Mitchell v. Mitchell
Filed 6/28/12 Mitchell v. Mitchell CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
SHANNON
MITCHELL,
Plaintiff and Respondent,
v.
MATTHEW
MITCHELL,
Defendant and Appellant.
A131632
(Contra
Costa County
Super. Ct.
No. D09-05093)
Matthew
Mitchell appeals from an April 6, 2011,
domestic violence protective order
restraining him from committing certain acts against his ex-wife Shannon
Mitchell.
grounds. We affirm.
After
the parties had married and had two children, Matthew and Shannon separated in
2007. On September 30, 2009, the court
granted Shannon’s same day request for a temporary restraining order, pursuant
to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.)
(hereafter DVPA)
title="">[3]. The court’s Judicial Council form order
directed that Matthew “must not do
the following things to” Shannon:
“Harass, attack, strike, threaten, assault (sexually or otherwise), hit,
follow, stalk, molest, destroy personal property, disturb the peace, keep under
surveillance, or block movements,” or “[c]ontact (either directly or
indirectly), or telephone, or send messages or mail or e-mail,” “[e]xcept for
brief and peaceful contact as required for court-ordered visitation of children
unless a criminal protective order says otherwise.” The order also advised Matthew that a hearing
was scheduled for October 20, 2009,
at which time the court could “make restraining orders that last for up to 5
years,” and “consider whether denial of any orders will jeopardize [Shannon’s]
safety.” “[A]ny orders made in this form
end at the time of the court hearing . . ., unless a judge extends
them.”
On
October 20, 2009, at the
scheduled hearing, Shannon appeared by counsel, and
Matthew represented himself.
name="_ftnref5" title="">[5] The court had read and found the “rude,”
“persistent,” and “incessant,” text messages attached to Shannon’s
moving papers constituted harassment
supporting the issuance of a temporary restraining order. The court also read the documents that
Matthew had filed on October 15th. The
court reissued the temporary restraining order because there was “a prima facie
case” supporting Shannon’s request. The matter was continued for a hearing to
allow the parties to present further evidence on the DVPA proceeding and to
address certain custody issues.
name="_ftnref6" title="">[6]
On
October 28, 2009, Shannon
petitioned for dissolution of the marriage, which proceeding was later
consolidated with the pending DVPA proceeding on January 7, 2010.
Each time the consolidated matter was thereafter continued, the court
reissued the temporary restraining order.
On
December 2, 2010, January
26, 2011, and March
2, 2011, a bench trial was held to resolve both the dissolution of
the parties’ marriage, custody and visitation issues, and Shannon’s
request for a DVPA restraining order.
Both parties were present and represented by counsel. The court heard testimony from several
witnesses, including Shannon and Matthew.
several exhibits submitted by the parties.
After
the trial, the court issued a “decision” resolving the marital dissolution
proceeding and Shannon’s request for a DVPA restraining
order.
decision. However, the court proffered
“findings and reasoning” in support of its issuance of the DVPA restraining
order “to assist the parties in their future dealings.” The court found, in pertinent part, that
Shannon had met her burden of proof by a preponderance of the evidence that
Matthew had engaged in abusive behavior of “harassing, telephoning, [and]
disturbing” Shannon, which conduct fell “well within the parameters of” abuse
as defined in section 6203 that could be enjoined pursuant to section 6320.
text messages sent by [Matthew] to [Shannon], inundating
her with a barrage of vulgar, personally demeaning, and derogatory
statements.” “[T]he language used by
[Matthew] was not designed or intended to be factually descriptive, but
demeaning, destructive, and upsetting.
[His] method of communicating with [Shannon]
represented an assault on [her] in every way, but physically.” The communications did not represent
“ ‘brief and peaceful contact as required for court ordered visitation of
children’ ” in compliance with the temporary restraining order, as Matthew
suggested. Instead, the communications
were “gratuitously derogatory, intimidating and controlling. [Matthew] did not intend to co[m]municate
information necessary to the well being of his children. He used the children as an excuse to assault
their mother.”
The
court found credible Shannon’s testimony that Matthew’s
conduct “affected her ability to work, affected her appetite, created stress in
her life, that adversely affected her health.”
The court rejected Matthew’s argument that Shannon
did not fear he would physically harm her as being inconsistent with the facts,
and “not the test which the court must apply.
To be factually sufficient under the [DVPA] the applicant must prove by
a preponderance of the evidence that abuse took place as defined by the
act. It does not require an allegation
of physical injury or assault. ‘The plain meaning of the phrase [“]disturbing
the peace[”] in section 6320 may include, as abuse within
the meaning of the DVPA, a former husband’s alleged conduct in destroying the
mental or emotional calm of his former wife by accessing, reading and publicly
disclosing her confidential e-mails.’
the type that could have been reasonably expected to destroy the mental or
emotional calm of [Shannon], especially in light of [his]
refusal to abstain from the objection[able] behavior, even after the issuance
of the [temporary] restraining order.”
The court noted it was “not so concerned that [Matthew] uses profanity
but rather that he uses it to verbally intimidate [Shannon]
and to continue to [harass] her.”
On
April 6, 2011, the court
filed a DVPA restraining order using a Judicial Council form. The order started
on March 2, 2011, and ends
on June 30, 2012 at midnight.
The DVPA form included personal conduct orders prohibiting Matthew from
harassing or disturbing the peace of Shannon, and prohibiting him from
contacting her (either directly or indirectly) by telephone, sending messages
or mail, or e-mail, “[e]xcept for brief and peaceful contact as required for
court-ordered visitation of children unless a criminal protective order says
otherwise.” Matthew was also prohibited
from, among other things, owning, possessing, having, buying or trying to buy,
receiving or trying to receive, or in any other way getting guns, other firearms,
or ammunition. Matthew filed a timely
notice of appeal from the April 6, 2011
order.
DISCUSSION
Restraining Orders and Order Denying Request to Dissolve
24, 2010 Temporary
Restraining Order
Because Matthew’s
notice of appeal seeks review only of the restraining order filed April 6,
2011, he has forfeited review of the October 20, 2009, temporary restraining
order, any of the orders reissuing the temporary restraining order through
October 12, 2010, and the December 2, 2010 order, which denied his request to
dissolve the September 24, 2010, temporary restraining order, which orders were
all appealable. (Code Civ. Proc.,
§ 904.1, subd. (a)(6); see McLellan
v. McLellan (1972) 23 Cal.App.3d 343, 357.)
Concededly, an order can be set aside at any time on the ground that it
is void when “the court lack[s] personal or subject matter jurisdiction or
exceed[s] its jurisdiction in granting relief which the court had no power to
grant.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228,
1239.) However, Matthew’s arguments,
which are premised on errors of “abuse of discretion” and “mistake of law,”
“have been held nonjurisdictional errors for which collateral attack will not
lie.” (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950; see
(1942) 20 Cal.2d 348, 360; City of
445, 449-450.) Also, the temporary
restraining orders have “fulfilled [their] function and been supplanted by” the
restraining order filed April 6, 2011. (City
of Los Angeles v. Superior Court, supra, 196 Cal. at p. 449.) Thus, any purported appeal from those earlier
orders would be moot. (
207, 210.)
2011 Restraining Order
Matthew
raises several challenges to the court’s April
6, 2011, restraining order, none of which warrants reversal.
Matthew
challenges the sufficiency of the evidence supporting the court’s
findings. He argues that (1) the court
relied heavily on, and gave much credence to Shannon’s testimony, even though
it was demonstrated, “beyond any doubt,” that she had “lied under oath, and on
one occasion at least, had attempted to suborn perjury”; (2) the court
“seriously misstated the testimony of two witnesses, and failed to acknowledge
the testimony of several other abundantly credible witnesses, without comment”,
and (3) “none” of the court’s
attributions to testimony are supported in the record. However, in this portion of his opening brief,
Matthew “fail[s] to provide any citations to the record to support any of the
assertions as to what the [witness testimony showed] on this point, as required
by California Rules of Court,” rule 8.204(a)(2)(C).
of Lincoln
1211, 1239.) As an appellant, Matthew
“must do more than assert error and leave it to the appellate court to search
the record and the law books to test his claim.
The appellant must present an adequate argument including citations to
. . . relevant portions of the record.” (Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) We therefore decline to consider these
arguments. (See Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769,
796 [appellate court declines to address those arguments not properly briefed
“with appropriate citation to the location of the challenged evidence in the
record”].)
title="">[13]
We
also reject Matthew’s argument that the trial court misapplied the DVPA. The court was justified in issuing a DVPA
restraining order based solely on its findings that Matthew had inundated
Shannon with annoying and harassing text messages, containing “a barrage” of
statements neither “designed [n]or intended to be factually descriptive,” or
“to communicate information necessary to the well being of his children.” (§ 6320; Pen. Code, § 653m.) Consequently, we need not address Matthew’s
challenge to the court’s finding that his conduct was also “of the type that
could have been reasonably expected to destroy the mental or emotional calm of
[Shannon], especially in light of [his] refusal to abstain from the
objection[able] behavior, even after the issuance of the [temporary]
restraining order.” “ ‘We uphold
judgments if they are correct for any reason, “regardless of the correctness of
the grounds upon which the court reached its conclusion.” [Citation.] . . . [Thus,] [w]e will not reverse for error
unless it appears reasonably probable that, absent the error, the appellant
would have obtained a more favorable result.
[Citations.] Such is not the case
here.” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
Finally,
we reject Matthew’s arguments that the restraining order violates his
constitutional rights.
name="_ftnref15" title="">[15] Initially, we note the record on appeal does
not include Matthew’s written objections in which he allegedly raised these
issues before the trial court. Because
we do not know whether the arguments he presents in his opening and reply
briefs were presented to the trial court, we have no reason to conclude the
court erred in rejecting his constitutional claims. In any event, we see no merit to them.
In
his opening brief Matthew argues the restraining order violates his right to
free speech under the First Amendment
of the United States Constitution.
However, “ ‘the goal of the First Amendment is to protect
expression that engages in some fashion in public dialogue, that is,
“ ‘communication in which the participants seek to persuade, or are
persuaded; communication which is about changing or maintaining beliefs, or
taking or refusing to take action on the basis of one’s beliefs
. . . .’ ”
[Citations.]’ . . . A statute that is otherwise valid, and is
not aimed at protected expression, does not conflict with the First Amendment
simply because the statute can be violated by the use of spoken words or other
expressive activity. [Citation.]” (Aguilar
v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134.) Family Code sections 6203 and 6320,
subdivision (a), allow for the issuance of a DVPA restraining order based on
annoying and harassing telephone calls as described in Penal Code section 635m,
which former version was upheld against a First Amendment challenge that it
prohibited lawful free speech as well as unlawful conduct. (People
v. Hernandez (1991) 231 Cal.App.3d 1376, 1381 [former Penal Code section
635m prohibiting annoying telephone calls does not violate caller’s First
Amendment rights]; see Rowan v. United
States Post Office Dept. (1970) 397 U.S. 728, 737 [statute allowing
homeowner to restrict delivery of offensive mail does not violate mailer’s
First Amendment rights].) Statutes that
purportedly “ ‘restrict or burden the exercise of First Amendment rights
must be narrowly drawn and represent a considered legislative judgment that a
particular mode of expression has to give way to other compelling needs of
society.’ [Citation.] The ‘protection of innocent individuals from
fear, abuse or annoyance at the hands of persons who employ the telephone, not
to communicate, but for other unjustifiable motives,’ is such a compelling
interest. [Citation.]” (People
v. Hernandez, supra, 231 Cal.App.3d at p. 1381.) Matthew has not demonstrated he has a First
Amendment right to send Shannon text messages that are annoying or harassing
despite their purported veracity or accuracy.
Snyder v. Phelps (2011) 562
U.S. ___, 131 S. Ct. 1207, is factually distinguishable, and does not support
Matthew’s argument that the restraining order violates his First Amendment
rights.
Matthew
also argues that his right to bear arms under the Second Amendment of the
United States Constitution is infringed on by the restraining order’s firearm
restriction, required by section 6389,
pursuant to District of Columbia v. Heller
(2008) 554 U.S. 570 (Heller). (See McDonald
v. City of Chicago (2010) 561 U.S. ___ [130 S. Ct. 3020, 3026] [Second
Amendment right recognized in Heller
“is fully applicable to the States”].)
We disagree. “Although it struck
down the District of Columbia handguns ban, Heller
recognized and affirmed certain traditional limitations on the right to bear
arms,” and “identified an expressly nonexclusive
list of ‘presumptively lawful regulatory measures,’ stating ‘nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions [a]nd qualifications on the commercial
sale of arms.’ [Citations].” (People
v. Delacy (2011) 192 Cal.App.4th 1481, 1487-1488; emphasis added (
Penal Code section 12021, subdivision (c)(1), which prohibits possession of
firearms by persons convicted of specified misdemeanors].)
Contrary
to Matthew’s contentions, we conclude
section 6389 “is analogous to a prohibition on felon weapon possession, a type
of restriction expressly listed by Heller
as untouched by its holding.” (
1021 [18 U.S.C. § 922, subdivision (g)(8), which criminalizes possession
of firearms and ammunition by persons subject to a domestic violence
injunction, is a regulation of the type “that pass[es] constitutional muster”
as “traditionally permitted in this nation”].)
Additionally, even under strict scrutiny, the firearm restriction in the
restraining order is sustainable as constitutional. “Reducing domestic violence is a compelling
government interest [citation], and [section 6389]’s temporary prohibition,
while the [restraining] order is outstanding, is narrowly tailored to that
compelling interest. [Citations.]” (United
States v. Knight (D. Me. 2008) 574 F.
Supp. 2d 224, 226, fn. omitted [discussing constitutionality of 18
U.S.C.§ 922, subd. (g)(8)].)
“[A]nger management issues . . . may arise in domestic
settings,” and the firearm restriction “is thus a temporary burden during a
period when the subject of the order is adjudged to pose a particular risk of
further abuse. [Citations.]” (United
States v. Mahin (4th Cir. 2012) 668 F.3d 119, 125 [discussing
constitutionality of 18 U.S.C. § 922, subd. (g)(8)].)
We
also are not persuaded by Matthew’s argument that the firearm restriction is
unconstitutional as applied to his situation.
Contrary to his contention, the trial court did not issue the DVPA
restraining order “solely based on . . . conduct ‘reasonably expected
to destroy the mental and emotional calm of [Shannon].’ ” The court also found that Matthew had
“engaged in repetitive and persistent conduct which any reasonable individual
would characterize as offensive, demeaning, derogatory, and disturbing.” He had also “repeatedly demonstrated an inability
to control his anger over the fallout arising from the demise of his
relationship with” Shannon. Most
notably, the court found it “extremely troubling” that Matthew believed “he was
justified in violating a court order,” by continuing to harass Shannon even
after the issuance of the temporary restraining order. The court’s rendition of Matthew’s conduct
and behavior in its statement of decision demonstrates that issuance of a DVPA
restraining order with the firearm restriction was necessary under the
circumstances. On the facts in this case
we see no reason “to revisit the wisdom of” the Legislature’s decision to
require a firearm restriction on all domestic violence protective orders. (Ritchie,
supra, 115 Cal.App.4th at p. 1299.)
We
conclude that Ritchie, supra, 115
Cal.App.4th 1275, does not require us to remand the matter to the trial court,
as Matthew suggests. In
concerned with weighing the burdens a DVPA restraining order might impose
against the risk of future abuse in the context of a request for renewal of the
order, pursuant to section 6345, and the trial court’s erroneous striking of
the firearm restriction in the renewed order.
(Id. at pp. 1283-1284,
1292.) Unlike Ritchie, we are concerned here with the issuance of an initial
restraining order. The trial court’s
decision demonstrates it considered evidence tendered by both parties, and the
fact that the issuance of a DVPA restraining order would require the court to
also impose a firearm restriction. We
see no basis for reconsideration.
DISPOSITION
The
April 6, 2011 order is affirmed.
Plaintiff Shannon Mitchell is awarded costs on appeal.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] Because the parties share the same surname,
we hereafter refer to them by their first names for clarity and convenience
resolve this appeal.
