Verde v. Hernandez CA2/7 ( 2021 )

Filed 6/17/21 Verde v. Hernandez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
LISSY BERRIOS VERDE, B306724
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 20CMRO00344)
RICARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Los Angeles County Superior
Court, Armando Duron, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Ricardo Hernandez, in pro. per., for Appellant.
No appearance for Plaintiff and Respondent.
_______________________
Ricardo Hernandez appeals from a domestic violence
restraining order (DVRO) issued in favor of his daughter’s
mother, Lissy Berrios Verde. Hernandez contends the trial court
abused its discretion in issuing the DVRO because the court
relied on Verde’s false testimony that he had sent threatening
text messages to her. Because the trial court did not abuse its
discretion in issuing the DVRO under Family Code sections 6203
and 6320,1 we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Verde’s Request for a DVRO
On March 2, 2020 Verde filed a request for a DVRO against
Hernandez in which she stated Hernandez sent threatening
messages to her.2 Verde explained, “I fear for my life. Ricardo
Hernandez has sent me text messages with threats[;] at this
moment I am very scared, I [have] been very mentally
damage[d].” Verde requested protection for her and her 13-year-
old son Jooslan because Hernandez stated in his text messages
that “he was going to send someone to beat [Jooslan] up at
school.” Verde also requested the court modify a current custody
order to provide sole legal and physical custody over her and
1 All further statutory references are to the Family Code
unless otherwise indicated.
2 On our own motion we augment the record to include
Verde’s March 2, 2020 request for domestic violence restraining
order, request for child custody and visitation orders, notice of
court hearing, and temporary restraining order; the February 21,
2017 criminal protective order—domestic violence; and
Hernandez’s May 1, 2020 response to request for domestic
violence restraining order. (Cal. Rules of Court,
rule 8.155(a)(1)(A).)
2
Hernandez’s six-year-old daughter Dana “for [her] daughter[’s]
safety.”
Verde declared that on December 19, 2016 Hernandez
pushed her against the wall and hit her chest with his head. She
suffered redness in her chest and shoulder. Verde also lodged a
copy of a three-year criminal domestic violence restraining order
issued against Hernandez on February 21, 2017, which protected
Verde and Dana.
The court issued a temporary restraining order on March 2,
2020, protecting Verde, Jooslan, and Dana. The court set a
hearing on a permanent restraining order for March 24, 2020,
which was later continued until June 30.
On May 1, 2020 Hernandez filed a response in which he
declared that Verde “has issues with [him] and wants to ruin
[his] life by making false accusations to the authorities.” He
claimed it was Verde who was “the one calling or texting me
[with] threatening messages or demanding I do what she wants
or I can’t see Dana anymore.” He asserted he was a loving father
to Dana and a father figure to Jooslan. He objected to issuance of
a restraining order keeping him from Dana, stating Dana was
safe with him.
B. The Hearing and Issuance of the DVRO
On June 30, 2020 the trial court held a hearing on Verde’s
request for a DVRO at which both Verde and Hernandez
testified. Verde and Hernandez affirmed the statements they
made under penalty of perjury in their request and response,
respectively, were true and correct. The court then asked both
parties whether there was anything else they wanted to add.
3
Verde testified that Hernandez “has continued bothering
me.” She explained that Hernandez had “sent messages to [her]
through different numbers” telling her he was going to call the
social workers to report that Verde was living in a house of
prostitution, selling drugs, and abusing the children. At the time
there was a juvenile court custody order in place. Verde showed
the court a photograph of a key to her car, stating that
Hernandez had stolen the key from her. Verde responded by
calling the police. Verde also asserted that Hernandez broke her
car window on May 12, 2020 at 2:20 in the morning.3
Verde provided the court with copies of the text messages
she stated Hernandez sent her. An August 19, 2019 message
stated, “You’ll see, bitch. You’re going to pay for it. Your mouth
will be torn. You will be left without teeth, and it will go badly
for your son, as well.” Verde testified, “I’m just concerned for my
daughter and my son, too.”
Hernandez testified he did not send the text messages to
Verde, and the cell phone number from which the messages were
sent did not belong to him. Hernandez denied that he had taken
Verde’s car key. Hernandez asserted he had over 1,000 pages of
text messages sent between his and Verde’s phones that showed
“civil conversations” between the two of them with only
“disagreements.” The court asked whether Hernandez wanted to
present the messages to the court, to which Hernandez
responded, “If you need to see them.” The court stated, “I don’t
need to see anything. It’s up to you whether or not you want to
present something to me.” Hernandez responded, “I mean, no.”
3 Verde testified “a white van broke my car’s window” as an
example of how Hernandez continued to “bother[]” her.
4
The court then inquired of Verde whether the text
messages were from Hernandez’s phone, to which she responded,
“They’re apps. He’s used to doing things that are related to
crime. He thinks he’s going to be able to lie to the law.”
The trial court found that Verde met her burden by a
preponderance of the evidence, and on that basis issued a five-
year DVRO. The court explained it “found [Verde] credible with
respect to the allegations and what [the court] read in those text
messages.” Hernandez interjected, “They’re not mine.” The court
responded, “Well, I’m sorry to say, I found her credible. Okay?
You didn’t present any evidence to the contrary.”
The DVRO prohibited Hernandez from harassing or
contacting Verde, Jooslan, and Dana and required Hernandez to
stay at least 100 yards away from Verde’s home, workplace, and
vehicle, as well as the children’s school and child care. The court
also entered a child custody and visitation order granting Verde
sole legal and physical custody of Dana with monitored visitation
for Hernandez for three hours on the first, third, and fifth
Saturdays of the month. Hernandez objected to the change from
joint to sole legal custody and the requirement that he only have
monitored visitation.
Hernandez timely appealed.
DISCUSSION
A. Standard of Review
“We review the grant or denial of a request for a DVRO for
abuse of discretion.” (In re Marriage of Davila and Mejia (2018)
29 Cal.App.5th 220, 226 (Davila); accord, Herriott v. Herriott
(2019) 33 Cal.App.5th 212, 223 (Herriott); In re Marriage of G.
5
(2017) 11 Cal.App.5th 773, 780.) “‘“The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds
of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.”’” (In re
Marriage of G., at p. 780; accord, Herriott, at p. 223 [“‘“A trial
court’s exercise of discretion will not be disturbed on appeal
unless, as a matter of law, an abuse of discretion is shown—i.e.,—
where, considering all the relevant circumstances, the court has
‘exceeded the bounds of reason’ or it can ‘fairly be said’ that no
judge would reasonably make the same order under the same
circumstances.”’”]; Denham v. Superior Court (1970) 2 Cal.3d 557,
566 [“‘[U]nless a clear case of abuse is shown and unless there
has been a miscarriage of justice a reviewing court will not
substitute its opinion and thereby divest the trial court of its
discretionary power.’”].)
“‘“To the extent that we are called upon to review the trial
court’s factual findings, we apply a substantial evidence standard
of review.”’” (Davila, supra, 29 Cal.App.5th at p. 226; accord,
Herriott, supra, 33 Cal.App.5th at p. 223; In re Marriage of
Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424
(Evilsizor).) “‘“‘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.’”’” (Evilsizor, at
p. 1424; accord, Herriott, at p. 223.) We defer to the trial court’s
evaluation of credibility. (Herriott, at p. 223 [“It was for the trial
court to weigh the evidence and consider the demeanor and
credibility of the witness, as ‘credibility issues [are] routinely
resolved by [the] trier[] of fact.’”]; Evilsizor, at p. 1426 [“the trial
6
court was in the best position to evaluate credibility and to
resolve factual disputes”].)
B. The Domestic Violence Prevention Act
The Domestic Violence Prevention Act (DVPA; § 6200 et
seq.) allows a trial court to issue a protective order “‘“to restrain
any person for the purpose of preventing a recurrence of domestic
violence and ensuring a period of separation of the persons
involved” upon “reasonable proof of a past act or acts of abuse.”’”
(Davila, supra, 29 Cal.App.5th at p. 225; accord, Nevarez v.
Tonna (2014) 227 Cal.App.4th 774, 782; see § 6300, subd. (a)
[restraining order may be issued upon showing of “reasonable
proof of a past act or acts of abuse”].) The DVPA defines domestic
violence to include “abuse perpetrated against . . . [¶] . . . [a]
person with whom the respondent has had a child . . . .” (§ 6211,
subd. (d).) “Abuse includes ‘plac[ing] a person in reasonable
apprehension of imminent serious bodily injury to that person or
to another’ or ‘engag[ing] in any behavior that has been or could
be enjoined pursuant to Section 6320.’ (§ 6203, subd. (a)(3), (4).).”
(Davila, supra, 29 Cal.App.5th at p. 226.)
Section 6320, subdivision (a), includes as conduct that may
be enjoined, “molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, . . . harassing,
telephoning, including, but not limited to, making annoying
telephone calls as described in Section 653m of the Penal Code,
destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified
distance of, or disturbing the peace of the other party . . . .” (See
Hogue v. Hogue (2017) 16 Cal.App.5th 833, 839 [“The act of
purposefully sending a video of a mock suicide to plaintiff in
7
California . . . is indisputably conduct that would disturb
plaintiff’s peace of mind within the meaning of the act and be the
basis for granting a restraining order”]; Perez v. Torres-
Hernandez (2016) 1 Cal.App.5th 389, 398 [“‘[P]rotective orders
can be issued because of persistent unwanted phone calls or
letters—which fall into the same category as “molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, [or] harassing” the protected party.’”]; Burquet v.
Brumbaugh (2014) 223 Cal.App.4th 1140, 1144 [ex-boyfriend’s
continued contact with plaintiff by phone, email, text, and
unannounced visit to her home to beseech her to renew their
relationship constituted abuse under the DVPA].)
C. The Trial Court Did Not Abuse Its Discretion in Issuing the
DVRO
Hernandez contends substantial evidence does not support
issuance of the DVRO because the text messages introduced at
the hearing were not “properly validated,” and there was no
showing that the text messages came from Hernandez. However,
Verde testified the messages were sent from Hernandez’s phone.
Although Hernandez denied that he sent the text messages, the
court found Verde credible and noted that Hernandez failed to
present any evidence to rebut Verde’s showing. The court invited
Hernandez to submit evidence of the thousands of pages of “civil”
text messages Hernandez claimed were sent between his and
Verde’s cell phones, but Hernandez declined to do so. Under
section 6300, subdivision (a), “[t]he court may issue an
order . . . based solely on the affidavit or testimony of the person
requesting the restraining order.” Further, “[e]vidence of even
one credible witness ‘is sufficient for proof of any fact.’” (Sav-On
8
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334;
accord, In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [“‘The
testimony of a witness, even the party himself [or herself], may
be sufficient.’”]; see Evid. Code, § 411 [“Except where additional
evidence is required by statute, the direct evidence of one witness
who is entitled to full credit is sufficient for proof of any fact.”].)
We defer to the trial court’s credibility findings. (Herriott, supra,
33 Cal.App.5th at p. 223; Evilsizor, supra, 237 Cal.App.4th at
p. 1426; see In re Marriage of Fregoso & Hernandez (2016)
5 Cal.App.5th 698, 703.)
The trial court did not abuse its discretion in issuing the
DVRO based on the substantial evidence of Hernandez’s prior
abuse, including his physical abuse in 2016, his threat to beat up
Verde’s 13-year-old son Jooslan, and his August 19, 2019 threat
in which he stated Verde would “pay for it,” her “mouth will be
torn,” she would “be left without teeth,” and “it will go badly for
[her] son.” Verde also testified that Hernandez had sent multiple
messages to her stating he planned to tell the social workers
(presumably in the juvenile dependency proceeding) that Verde
was living in a house of prostitution, selling drugs, and abusing
her children. Further, Verde testified Hernandez stole the key to
her car.4 Verde testified Hernandez’s conduct was continuing (he
“has continued [to] bother[] me”), and she feared for her life,
feared for her children’s safety, was “very scared,” and was “very
mentally damage[d].” By presenting this evidence, Verde met her
burden by a preponderance of the evidence to show Hernandez
4 Hernandez argues the court failed to require Verde to
“validate” that he had taken her car key by showing the key to
the court to match the photograph, but the court relied on Verde’s
testimony, which it found credible.
9
engaged in conduct that was threatening, harassing, and
disturbed Verde’s peace of mind. (§§ 6203, subd. (a)(4), 6320,
subd. (a); see Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at
p. 398; Burquet v. Brumbaugh, supra, 223 Cal.App.4th at
p. 1144.)
DISPOSITION
The order is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
10