Filed 10/9/20 Morin v. Barrios CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LOUIS GEORGE MORIN, III,

Petitioner and Appellant,

v.

JOSEPH BARRIOS,

Defendant and Respondent.

B300647

(Los Angeles County Super. Ct. No. 19IWRO00491)

LOUIS GEORGE MORIN, III,

Petitioner and Appellant,

v.

GINA THOMPSON BARRIOS.,

Defendant and Respondent.

B300648

(Los Angeles County Super. Ct. No. 19IWRO00492)

APPEAL from orders of the Superior Court of Los Angeles County, Patricia J. Titus, Judge. Affirmed.

Law Office of Luis N. Valdivia for Petitioner and Appellant.

Richard P. Lasting for Defendant and Respondent Joseph Barrios; Amy E. Jacks for Defendant and Respondent Gina Thompson Barrios.

 

INTRODUCTION

Petitioner and appellant Louis George Morin, III had a verbal argument with defendant and respondent Gina Thompson Barrios while attending a homeowners’ association meeting. Mrs. Barrios immediately left the meeting, went to a nearby parking lot, and called her husband (defendant and respondent Joseph Barrios) to meet her there. After leaving the meeting, Morin encountered Mr. and Mrs. Barrios, and brandished a gun and his Sheriff’s Department badge. Two and a half weeks later, Morin sought civil harassment restraining orders against Mr. and Mrs. Barrios. The court refused to issue the orders.

Morin contends the court erred by (1) depriving him of his due process right to cross-examine Mrs. Barrios; (2) denying his request for a continuance; and (3) permitting Mr. Barrios to exercise his Fifth Amendment right to remain silent. We reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Morin and Mr. and Mrs. Barrios lived in a condominium complex in Playa Del Rey, California. Their units were located in separate buildings. They had not seen or talked to each other prior to the incident giving rise to Morin’s petitions for restraining orders.

1. Petitions and Initial Hearing
2.
On April 26, 2019, Morin filed petitions under Code of Civil Procedure section 527.6 seeking restraining orders against Mr. and Mrs. Barrios, respectively. The initial hearing on the petitions was held on May 20, 2019. Morin, appearing in pro per, testified Mr. and Mrs. Barrios were waiting outside the homeowners’ meeting for him with a baseball bat, swinging it in his direction. He further testified they “ultimately backed off when I drew my Sheriff’s Department badge and gun and displayed it to them.” After Morin testified briefly, Mr. Barrios requested a continuance to obtain counsel. The court granted the request , and set the hearing on both petitions for July 11, 2019.

3. July 11, 2019 Hearing
4.

Mrs. Barrios’s testimony

On April 9, 2019, Morin and Mrs. Barrios attended a homeowners’ meeting. The meeting was held in the complex’s clubhouse and attendees spilled out into the hallway. Mrs. Barrios was inside the clubhouse, recording the meeting for another resident who was out of town. When she lost her internet connection, Mrs. Barrios left the meeting to seek help from another resident in the hallway. There, Morin told Mrs. Barrios to “shut, expletive, up.” Mrs. Barrios was upset, took a photo of Morin’s face, and immediately left the clubhouse.

Mrs. Barrios went back to her condominium unit to take her two dogs for a walk. She then walked to the guest parking lot with her dogs to get a bat from her car that she carried on walks in case she encountered a coyote. While playing with the dogs in the parking lot (using the bat to hit a ball around the parking area), she called Mr. Barrios to tell him about the encounter with Morin, and asked that he come home. Mr. Barrios met his wife in the parking lot, and as they were talking, Morin walked out of the clubhouse down a pathway towards his condo. The pathway was visible from the parking lot and separated by a fence and a gate. Mrs. Barrios saw Morin, pointed him out to her husband, and yelled, “That is the guy!”

Morin walked through the guest parking lot gate and pointed a gun at her. Mr. Barrios yelled “He’s got a gun!” After putting the gun away, Morin took several photos of Mr. and Mrs. Barrios and their car. Mrs. Barrios yelled to the other residents leaving the meeting that Morin had just pulled a gun on them and to call 911. Mrs. Barrios went to her car to get her cell phone to call 911, but was placed on hold. She went back to her condo to call 911 from her landline. After hearing sirens, however, she left her condo to meet the responding law enforcement officers.

Morin’s testimony

Morin testified he asked Mrs. Barrios to keep her voice down at the homeowners’ meeting. About 30 minutes later, he left the meeting and saw Mr. and Mrs. Barrios in the guest parking lot. The lot was separated from him by a fence and gate. While on the other side of the fence, Mrs. Barrios was threatening him with a baseball bat. At that point, he took his gun out of his shoulder holster. After he put the gun away, he “[held] the gate open” to take pictures of Mrs. Barrios “holding a baseball bat and gesturing at [him] and threatening [him].”

Trial Court’s Ruling

The trial court held Morin had not “met his burden” and, under the totality of the circumstances, “a restraining order [was] [not] warranted.” The court explained: “[I]n your passing by, [Mrs. Barrios] says that she was talking to her husband and said, ‘There he is.’ If you would have kept going, we wouldn’t even be here. You didn’t stop [sic]. You caused the interaction at that point. She is on the other side of the fence. There is no reason to have any further interaction. [¶] So even still, at the complex you lived there 6 months; they lived there 11 years. You said you’ve seen them 4 times. It’s a big complex. Your mailboxes, your parking structures, your residences are on different sides of the premises. There is no reason to think that a restraining order is necessary or warranted. [¶] . . . [¶] Even with the hostile action at this meeting, you could have just kept walking away to your place. They didn’t run after you on the other side of the fence. You didn’t run or walk away. You even testified that you held the door open to keep interacting with him. If you had gone on your way, we wouldn’t even be here.”

Morin filed two notices of appeal from the orders denying his separate petitions for restraining orders against Mr. and Mrs. Barrios. On our own motion, we consolidated the appeals.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion In Limiting Morin’s Cross-Examination of Mrs. Barrios

Morin contends he was deprived of due process because the trial court did not give him an opportunity to cross-examine Mrs. Barrios. The record is to the contrary.

The trial judge explained it is her practice (in civil harassment restraining order cases) to prohibit an unrepresented party from directly questioning the other party. She did, however, give Morin the opportunity to question Mrs. Barrios through the court: “If you have some questions you want the court to inquire, I would be willing to do that. But as a party you cannot directly question the other party.” This method of examination was within the court’s discretion. (See Evid. Code, § 765 [“The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.”]; see also People v. Cox (1991) 53 Cal.3d 618, 700, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [“A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice. [Citations.]”].)

Following this procedure, Morin requested the court question Mrs. Barrios regarding (1) alleged previous arrests for domestic violence; (2) what Mrs. Barrios was doing in the parking lot and how long she was there prior to Morin’s arrival; and (3) clarification “that Mr. Barrios immediately fled the scene after the incident and refused to speak to police[.]”

The court asked Mrs. Barrios to testify about what she was doing in the parking lot and how long she was there, stating “I believe you mentioned that on direct, but you can restate why you were in the parking lot.” Mrs. Barrios testified she was waiting for her husband to come get her after she called him, and was there approximately 15 to 20 minutes. The court declined, however, to inquire about alleged previous arrests, and whether Mr. Barrios refused to speak to police, finding those questions irrelevant. The court’s relevancy ruling did not abridge Morin’s due process rights. (§ 527.6, subd. (i) [At a hearing on a petition for a civil restraining order under section 527.6, “the judge shall receive any testimony that is relevant, and may make an independent inquiry.” (Emphasis added)]; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147 [“The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]”].)

Accordingly, the court questioned Mrs. Barrios on the only relevant topic Morin requested. Thus, the court, in a non-jury proceeding where it sat as the fact-finder, gave Morin the opportunity to accomplish cross-examination’s fundamental purpose—“to assist the trier of fact in determining the weight to be given to testimony elicited on direct examination.” (Payette v. Sterle (1962) 202 Cal.App.2d 372, 375.)

B. The Trial Court Did Not Abuse Its Discretion In Denying Morin’s Request for a Continuance

Alternatively, Morin argues the court abused its discretion in denying his request for a continuance. We disagree. In civil harassment proceedings, “[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause.” (§ 527.6, subd. (p)(1).) “Trial courts generally have broad discretion in deciding whether to grant a request for continuance. [Citation.]” (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.)

At the July 11 hearing, Morin requested a continuance to obtain counsel after he was directed to cross-examine Mrs. Barrios through the court. Counsel for Mr. and Mrs. Barrios objected. Counsel for Mrs. Barrios stated “[t]his is actually the second time we’ve been here. This proceeding has been pending for quite some time. [¶] And Mr. Morin is an attorney. . . . I don’t think he has shown any good cause why a continuance is needed.” Counsel for Mr. Barrios added “the cost of counsel for Mr. Barrios and M[r]s. Barrios goes up because of this. Mr. Morin should have been aware of the situation if he wanted an attorney. He has had ample time to get one. [¶] This case has been continued once before. And I know that both Ms. Jacks [counsel for Mrs. Barrios] and I have upcoming schedules that make it difficult to continue this.”

Due to the earlier continuance, the hearing date of July 11 was already well beyond the 25-day limit imposed by statute. (§ 527.6, subd. (g) [“Within 21 days, or, if good cause appears to the court, 25 days from the date that a petition for a temporary order is granted or denied, a hearing shall be held on the petition.”].) Thus, we conclude the court’s denial of Morin’s request for a mid-hearing continuance to obtain counsel (for the sole purpose of cross-examining Mrs. Barrios) was a proper exercise of the court’s broad discretion.

C. Mr. Barrios Timely Invoked his Fifth Amendment Right to Remain Silent

Finally, Morin contends the court erred in allowing Mr. Barrios to assert his Fifth Amendment right to remain silent because he waived that privilege at the beginning of the July 11 hearing. The record demonstrates, however, that Mr. Barrios’s counsel waived the “admonition of the right to remain silent,” but not Mr. Barrios’s right to assert the privilege.

Before hearing testimony on July 11, the court informed Mr. Barrios’s counsel that it did not have a chance to advise Mr. Barrios of his Fifth Amendment right. The court then asked Mr. Barrios’s counsel: “So are you waiving admonition of the right to remain silent?” Mr. Barrios’s counsel responded: “Yes.”

Mr. Barrios did not testify on his own behalf. Morin called Mr. Barrios as a rebuttal witness, however. In response to Morin’s first question, Mr. Barrios asserted his Fifth Amendment privilege. Because that was the first time Mr. Barrios could have—and did—assert the privilege, we conclude no waiver occurred.

 

DISPOSITION

The orders are affirmed. Mr. and Mrs. Barrios shall recover their attorneys’ fees and costs on appeal in an amount to be determined by the trial court. (§ 527.6, subd. (s).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.