Filed 4/9/20 Fontana v. Thomas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

DENISE MICHELLE FONTANA,

Petitioner and Respondent,

v.

RICHARD EDWARD VILLIERS THOMAS,

Respondent and Appellant.

B291033

Los Angeles County
Super. Ct. No. 17PDRO01118

APPEAL from an order of the Superior Court of Los Angeles County, Harvey A. Silberman, Judge. Affirmed.

James H. Cesena and Jason M. Zerehi for Respondent and Appellant.

Merritt McKeon for Petitioner and Respondent.

_________________________

INTRODUCTION

Richard Thomas appeals from a domestic violence restraining order (DVRO) protecting his estranged wife, Denise Fontana. Thomas contends the trial court erred by considering a writing without proper authentication. He also argues the court refused to allow him to cross-examine Fontana, in violation of his right to due process. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

On December 29, 2017, Fontana filed a request for a DVRO against Thomas, seeking protection for herself and the couple’s two-year-old son. In her supporting affidavit, Fontana declared that during her three-year marriage to Thomas she had “witnessed and been a victim” of his “violent behavior,” which could be triggered by “the most insignificant thing,” such as “calling him by his first name” or if he was “intoxicated by alcohol.” She said Thomas “always spoke about how he was in the British Military,” and he threatened to make her “disappear in the desert without anyone ever finding out.” He warned that he had done this “many times in the Army,” and she “lived in fear every second.”

Fontana alleged the “violence kept escalating” throughout the marriage. She claimed Thomas had two rifles and two handguns that were not registered to him, and at times he “would brandish one of his weapons and place[ ] it by the bed while he forced [her] to perform sexual acts.” She said Thomas had forced her to have sex at least five times. And he “always kept the guns [in] plain sight” and threatened to “kill [her] if [she] didn’t do what he asked.”

Fontana also claimed that Thomas had “pushed” her on several occasion when she “tried to calm him down.” She said this last occurred in July 2017, when she had intervened in a verbal altercation Thomas had with a man outside their home. After the altercation, Thomas paced around the house “brandishing a gun while getting intoxicated with alcohol.” Later that month, Fontana took her son and moved from the family’s home in Wildomar to her mother’s home in La Crescenta.

Following their separation, Fontana returned to Wildomar every weekend so Thomas could visit with their son. In December 2017, she found a gun under Thomas’s bed near where the boy slept. She called the police to report the firearm and took their son back to La Crescenta. Following the incident, Thomas sent her a series of “nasty texts,” “harassing” her and threatening to report her for kidnapping if she did not return the boy.

Fontana’s affidavit also referred to a purported arrest Thomas had in England for domestic violence and spousal rape. Her affidavit included a copy of a purported restraining order that Thomas’s ex-wife had obtained against him in Canterbury, England.

Thomas’s responding affidavit confirmed the broad timeline Fontana presented in her petition. He said he was a “decorated combat veteran of the British Armed Forces” and left the service with an honorable discharge. He confirmed Fontana left the family home in mid-July 2017, but claimed her departure was due to “financial difficulties” and Fontana’s decision to accept a job in Los Angeles County. He said they had agreed Fontana would stay with her mother in La Crescenta during the work week and return home to Wildomar on the weekends so they could “be together with [their] son as a family.” He claimed they “attempted to repair” their “failing marriage” until December 2017.

Thomas said the marriage had “failed” in part because “Fontana suffered from severe depression, mood swings, erratic behavior, and bouts of furious anger.” He detailed an incident on Thanksgiving in 2017 when Fontana smashed a wine glass and other dishes in the sink during an angry outburst. He claimed the attempts to repair the marriage ended in December when Fontana took their son from the home in Wildomar “without notice, and sequestered him in [Fontana’s] mother’s home in La Crescenta.”

Thomas denied owning “a firearm,” but confirmed he owned BB guns that he “maintained in an unloaded fashion.” When police searched the family home in response to Fontana’s report, no firearms were found and no criminal charges were filed.

Thomas denied ever threatening Fontana with physical harm, and denied threatening to make her “ ‘disappear in the desert.’ ” He also denied being “ ‘wanted by authorities’ in England” and denied he was ever convicted of domestic violence. He said he never engaged in non-consensual sex with Fontana.

On April 4, 2018, the trial court held a hearing on Fontana’s restraining order request. Counsel represented Thomas, while Fontana appeared without counsel. The court examined the parties regarding the contents of their affidavits.

The court found that “many of the allegations put forth by [Fontana] were unsubstantiated.” For example, in questioning Fontana and Thomas about the purported restraining order in England, the court observed the document appeared to have been obtained “without notice” much like “temporary restraining orders here,” and absent testimony from an expert on English law, the court could not grant it any significance beyond the bare showing “there were allegations made.” The court also questioned Fontana regarding the “alleged assaults” described in her affidavit. Under the court’s examination, Fontana confirmed that she had never reported any of the physical assaults to police, even though she had made a police report about a gun in the house within her son’s reach. As for the gun, the court appeared to credit Thomas’s explanation that he owned only BB guns and that police found no firearms in the home.

The court also rejected Fontana’s claim that the couple’s son needed protection from Thomas. While questioning Fontana about the “years of abuse” she alleged, the court observed that despite those charges, she had allowed the child to spend weekends with his father and the child had not “been hurt in any way, shape, or form.” Based on Fontana’s admissions, the court denied the DVRO request on behalf of the boy.

The court nevertheless granted Fontana a one-year restraining order (significantly reducing the authorized five-year duration) based on the “totality of the facts.” In particular, the court found Thomas’s admission that he had “self-identif[ied]” as “a danger to [his] wife” was sufficient to warrant a short-term DVRO.

At the hearing, Fontana presented what she described as a “restraining order” Thomas sought against her “in October.” After reviewing the document and directing Fontana to show it to Thomas and his counsel, the court asked Thomas if he “remember[ed] making this statement.” Thomas affirmed, “I do.” When asked if he had taken anger management classes, Thomas said he had not and he did not have anger issues, explaining he was very “upset at the time” he “went to get a restraining order,” because he had recently received intimate pictures of Fontana from another man. He said he had “no interest in violence” and thus decided to “remov[e] [him]self” from Fontana’s presence so that no violence would occur. The court acknowledged Thomas’s explanation, but stated it could not ignore Thomas “self-identifying that [his] anger can [rise] to the level where [he] believe[d] [he was] a danger to [his] wife.” Thomas replied, “Yep.” His counsel asserted no further objection to the evidence. Instead, counsel argued the nature of the alleged pictures would “tick off any man” and Thomas was “extremely wise” to “recognize it.”

Notwithstanding the “lack of evidence” for several of Fontana’s allegations, the court stated it was “persuaded by [Thomas’s] own statements.” After hearing argument from Thomas’s counsel that a restraining order would jeopardize Thomas’s ability to obtain a commercial pilot’s license, and giving the parties an opportunity to stipulate to an order without judicial findings or admissions, the court issued its ruling granting Fontana a one-year DVRO against Thomas. Thomas filed a timely appeal.

DISCUSSION

Section 6300, subdivision (a) authorizes the trial court to issue an order “to restrain any person for the purpose specified in Section 6220, if an affidavit or testimony and any additional information provided to the court . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” Section 6220 states the purpose of the relevant Family Code division “is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” The court may issue an order under section 6300 “based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a).)

We review an order granting a DVRO for abuse of discretion. (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424.) “In considering the evidence supporting such an order, ‘the reviewing court must apply the “substantial evidence standard of review,” meaning “ ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the trial court’s finding. [Citation.] ‘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.]’ ” (Ibid.)

Thomas contends the court prejudicially erred by reviewing the restraining order petition he purportedly filed against Fontana without “preliminary facts authenticating the writing.” He also argues the court improperly denied him an opportunity to cross-examine Fontana in violation of the Sixth Amendment’s confrontation clause. Neither contention has merit.

Evidence Code section 1401 requires authentication of a writing before the writing or secondary evidence of its content may be received into evidence. Nothing in the Evidence Code purports to “limit the means by which a writing may be authenticated or proved.” (Evid. Code, § 1410.) Typically, however, the proponent of a writing must produce evidence that demonstrates its authenticity—i.e., that “the document is what it purports to be.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) “[C]onflicting inferences [concerning authenticity go] to the document’s weight as evidence, not its admissibility.” (Ibid.)

Thomas argues the court erred by reviewing his purported restraining order petition before receiving evidence of its authenticity; however, he does not dispute that the document was what it purported to be. Nor could he. The record unambiguously shows Thomas confirmed he made the statement set forth in the document, and, after he acknowledged the statement, his counsel raised no further objection to the writing’s authenticity. In any event, the record also shows it was not the document itself that persuaded the court to find a risk of abuse. Rather, it was Thomas’s admissions that he had “self-identif[ied]” as “a danger to [his] wife,” and that he needed to “remov[e] [him]self” from Fontana’s presence to ensure there would be no violence, that compelled the court to issue the DVRO. Thomas has not demonstrated error, let alone prejudice affecting the judgment. (Cf. Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 785 [admission of text messages into evidence was unnecessary because restrained party “testified to the contents of the text messages and thus the messages themselves would have been cumulative”].)

Thomas likewise fails to demonstrate prejudicial error with respect to the court’s purported refusal to permit cross-examination. Contrary to Thomas’s premise, the Sixth Amendment’s confrontation clause applies in criminal proceedings only. (People v. Sweeney (2009) 175 Cal.App.4th 210, 221, citing Crawford v. Washington (2004) 541 U.S. 36, 42.) A non-jury hearing to adjudicate a DVRO request under the Family Code is not analogous to a criminal proceeding and it does not implicate the right to confrontation. (See Sweeney, at p. 221, citing Cramer v. Tyars (1979) 23 Cal.3d 131, 137.) Rather, the right to cross-examination in a DVRO proceeding, like other civil proceedings, is governed by the due process clause. (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1568, citing People v. Otto (2001) 26 Cal.4th 200, 214 & In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) And, unless a due process objection is asserted in the trial court, it may be deemed forfeited as a basis for reversal on appeal. (See, e.g., In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1450–1451.)

Thomas did not ask to question Fontana at the hearing, nor did he object that he had been denied an opportunity to cross-examine her when the trial court announced its ruling. This is not surprising. The record shows the court did an able job, in a non-jury proceeding where it sat as the fact-finder, examining Fontana and exposing the lack of evidentiary support for several of her allegations. The court’s questioning thus accomplished cross-examination’s vital purpose—“ ‘to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses.’ ” (Ogden Entertainment Services v. Workers’ Comp. Appeals Bd. (2014) 233 Cal.App.4th 970, 983, quoting Berger v. California (1969) 393 U.S. 314, 315.) Given that the court largely rejected or discounted Fontana’s testimony, and that it focused instead on Thomas’s admission that he had “self-identif[ied]” as “a danger to [his] wife,” it is no wonder that Thomas did not insist on an opportunity to cross-examine Fontana at the hearing.

Thomas asserts he “attempted to preserve objections and slow the court down enough to allow for a meaningful examination of [Fontana], but the Court pre-empted [his] objections with a blanket assertion that it was ruling on the evidence presented.” The record contradicts his claim. The record shows the court, after beginning to announce its ruling, allowed Thomas’s counsel to make his purported “objections,” which focused exclusively on a concern that Thomas would have difficulty obtaining a commercial pilot’s license if he had a DVRO against him. The court acknowledged the concern and suggested the parties could stipulate that there would be “no judicial finding and no admissions.” Fontana rejected that suggestion, and Thomas’s counsel made no other request, except to confirm that the ruling was based upon Thomas’s statement. We find no error in the court’s management of the witness examinations, and we find no violation of Thomas’s right to due process.

DISPOSITION

The order is affirmed. Petitioner Denise Fontana is entitled to her costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J. DHANIDINA, J.