Filed 9/30/26 Tucker v. Hawley CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LEONARD TUCKER, JR.,
Plaintiff and Respondent, A174569
v. (Lake County
STEVE HAWLEY, Super. Ct. No. CV426891)
Defendant and Appellant.
Appellant Steve Hawley, respondent below, argues we must reverse the
trial court’s issuance of a three-year civil restraining order for the protection
of Leonard Tucker, Jr. and his fiancée because the trial court (1) applied an
overbroad interpretation of Code of Civil Procedure section 527.6;
(2) improperly included third party workers as protected parties;
(3) prejudicially erred by admitting video evidence that was not
authenticated and contained inadmissible hearsay; (4) violated his due
process rights by allowing the presentation of the video evidence that he and
his counsel could not see; (5) erred by issuing the restraining order although
there was insufficient evidence of future harm; and (6) issued an overbroad
and ambiguous restraining order. Tucker, who sought the restraining order
below, has not responded to Hawley’s opening brief.
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None of Hawley’s arguments is persuasive, in significant part because
his repeated disregard of fundamental rules of appellate review has resulted
in his forfeiture of most of them. In any event, even based on the limited
record provided by Hawley, there is substantial evidence supporting the
court’s order. We affirm.
I. BACKGROUND
In April 2025, in Lake County Superior Court, Tucker filed a request
for a civil harassment restraining order under Code of Civil Procedure
section 527.6 (section 527.6) against Hawley, seeking protection for himself
and Cathy Owens, his fiancée. He asked the court to order Hawley not to
harass, intimidate, or assault the two of them, destroy their personal
property, or disturb their peace; not to contact them in any way; and to stay
at least 15 yards away from them, Tucker’s home, and his vehicle.
Tucker, who described himself as a retired senior, alleged in an
attachment to his request that Hawley resided in the house neighboring
Tucker’s and had in a number of ways physically and verbally abused,
threatened, and intimidated construction workers working on Tucker’s
property. According to Tucker, Hawley’s conduct caused Tucker stress and
anxiety, robbed him of his peace of mind, and made him feel unsafe on his
property. The court issued a temporary restraining order and scheduled a
hearing on Tucker’s request.
Hawley opposed Tucker’s request. In a written response, he
characterized theirs as a neighborly dispute, and contended the court could
not, as a matter of law, grant the request because Tucker’s allegations, rather
than describing actions towards Tucker or his fiancée, described actions
towards the construction workers only. Hawley contended the tension
between them was the result of noise from Tucker’s construction work,
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including after 5:00 p.m., early in the morning, and on weekends, and that
the work left significant debris on Hawley’s property. These and other issues,
he wrote, were ripe for a civil suit, not a request for a temporary restraining
order.
At the evidentiary hearing on Tucker’s request, Tucker appeared in pro
per and Hawley appeared with counsel. Hawley moved to dismiss the
request for the reasons stated in his written response. The court denied the
motion, finding that Tucker’s allegations could rise to a level that supported
the issuance of a temporary restraining order.
Tucker, one of the workers on his property, and Owens, testified on
Tucker’s behalf. Hawley, his wife Hollye Hawley, and a neighbor, Sherri
Wood, testified on Hawley’s behalf.
At the conclusion of the hearing, the court found sufficient evidence to
issue a civil harassment restraining order against Hawley for three years
protecting Tucker and Owens. The court ordered Hawley not to harass,
intimidate, or assault the two of them, destroy their personal property, or
disturb their peace, not to contact them in any way, and not to speak “to
workers on property.” The court further ordered that Hawley stay at least 15
feet away from Tucker, Owens, Tucker’s home and vehicle, and from “workers
on property.”
Hawley filed a timely notice of appeal.
II. DISCUSSION
A. Fundamental Rules of Appellate Review
Although Hawley represents himself, we are mindful that “Pro. per.
litigants are held to the same standards as attorneys.” (Kobayashi v.
Superior Court (2009) 175 Cal.App.4th 536, 543.) His arguments at times
run contrary to certain fundamental rules of appellate review that we cannot
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ignore. We summarize those rules here and will refer to them as necessary in
addressing the merits of his arguments.
It is a fundamental rule of appellate review that an appealed judgment
or order is presumed correct, and error must be affirmatively shown.
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 (Jameson); Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘In the absence of a contrary
showing in the record, all presumptions in favor of the trial court’s action will
be made by the appellate court.’ ” (Jameson, at p. 609.)
To overcome this presumption, “the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate court, that
the trial court committed an error that justifies reversal of the judgment.”
(Jameson, supra, 5 Cal.5th at p. 609.) “ ‘ “[I]f the record is inadequate for
meaningful review, the appellant defaults and the decision of the trial court
should be affirmed.” ’ ” (Ibid.; accord, Gee v. American Realty & Construction,
Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee); Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez), citing Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1295–1296.)
It is also the appellant’s burden to provide reasoned argument and
citations to relevant legal authority to support that argument. (Lee v. Kim
(2019) 41 Cal.App.5th 705, 721.) Accordingly, “[w]hen an appellant fails to
raise a point, or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as forfeited.” (Delta Stewardship
Council Cases (2020) 48 Cal.App.5th 1014, 1075.) An appellant also must
support his or her appellate arguments with record citations or the appellant
has forfeited any claim of error. (People v. Hoyt (2020) 8 Cal.5th 892, 939.)
Further, “ ‘[i]n every appeal, “the appellant has the duty to fairly
summarize all of the facts in the light most favorable to the judgment.
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[Citation.] . . .” ’ [Citation.] When . . . an appellant fails to fulfill this duty
the claim is forfeited.” (Oak Valley Hospital Dist. v. State Dept. of Health
Care Services (2020) 53 Cal.App.5th 212, 237 (Oak Valley Hospital Dist.).)
“This requirement follows from the rule that we presume on appeal the
evidence is sufficient to support the jury’s factual findings, and the appellant
must affirmatively demonstrate to us that it is not.” (Estes v. Eaton Corp.
(2020) 51 Cal.App.5th 636, 650; ibid. [“ ‘[I]f one is going to make a “the-facts-
compel-that-I-win-as-a-matter-of-law” argument, one’s brief must fairly state
all the evidence.’ ”].)
Finally, even were we to find error, it is the appellant’s burden to
provide us with a sufficient record to evaluate prejudice; in the absence of an
adequate record we must also presume the court’s ruling is correct. (Hotels
Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348
(Hotels Nevada); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141
(Ketchum); Gee, supra, 99 Cal.App.4th at p. 1416; Hernandez, supra, 78
Cal.App.4th at p. 502.)
B. Section 527.6
Code of Civil Procedure section 527.6 (section 527.6) authorizes a
“ ‘ “person who has suffered harassment” to obtain a temporary restraining
order and injunction against the harassing conduct and provides an
expedited procedure to obtain such an injunction.’ ” (Schild v. Rubin (1991)
232 Cal.App.3d 755, 762 (Schild).) It “was enacted to provide an expedited
procedure for preventing ‘harassment’ as defined.” (Byers v. Cathcart (1997)
57 Cal.App.4th 805, 811.)
“Such a proceeding is statutorily designed to narrowly focus on
interpersonal conflict. Its purpose, when warranted by the circumstances, is
to prevent threatened future injury through a resulting ‘order enjoining a
party from harassing, intimidating, molesting, attacking, striking, [or]
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stalking, . . . destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, or coming within a specified distance of, or
disturbing the peace of, the petitioner.’ (§ 527.6, subd. (b)(6)(A).)” (Olson v.
Doe (2022) 12 Cal.5th 669, 682.) “The court need not make express findings,
but rather, ‘the granting of an injunction itself necessarily implies that the
trial court found that [the respondent] knowingly and willfully engaged in a
course of conduct that seriously alarmed, annoyed or harassed [the
petitioner], and that [the petitioner] actually suffered substantial emotional
distress.’ ” (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 88–89.)
“[H]arassment” under section 527.6 must be found by clear and
convincing evidence. (§ 527.6, subd. (i)(1)). It is defined as “unlawful
violence, a credible threat of violence, or a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate purpose. The course of
conduct must be that which would cause a reasonable person to suffer
substantial emotional distress, and must actually cause substantial
emotional distress to the petitioner.” (§ 527.6, subd. (b)(3).) A “course of
conduct” is defined as “a pattern of conduct composed of a series of acts over a
period of time, however short, evidencing a continuity of purpose . . . .”
(§ 527.6, subd. (b)(1).)
While it must be shown that the harassment is directed against a
specific person, “[i]n the discretion of the court, on a showing of good cause, a
temporary restraining order or order after hearing . . . may include other
named family or household members.” (§ 527.6, subd. (c).)
We review the trial court’s issuance of a civil restraining order under
section 527.6 for substantial evidence. (Schild, supra, 232 Cal.App.3d at
p. 762.) “Evidence is substantial if it is reasonable, credible, and of solid
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value. [Citation.] ‘The appellate court evaluates the evidence in the light
most favorable to the plaintiff.’ [Citation.] This means ‘ “the evidence most
favorable to plaintiff must be accepted as true and conflicting evidence must
be disregarded.” ’ ” (Jimenez v. Hayes Apartment Homes, LLC (2025) 115
Cal.App.5th 1072, 1083.) We “ ‘also “accept logical inferences that . . . might
have [been] drawn from the circumstantial evidence.” ’ [Citation.] We do not
question the credibility of a witness’s testimony, so long as it is ‘not
inherently improbable,’ nor do we reconsider the weight to be given any
particular item of evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 302.)
Nonetheless, “ ‘whether the facts, when construed most favorably in
[the petitioner’s] favor, are legally sufficient to constitute civil harassment
under section 527.6, and whether the restraining order passes constitutional
muster, are questions of law subject to de novo review.’ ” (Harris v.
Stampolis (2016) 248 Cal.App.4th 484, 497.)
C. Hawley’s Claims of an Overbroad Interpretation of Section 527.6
and of Insufficient Evidence
Hawley argues that the trial court committed legal error by applying
section 527.6 protections in four respects.
First, the court applied these protections to a circumstance where
Hawley was merely “moving dirt and cleaning his property. His sole motive
in moving the dirt was to remedy a nuisance to his property created by
Respondent’s Third-Party Workers. . . . No evidence presented shows
[Hawley] was targeting the Third-Party Workers. . . . Because [Hawley’s]
conduct was directed at property, it falls outside the scope of Code of Civil
Procedure, section 527.6 . . . .”
Second, to the extent the trial court may have found that his actions
were targeted against Tucker’s workers, the court was still wrong to issue the
restraining order, since “[n]o act of [Hawley] is alleged to have been directed
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at Respondent, nor does any evidence presented suggest this.” Hawley also
contends the trial court erred by denying what he characterizes as his two
motions to dismiss.
Third, the court erred in issuing the order because his conduct served a
legitimate purpose. According to Hawley, “[s]ubstantial evidence, including
testimony and video evidence, established that [Hawley]’s interactions arose
from ongoing concerns regarding early morning and weekend construction
activity affecting the peace and general welfare of his adjacent property and
improvements . . . .”
Fourth, the evidence did not establish the requisite “ ‘course of
conduct.’ ”
Next, Hawley claims the court erred in issuing the restraining order.
He argues that “the evidence presented at the restraining order hearing
unambiguously pointed to the conclusion that the conduct [Tucker]
complained of was not likely to be repeated” because, he contends, the
construction work was completed and the incidents between Hawley, the
construction workers, Tucker, and Owens had ended.
All of Hawley’s arguments fail because he bases them on his one-sided
summary and characterization of the evidence. Rather than fulfill his duty
as appellant to summarize all of the facts favorable to the court’s order (Oak
Valley Hospital Dist., supra, 53 Cal.App.5th at p. 237), he summarizes only
that evidence—such as his own testimony—that supports his self-serving
account of what occurred without considering the other evidence, such as the
testimony of Tucker, Owens, and one of the construction workers, Jorge
Garcia. Then, treating his self-serving account as if it were the only available
evidence, he accuses the court of misapplying section 527.6. There are
consequences for an appellant who takes this approach. Hawley has forfeited
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any claim of error by his failure to summarize all of the facts in support of the
court’s order. (Oak Valley Hospital Dist., at p. 237.)
Even were we not to find forfeiture for Hawley’s failure to summarize
all of the evidence, we would still reject his claims because he does not
provide a sufficient record for us to evaluate them. Although Tucker’s
presentation to the court included upwards of about 20 videos that Tucker
contended showed Hawley’s aggressive, threatening behavior (we reject
Hawley’s claim that the videos were improperly admitted, post), Hawley has
not included any of them in the record. Therefore, we must reject his claims.
(Hotels Nevada, supra, 203 Cal.App.4th at p. 348; Ketchum, supra, 24 Cal.4th
at pp. 1140–1141; Gee, supra, 99 Cal.App.4th at p. 1416; Hernandez, supra,
78 Cal.App.4th at p. 502.)
Finally, we briefly note that even without the videos, testimony
provided substantial evidence to support the court’s ruling. For example,
Garcia testified about Hawley throwing “a lot of dirt and other stuff,”
including on his vehicle, and insulting the workers, and about times when
Hawley used his wheelbarrow to block Garcia from leaving, came on to
Tucker’s property to argue with Garcia, and threatened to hit Garcia. Garcia
said Hawley impaired his work every day, and threw dirt in workers’ faces
and at their bodies.
Owens testified that three times in the last three years, Hawley had
walked up to her in a threatening manner, close enough to where she could
smell alcohol on his breath. She called the sheriff’s department twice about
Hawley’s “vandalism” of Tucker’s property. About three days after the first
sheriff’s visit, Hawley was throwing things over a wall and onto Tucker’s
property and she began videoing him from the middle of Tucker’s private
road (although no such video was played for the court). Hawley “stomp[ed]”
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over to her from about 100 feet away, then retrieved his leaf blower and
began blowing rocks, gravel, and dirt on her “face and what have you,”
attacking her and causing her fear and to feel threatened. To the best of her
recollection, this occurred after the court had issued a temporary restraining
order against Hawley.
Finally, Tucker, who testified that he spent about 50 percent of his time
on the property and the rest in San Diego, said that he had witnessed “Mr.
Hawley with that leaf blower, with a shovel, with a rock”—apparent
references to Hawley’s aggressive actions with those things towards people or
things on Tucker’s property—and that “stuff is escalating.” One time, Tucker
had the sheriff come to the property and talk with Hawley. Tucker said “that
Mr. Hawley’s actions have made me fear for anyone that comes to my home.
With some interactions that I’ve had with Mr. Hawley . . . he’s trying to bait
me in to some sort of physical action . . . . [¶] So I fear for my safety. I fear for
my fiancee’s [sic] safety, my friends, family, service providers that may come
to my property to work for me. [¶] . . . I’ve been verbally assaulted, bullied,
unofficial policed, and intimidated and dealing with vandalism, which has
made me feel threatened, anxious in a place where I should be able to feel
peace . . . .”
And while Garcia testified that his construction work was done, Tucker
testified that “[m]y construction is ongoing. I can’t tell you if tomorrow I
want to do something.” The court could reasonably infer from Tucker’s
testimony and the evidence of Hawley’s repeated aggression that there was
sufficient evidence of future harm occurring whenever Hawley became
disturbed by something occurring on Tucker’s property.
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In short, we reject Hawley’s claims of court error in interpreting
section 527.6 and finding sufficient evidence for its issuance of a restraining
order.
D. Hawley’s Claim of Improperly Protected Workers and an
Overbroad Restraining Order
Next, Hawley argues the portion of the restraining order “protecting
the Third-Party Workers must be reversed or remanded for further
consideration” because a restraining order issued under section 527.6 cannot
protect the employees or contractors of a protected party.
As we have indicated, a restraining order under section 527.6 may be
issued to protect a specific person being harassed and, upon showing of good
cause, to protect other family or household members. (§ 527.6, subds. (b)(3),
(c).) Hawley relies on an appellate decision which concluded these provisions
limit the reach of a restraining order such that it cannot be used to protect
employees of the person protected. (See Hansen v. Volkov (2023) 96
Cal.App.5th 94, 104, fn. 5.) We need not decide whether Hansen is correct,
however. Hawley’s claim fails because it is based on a mischaracterization of
the record. The court’s restraining order does not designate any workers as
protected parties. Rather, it designates only two protected parties—Tucker
and his fiancée, Owens, whose protection Hawley does not challenge in this
particular argument.
The order does provide that Hawley is not to speak “to workers on
property,” and must stay at least 15 feet from them. We note that Hawley
does not cite or otherwise address Code of Civil Procedure section 527.6,
subdivision (b)(6)(B) permitting orders enjoining “specified behavior that the
court determines is necessary to effectuate” the primary protective orders.
But regardless, because Hawley makes no effort to explain, through reasoned
argument and the presentation of legal authority, why the court could not
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issue these orders as part of its effort to protect Tucker and Owens, he has
forfeited this claim as well. (Delta Stewardship Council Cases, supra, 48
Cal.App.5th at p. 1075.)
Even were we not to find forfeiture, there is substantial evidence in the
record, which we have already recounted, to conclude the court was within its
discretion to order Hawley to stay away from workers on Tucker’s property in
order to protect Tucker and Owens from causing them to fear for their safety.
Hawley also claims the restraining order is unconstitutionally
overbroad and vague because it does not clearly define the persons protected
and the conduct prohibited—referring to the court’s order that he not have
contacts with the “workers on property.” We reject this claim for the same
reason—the court did not designate workers as protected parties.
Also, Hawley complains that the mere reference to workers is too
vague, but he fails to present any reasoned argument, present a sufficient
record, or sufficiently summarize all the evidence so as to show why
substantial evidence, which we have already summarized, does not support
the court’s order prohibiting Hawley from disturbing anyone working on
Tucker’s property. He also contends that the property is not sufficiently
identified, but we disagree; the context of the restraining order makes clear
the property is Tucker’s. Also, Hawley contends that the court’s order would
unnecessarily prevent him from contacting workers he too employs. This too
is unpersuasive because the court tailors its prohibition to those working on
Tucker’s property.
E. Hawley’s Evidentiary Error Claim Regarding the Videos
Next, Hawley argues the trial court erred in admitting
“unauthenticated and unverified video evidence, despite objections on
relevance, hearsay, and lack of foundation . . . .” He also argues the trial
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court misinterpreted a video and did not take the time to verify a material
detail against another video.
1. Proceedings Below
During the evidentiary hearing on Tucker’s request for a restraining
order, Tucker, with the court’s permission, played a series of what he said
were 20 videos for the court, most of which can be identified from the
reporter’s transcript. The record does not contain any of the videos.
Tucker told the court he had captured some of the videos on a motion-
activated Ring camera that was attached to his home. When Hawley’s
counsel, Steven Sabel, asked what was on the video Tucker was about to
play, Tucker said, “Interrogation, verbally, taking shovel loads of dirt and
throwing it on to my vehicle, on to the worker’s vehicle, complaining that
they’re there before 8:00 o’clock and it’s after 8:00 o’clock.” Tucker then
played some videos, describing some of what was occurring in them as he
played them.
At this point, Sabel, who was with Hawley and appearing remotely via
Zoom, asked, “Your Honor, is there a better way we can actually see these
videos?” The court suggested that “we get you on our Zoom meeting and then
you can share your screen,” apparently making the latter comment to Tucker.
Sabel replied, “Don’t worry about it,” and, “Let’s just keep going. If it
becomes an issue we’ll address it.” Tucker continued to play videos.
A short time later, Sabel asked who was taking “these videos” because
“[t]hese, obviously, aren’t Ring cameras anymore.” Tucker responded that
they were taken by the brother of “Jorge,” and that both were “here.” The
court noted that a number of witnesses were waiting outside, both to testify
and authenticate videos.
Tucker continued to play videos, including multiple videos identified as
from the Ring camera and at least one from within a car, until the court
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recessed the proceedings for lunch. Sabel asked that Tucker email the videos
to him during the lunch break. When they reconvened, Sabel said, “I had an
opportunity over lunch to take a look at all of the videos.” He then raised
multiple objections, including on hearsay grounds if Tucker were asserting
“certain interactions or statements taking place are true.” Further, Sabel
said, “I also think there’s foundational issues and authenticity issues, given
that a lot of them he mentioned are not his own videos, that he had received
them from his own workers.”
The court said, “I . . . agree with the foundational grounds. But, what
I’m going to do is play the videos, and . . . Mr. Tucker, you need to have the
people who took the videos . . . come and testify to those videos.” The court
allowed Tucker to continue to play the Ring camera videos until they could
work through the authenticity of the others via testifying witnesses.
Tucker continued to play videos. He then called Jorge Garcia to the
stand. Among other things, Garcia testified that he sent two videos to
Tucker, describing one as showing “a lot of dirt and other stuff that had been
thrown in there.” There was no further discussion about the authenticity of
any of the videos.
2. Analysis
Authentication of a “writing” is required before it may be received in
evidence. (Evid. Code, § 1401.) “Authentication of a writing means (a) the
introduction of evidence sufficient to sustain a finding that it is the writing
that the proponent of the evidence claims it is or (b) the establishment of
such facts by any other means provided by law.” (Evid. Code, § 1400.) A
“writing” includes every means of recording upon a tangible thing any form of
communication or representation (Evid. Code, § 250), including video
recordings. (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) “As a general
matter, we apply ‘the abuse of discretion standard of review to any ruling by
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a trial court on the admissibility of evidence’ [citation], . . .” (People v.
Thompson (2016) 1 Cal.5th 1043, 1120.)
Hawley’s arguments fail for a number of separate and independent
reasons. First, at the very least, even if we were to assume for the sake of
argument that the trial court erred regarding all the videos—which is not the
case in light of, for example, the authentication that Tucker provided
regarding the Ring camera videos (the overwhelming majority of what was
shown to the court)—Hawley fails to include any of the videos in the record.
Therefore, we cannot assess whether the admission of any videos was
prejudicial. Faced with this inadequate record, we must conclude that any
erroneous admission was harmless. (Hotels Nevada, supra, 203 Cal.App.4th
at p. 348; Ketchum, supra, 24 Cal.4th at pp. 1140–1141; Gee, supra, 99
Cal.App.4th at p. 1416; Hernandez, supra, 78 Cal.App.4th at p. 502.)
Second, Hawley argues that Tucker submitted “several videos which
were not properly authenticated.” However, he fails to identify in the record
all but one of these videos, thereby forfeiting this claim to all but that video.
(People v. Hoyt, supra, 8 Cal.5th at p. 939.) As for the one video that he does
identify, which apparently involved a vehicle bouncing at a time when
Hawley is shoveling dirt towards it and which the court found concerning in
its ruling, as we have already recounted, the reporter’s transcript indicates
that Tucker identified this as a Ring camera video without objection by Sabel
when Tucker first began playing Ring camera videos. Therefore, Hawley’s
contention is unpersuasive.
Third, Hawley contends regarding this video that the court somehow
erred because it “clearly misinterpreted the video and did not take the time to
verify this detail against the Ring Camera footage (also presented) that gives
a more clear picture as to why the vehicle bounced.” We cannot begin to
15
evaluate this argument without the videos and, therefore, Hawley has
forfeited this argument as well. (Jameson, supra, 5 Cal.5th at pp. 608–609;
Gee, supra, 99 Cal.App.4th at p. 1416; Hernandez, supra, 78 Cal.App.4th at
p. 502.)
Hawley also argues that Tucker “proffered evidence that was baldly
hearsay,” as the court “admitted several cell phone videos into evidence; all of
the cell phone videos were taken by the workers on Mr. Tucker’s property,”
“many” by Jorge Garcia and his brother. According to Hawley, “[t]he person
who took the video of the ‘car bouncing’ never testified in court,” Garcia
testified that he sent two videos to Tucker, but “three worker cell phone
videos were submitted into evidence and given to Mr. Sabel for review over
the lunch recess . . . . All cell phone video evidence should be considered
hearsay evidence and the fact the Court used it as a major deciding factor in
its final ruling highly prejudiced [Hawley].”
This argument fails for at least two reasons (along with the
requirement that we presume any error was harmless because the videos are
not contained in the record, as we have already discussed). First, Hawley
fails to identify anything in the record to support his vague assertions,
thereby forfeiting these arguments. (People v. Hoyt, supra, 8 Cal.5th at
p. 939.) Second, without the videos, we have no way of determining whether
or not they contain “hearsay.” (Jameson, supra, 5 Cal.5th at pp. 608–609;
Gee, supra, 99 Cal.App.4th at p. 1416; Hernandez, supra, 78 Cal.App.4th at
p. 502.)
In short, Hawley’s evidentiary error claim is unpersuasive.
F. Hawley’s Due Process Claim Regarding the Video Evidence
Finally, Hawley argues that the trial court violated his federal and
state constitutional rights to due process by allowing Tucker “to present video
evidence [Hawley] and/or his counsel could not properly see or hear.”
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This argument fails for at least two reasons. First, the record does not
show that Hawley and his counsel, Sabel, could not “properly” see or hear the
videos. Rather, Sabel merely asked the court if there was a better way to
view the videos and, offered the chance to join in on a Zoom presentation of
the videos, declined to do so, telling the court it was okay to continue with the
viewings and that he would raise the matter again if it became an issue. In
other words, the record shows only that Sabel and Hawley could see and hear
the videos sufficiently.
Second, Sabel’s counsel announced after the lunch recess at the July 18
session that he had in fact viewed all the videos, and raised no objection
regarding his or Hawley’s purported difficulty in viewing any of them. To the
extent there was any difficulty, Hawley forfeited this claim by failing to first
object below. (Evid. Code, § 353, subd. (a); People v. Jasso (2025) 17 Cal.5th
646, 674.)
III. DISPOSITION
The order appealed from is affirmed. Respondent having failed to
submit a responding brief on appeal, we have no occasion to award costs.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GORDON, J.*
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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