going to disturb the facts and the
findings of [the commissioner]. He was
present to witness the demeanor of both of these parties at the hearing, which
is a significant part of this . . . in any court’s assessment on a
civil restraining order, the body language that the court sees. . . . [¶] . . . I want to make clear on the record
that I’m not reviewing [the commissioner’s] order. But the court made clear if there was
evidence on the stand that any one completely falsified the information in the
document or at the hearing, that I would revisit the issue. That hasn’t happened.
“And
to the extent that we’re talking about the single issue of the car being
vandalized, that was but one factor that was in the record before [the
commissioner].â€
The
court then reviewed the transcript from the restraining order hearing and noted
that appellant did not deny going to the Orozco home on May 18. Rather, “[i]t was a dispute of what happened
at the house.†The court then reiterated
that there was nothing before it “that would cause a de novo review of the
findings of [the commissioner] in issuing the restraining order.†Counsel objected, stating that he believed
the court could collaterally review the commissioner’s order.
The
court responded that, “to make the record clear, even if the court would review
it, there is sufficient evidence in this record when someone comes to the house
of a woman who is pregnant and she’s home alone with a two-and-a-half-year-old
child and her mother and that person threatens and there’s been a series of
telephone calls and the person is on drugs, that would—even if this court were
to engage in a de novo review not having the benefit of seeing the parties here
as [the commissioner] did, that would provide clear and convincing evidence,
particularly because the defendant did not deny that he went to the house. And moreover, when he engaged with the court,
he began talking about the Orozco [sic]
throwing gasoline on him before he came to the hearing in the morning and
trying to connect to him through cyberspace.
So the court would, even if it had to engage in that review, find that
there is sufficient evidence—clear and convincing evidence for [the
commissioner] to have issued the restraining order.â€
In
804, 818 (Gonzalez), the California
Supreme Court explained that “the defendant in a
challenge the validity of an injunction, the violation of which is the basis
for the contempt prosecution, even if no such claim was made when the
injunction issued.†Appellant argues that the trial
court in this case was required, pursuant to Gonzalez, to engage in de novo review of the evidence offered in
support of the request for the restraining order. Respondent counters that the trial court
correctly concluded that it did not have authority to review the validity of
the restraining order.
We
need not decide whether appellant is correct that the trial court erroneously
concluded that it was not authorized to engage in a de novo review of the
evidence supporting the restraining order.
(See Gonzalez, supra, 12 Cal.4th at pp. 818-819.) That is because, even assuming the trial
court erred, the colloquy between the court and counsel reveals that the court
did in fact engage in a detailed review of the validity of the restraining
order—which included an examination of the reporter’s transcript from the
hearing on the restraining order and the order itself—and specifically
concluded that it “would, even if it had to engage in that review, find that
there is sufficient evidence—clear and convincing evidence for [the
commissioner] to have issued the restraining order.â€
In
reaching its conclusion, the court considered, and rejected, counsel’s concerns
about the fact that it was Orozco’s wife, Castillo, who had first-hand
knowledge of the events of May 18, 2009, while it was Orozco who testified at
the hearing. The court also considered
the fact that, while the Orozcos had requested the restraining order based in
part on appellant’s vandalism of their garage and car, their trial testimony
showed that it was uncertain whether it was appellant who had engaged in the
vandalism. As the court noted, the
evidence in support of the restraining order included not only the events of
May 18, 2009, and the vandalism, but also evidence of the repeated threatening
telephone calls to Orozco, the fact that appellant was on drugs, and the fact
that he told the commissioner that Orozco had thrown gasoline on him before he
came to the hearing and had tried to connect to him through cyberspace. We find the court’s reasoning and its
conclusion that the restraining order was properly issued to be sound.
Hence,
even assuming the court erred when it ruled that it did not have the authority
to review the evidence supporting the commissioner’s determination, given the
fact that such a review did take place, the allegedly erroneous ruling was
plainly harmless beyond a reasonable doubt.
(See Chapman v. California
(1967) 386 U.S. 18, 24.)
name="_ftnref3" title="">[3]
The
judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
further statutory references are to the Penal Code unless otherwise
indicated.
five and six were subsequently dismissed due to witness unavailability.
