San Diego Police Department v. Geoffrey S. ( 2022 )

Filed 12/16/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO POLICE DEPARTMENT, D077999
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2020-
00014589-CU-PT-CTL)
GEOFFREY S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Judy S. Bae, Judge. Affirmed.
Geoffrey S., in pro. per., for Defendant and Appellant.
Mara W. Elliott, City Attorney, John C. Hemmerling, Assistant City
Attorney, and Nicole R. Crosby, Deputy City Attorney for Plaintiff and
Respondent.
In Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550(Kaiser), we held that hearsay evidence is admissible at a hearing on a
workplace violence restraining order (WVRO). (Code Civ. Proc., § 527.8.)
Other courts have reached the same conclusion for a hearing on a civil
harassment restraining order (CHRO). (Code Civ. Proc., § 527.6; see
Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728–729 (Duronslet); Yost v.
Forestiere (2020) 51 Cal.App.5th 509, 521 (Yost).)
We must now decide the same question for a hearing on a gun violence
1
restraining order (GVRO) under Penal Code section 18175. We hold that
hearsay evidence is likewise admissible at a GVRO hearing. We further
conclude that the evidence submitted to the trial court was sufficient to
establish by clear and convincing evidence that appellant Geoffrey S. posed a
significant danger of causing personal injury by gun violence.2 (§ 18175,
subd. (b)(1).) Because we reject Geoffrey’s other claims, we affirm the one-
year GVRO issued against him.
FACTUAL AND PROCEDURAL BACKGROUND
A. GVRO Petition and Attachments
On April 22, 2020, the San Diego Police Department (Department) filed
a GVRO petition against Geoffrey with an attached declaration and four
redacted police reports. The attached declaration of Detective Justin Garlow
stated: “Based on the content of the attached reports, I hold the opinion that
a GVRO is necessary to protect the public and prevent harm to the
respondent or others. There are no less restrictive means to ensure public
safety.”
The redacted police reports described several police contacts with
Geoffrey between April 13 and 17 of 2020. On April 13, an “anonymous
clinical psychologist” requested a welfare check on Geoffrey “due to him
having ‘been posting angrily on Facebook about buying ammo and to “protect”
1
Undesignated statutory references are to the Penal Code.
2
Geoffrey’s first name and last initial are used in this opinion in
accordance with California Rules of Court, rule 8.90(b)(3) and (b)(11).
2
himself.’ ” The police contacted Geoffrey and “determined he did not meet
criteria at the time, but notated [sic] he ‘has very eccentric beliefs about the
government and was dillusional [sic] and very paranoid.’ ”
Just before midnight on April 14 or 15, police responded to a
disturbance call at Geoffrey’s residence. They heard people arguing inside
the house. When they knocked on the door, someone inside said, “ ‘Go
away!’ ” The argument continued, then Geoffrey ran out the back door and
reported to the police that someone inside had just threatened to kill him.
Geoffrey explained to the police that for several weeks, he had been
posting on social media about his belief that philanthropist Bill Gates had
murdered millions of people. In response, a stranger called him to express
his agreement. When Geoffrey asked the person how he got his phone
number, the person said it was given to him by God. As a religious person,
Geoffrey then invited the person over to his house to talk about their beliefs.
The person came over and spent the night. The next day, they talked all day
and read Bible verses. The man eventually proclaimed that he was God, got
a kitchen knife, and demanded that Geoffrey “ ‘kneel before him.’ ” After
Geoffrey complied, the man said, “ ‘I am going to kill you motherfucker.’ ”
The man also told Geoffrey he was a “ ‘west coast gangster’ ” and had “been
shot and stabbed before.”
Geoffrey told the police he had “ ‘hunting shotguns’ ” inside his house,
but no ammunition. He began talking about his “conspiracy theories” and
“distrust of the government.” He explained “his eccentric beliefs about how
he didn’t believe the Corona virus was real, how Bill Gates is a murderer and
he is trying to vaccinate everyone with ‘nanotechnology’ so they can be
tracked by 5G towers” and “claimed he even called the FBI San Diego field
office to report what he knew about Bill Gates . . . .”
3
The police confirmed that the other man was still inside Geoffrey’s
house and his car was parked in the driveway. The man refused to come out
of the house. The police decided to leave without entering or trying to take
the man into custody. Geoffrey became “upset and unreasonable” and called
them “ ‘cowards.’ ”
On the afternoon of April 17, four officers and a clinician with the
Psychiatric Emergency Response Team (PERT) were dispatched to Geoffrey’s
house in response to more calls about him “posting bizarre threatening
statements on social media and attempting to purchase firearm
ammunition.” Before arriving at Geoffrey’s house, the police tried to contact
the reporting parties and also reviewed his Facebook posts. The names of the
reporting parties were redacted from the police reports attached to the GVRO
petition.
The first reporting party was anonymous and did not answer his phone.
This anonymous person had reported that Geoffrey said, “ ‘I guess I’m just
going to have to take things into my own hands.’ ”
The police were able to contact the second reporting party. This person
“expressed a strong concern for Geoffrey’s mental health” and said, “Geoffrey
has reported signs of anxiety and paranoia for some time but has refused to
seek treatment.” According to this person, “Geoffrey’s anxiety, delusional
thoughts and paranoia ha[ve] rapidly escalated, putting him in a panic state.”
Geoffrey had expressed to this person “a strong need to defend himself with
his firearms against a government takeover.” Earlier that morning, Geoffrey
had called “in rage, ranting about Walmart refusing to sell him firearm
ammunition due to him coming up in their system as ‘denied.’ ” Geoffrey
stated it was part of the “ ‘government[’]s plan.’ ” He told this person,
“ ‘People are going to try and get me and I need to defend myself.’ ” Geoffrey
4
said he had asked his father to fly to California from Ohio to purchase
ammunition for him, but his father declined.
The police discovered that Geoffrey had posted on Facebook multiple
times per day over the previous month. None of these Facebooks posts were
attached to the GVRO petition or submitted to the court. One of the police
reports described them as follows: “The post[s] were essentially attempts to
gather followers into defending themselves against a government takeover.
Geoffrey believed that new 5G cell towers and vaccines were being
implemented to control Americans. Geoffrey was outlining his attempts to
stock up on ammunition and encouraging others to do the same.”
When the police contacted Geoffrey, he refused to allow them to enter
his home, but agreed to talk to them outside. He sat on a retaining wall next
to his driveway. The police informed him that “his friends and family asked
the police to check on him due to comments he had posted on social media
regarding the purchase of ammunition.”
According to the police reports, “Geoffrey was very animated, agitated
and was rambling about a government takeover.” He “believed Bill Gates
and the government were using the COVID-19 to scare Americans into
receiving a vaccine to infuse trackers” and that “5G cell towers being
installed would be used to track everyone with the vaccine.” “Geoffrey would
not answer specific questions but would instead go into lengthy rants about
various unrelated topics.” He “was exhibiting psychotic and delusional
behavior.” “When asked specifically about his quest for ammunitions and his
intentions, Geoffrey replied that it was none of our business and quoted his
1st and 2nd amendment rights. Geoffrey became paranoid about where we
had received our information and accused us of working with FBI to tap his
phone lines. Geoffrey did confirm that he owns several shotguns.” “Geoffrey
5
was aggressive in nature and very confrontational, answering most of our
questions with questions and stating we were all stupid. At one point,
Geoffrey stood up and began screaming at the top of his lungs, ‘I’m buying
ammo and you should too!’ ”
The police and PERT clinician believed that “Geoffrey was a potential
danger to others” and decided to place him on a 72-hour psychiatric hold
under Welfare and Institutions Code section 5150. Geoffrey resisted being
taken into custody and began yelling for neighbors to help him. He
continuously yelled obscenities at the police while being transported to the
hospital.
B. GVRO Hearing and Defense Evidence
The trial court issued a temporary GVRO on April 22, 2020.3 The court
held a GVRO hearing on July 21, 2020. Both sides were represented by
counsel, but the hearing was unreported.4 Geoffrey and his counsel appeared
3
We augment the record to include the temporary GVRO on our own
motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
4
The trial court later approved a lengthy settled statement that was
prepared by Geoffrey in propria persona. The defense exhibits Geoffrey
submitted at the hearing were attached to the settled statement. We will
consider the attached Exhibits A-F as part of the record on appeal. But
because the trial court heard no testimony at the GVRO hearing, and the
record on appeal now includes all the documentary and video evidence
submitted by the parties below, we will otherwise consider the settled
statement only to the extent it describes what occurred at the unreported
hearing. It would not be proper for us to consider the settled statement to
supplement the documentary and video evidence submitted below. (Cal.
Rules of Court, rule 8.137(a) & (b)(1)(A) [permitting settled statement “as the
record of the oral proceedings in the superior court, instead of a reporter’s
transcript” when the proceedings “were not reported by a court reporter”].)
We also disregard attachments 2a and 2b to the settled statement, which do
not purport to summarize what occurred at the GVRO hearing; they instead
6
remotely by video. No witnesses testified at the hearing, and the Department
submitted no additional evidence beyond the previously submitted
declaration of Detective Garlow and police reports attached to the GVRO
petition. However, Geoffrey submitted six defense exhibits (Exhibits A-F).
At Geoffrey’s request, the court also reviewed police body-camera footage of
the April 17 encounter outside his house. Geoffrey made hearsay objections
to the witness statements and Facebook posts summarized in the police
reports.
The defense exhibits included a psychiatric admission evaluation of
Geoffrey and medication noncompliance summary, both prepared by
Dr. Samuel Etchie at Alvarado Parkway Institute (Alvarado). The
psychiatric admission evaluation (signed April 22, 2020) described Geoffrey’s
“delusional beliefs” and his admission to the hospital’s psychiatric intensive
care unit after Geoffrey’s pastor and a friend had called 911 to express their
concerns about his mental state and social media postings. Geoffrey repeated
to Dr. Etchie his theories about Bill Gates and the COVID-19 vaccine. He
said: “They have this vaccine and if they are going to force us to take this
vaccine then I need to buy ammo and ammunitions to defend myself against
the government and protect my family . . . .” Geoffrey also told Dr. Etchie
that his pastor, a friend, and his father all “told lies against [him].”
Dr. Etchie stated: “Upon arrival at this facility . . . , the patient
remained with significant risk of danger to others as a result of well-
developed and well-organized delusional thought processes about the
government and various governmental agencies . . . and the philanthropist,
Bill Gates, and the current COVID-19 vaccine that is not even available at
include 14 pages of argumentative responses to questions about the issues
Geoffrey intended to raise on appeal.
7
this time.” “Inpatient psychiatric admission is imperative at this time due to
the imminent risk of harm to others and the patient’s ability and
wherewithal to purchase arms and ammunitions and to prevent harm to the
patient and to others.” “The patient . . . remains with significant risk of harm
to others, especially, ‘people from the government and people connected with
the Bill Gates vaccine and the FBI.’ ” Dr. Etchie diagnosed Geoffrey with
“[b]ipolar affective disorder, mania, severe with psychotic features.”
In the medication noncompliance summary (signed May 4, 2020),
Dr. Etchie quoted Geoffrey as follows: “Everybody’s against me - my deacon,
my pastor, my father, my friend, the police, yourself, the nurses and staff in
this hospital because of only one reason. I want to defend my Second
Amendment rights to defend myself because of all the crazy things that have
been started and have been sponsored by Bill and Melinda Gates Foundation
to infect millions of Americans with bad vaccine in the name of treating this
viral pandemic.” Geoffrey denied any mental illness and refused to take any
medication.
Another defense exhibit was a one-page order of May 4, 2020 issued by
a hearing officer after a certification review hearing (Welf. & Inst. Code,
§ 5256.1) held at Alvarado regarding Geoffrey’s involuntary psychiatric
commitment.5 The order noted that Geoffrey had previously been certified on
April 20, 2020 as “a danger to others.” However, the hearing officer
concluded that Geoffrey did not have a mental disorder and explained: “No
5
Under the Welfare and Institutions Code, a certification review hearing
officer may be “either a state qualified administrative law hearing officer, a
physician and surgeon, a licensed psychologist, a registered nurse, a lawyer,
a certified law student, a licensed clinical social worker, a licensed marriage
and family therapist, or a licensed professional clinical counselor.” (Welf. &
Inst. Code, § 5256.1.)
8
known history of diagnosis or treatment. [Geoffrey] with belief virus is
created by Bill Gates Foundation and others to place tracking device in
others. [Geoffrey] has sought to obtain ammo to protect himself. No meds
taken. No threats since admit. Strange beliefs insufficient to support
psychiatric illness.” Accordingly, the hearing officer found that Geoffrey
could no longer be detained.
Geoffrey also submitted exhibits showing that he was a licensed
attorney in Ohio and a licensed real estate broker in California.
Geffrey’s father submitted a declaration stating: “On about April 17,
2020 I received a telephone call from a female (I don’t recall her name) who
represented that she was with the San Diego Police Department. She asked
if my son, Geoffrey, had attempted to buy ammunition. I answered yes. She
asked if he had said why he needed ammunition. I answered that I thought
he wanted to be prepared to defend himself and his family against an
intrusion.”
The body-camera video from April 17, 2020 showed the interaction
between Geoffrey and the police in front of his house. In addition to what
was described in the police reports, Geoffrey said on the video that he did not
intend to hurt himself or anyone else. When asked, he did not deny that he
had been posting on Facebook about purchasing ammunition for his guns.
He explained that he had been home alone for about 40 days and had been
talking to a network of people through Facebook. He claimed that he had
tried to buy ammunition for his guns because supply chains were breaking
down in the pandemic and he feared he would have to hunt for food.
According to Geoffrey, the “virus” (which he put in air quotes) was in fact a
“bioweapon” that was released from Wuhan, China. Even though he was
asked multiple times, Geoffrey repeatedly evaded answering the question
9
whether he had talked to anyone or posted anything online about buying
ammunition because he needed to defend himself. After three minutes of
dodging the question, he finally told the police, “My simple answer is, ‘none of
your business.’ ” When asked if he had a history of mental illness, Geoffrey
said, “Absolutely not, I’m the smartest person you know.”
Geoffrey also told the police about an “anti-Christ character” who
appeared in the “end days” in the Book of Revelation and made everyone
believe they could not leave home, travel, or buy or sell goods without the
“mark of the beast.” He said Bill Gates’s plan was that people could not leave
home or buy or sell goods unless they got “the mark” of the vaccine. He
claimed that Bill Gates was developing the COVID-19 vaccine with
“nanoparticle technology” that could track people and detect the balances in
their bank accounts using 5G cell towers. According to Geoffrey, Nazi
scientists had been brought to the United States from Germany to develop
the atomic bomb in “Operation Paperclip,” and in 2018, the operation was
moved to Wuhan, China to develop bioweapons with Bill Gates in charge.
Geoffrey believed that Bill Gates “has the spirit of the anti-Christ in him.”
C. GVRO After Hearing
After reviewing the documentary evidence and body-camera video
footage, the trial court granted a GVRO prohibiting Geoffrey from owning or
possessing firearms or ammunition for one year. The court issued the GVRO
using Judicial Council Form GV-120 and found “by clear and convincing
evidence” that Geoffrey posed “a significant danger of causing personal
injury” by gun violence and that a GVRO was “necessary to prevent personal
injury . . . .”
10
6
Geoffrey appeals from the one-year GVRO.
DISCUSSION
I
We first consider whether the appeal is moot. The GVRO expired in
July 2021 and the Department did not seek to renew it. After the opening
brief was filed in September 2021, the Department moved to dismiss the
appeal on mootness grounds. We deferred ruling on the motion and now deny
it.
Ordinarily, an appeal from an expired restraining order is moot
because the appellate court cannot grant any effective relief from an expired
order. (See Environmental Charter High School v. Centinela Valley Union
High School Dist. (2004) 122 Cal.App.4th 139, 144.) But here, Geoffrey
asserts that as a result of the restraining order, he faces an investigation by
the Ohio State Bar where he is currently licensed and in good standing. He
6
Geoffrey’s request for judicial notice is granted in part and denied in
part. The court takes judicial notice of Exhibit A to his motion, a superior
court order. (Evid. Code, § 452, subd. (d) [court records].) The request for
judicial notice of motion exhibits B (Rice University report); C (Mastercard
document); D (journal article); and E (declaration) is denied because those
documents are not properly subject to judicial notice under Evidence Code
sections 451 and/or 452. The Department’s request for judicial notice of
Exhibit A to its motion to dismiss the appeal is denied as moot because we
have already augmented the record on our own motion to include the
complete GVRO petition and exhibits. We also decline to consider the
August 9, 2022 psychological evaluation attached as Exhibit A to Geoffrey’s
supplemental letter brief filed October 14, 2022. We did not permit the
parties to submit additional evidence in our orders allowing supplemental
briefing, and this exhibit post-dates the trial court’s GVRO by over two years.
“In reviewing the trial court’s ruling, we must consider the facts before the
court at the time of its ruling, and not by reference to evidence produced at a
later date.” (Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236
Cal.App.4th 1315, 1328, fn. 5.)
11
also contends that he will now be listed in a database alerting law
enforcement he is a potential threat.
An appeal from an expired restraining order is not moot if it could have
collateral consequences in future proceedings. (See, e.g., In re Cassandra B.
(2004) 125 Cal.App.4th 199, 209 [appeal not moot where expired restraining
order “could have consequences . . . in this and future court proceedings”]; see
also People v. Ellison (2003) 111 Cal.App.4th 1360, 1368–1369 [“[a] criminal
case should not be considered moot where a defendant has completed a
sentence where, as here, the sentence may have ‘disadvantageous collateral
consequences’ ”].)
Moreover, as this case illustrates, a one-year GVRO may also evade
appellate review by expiring before the appeal is decided. “That a
controversy may be so short-lived as to evade normal appellate review is a
strong reason to decide an issue although it is technically moot.” (In re
Schuster (2019) 42 Cal.App.5th 943, 952.)
Finally, an appellate court may exercise its discretion to hear a moot
case where it presents an issue of broad public interest that is likely to recur.
(See Golden Door Properties, LLC v. Superior Court of San Diego County
(2020) 53 Cal.App.5th 733, 760.) We conclude that the general admissibility
of hearsay evidence in a noticed hearing on a GVRO petition to prevent gun
violence is such an issue.
Accordingly, for all these reasons, the Department’s motion to dismiss
the appeal as moot is denied.7
7
On the mootness issue, we note that Geoffrey may be subject to a
separate five-year prohibition against owning or possessing a firearm as a
result of his involuntary psychiatric detention. Under the Welfare and
Institutions Code, someone who was taken into custody for a section 5150
hold, assessed within the meaning of section 5151, and admitted to a
12
II
The only evidence the Department submitted in support of the GVRO
petition was the attached declaration of Detective Garlow and hearsay police
reports. The Department submitted no additional evidence at the GVRO
hearing. On appeal, Geoffrey argues that hearsay evidence is inadmissible in
a GVRO hearing under section 18175. This is an issue of statutory
interpretation subject to de novo review. (See Walker v. Superior Court
(2021) 12 Cal.5th 177, 194–195.)
A. The GVRO Statute
The GVRO statute provides for three different types of protective
orders prohibiting a person from owning or possessing a firearm,
ammunition, or magazine: (1) a 21-day temporary emergency GVRO issued
ex parte on request of a law enforcement officer if the court finds “reasonable
cause to believe” the subject “poses an immediate and present danger” of gun
violence (§ 18125); (2) a 21-day ex parte GVRO issued on request of a family
member, employer, coworker, teacher, or law enforcement officer if the court
finds a “substantial likelihood” that the respondent “poses a significant
danger, in the near future” of gun violence (§ 18150, 18155); and (3) a one to
five year GVRO issued after notice and hearing if the court finds “by clear
designated facility within the meaning of sections 5151 and 5152, is
prohibited from owning or possessing any firearm for five years after release.
(Welf. & Inst. Code, § 8103, subd. (f)(1)(A).) A violation is punishable by
imprisonment in state prison or county jail. (Id. at subd. (i).) On this record,
however, we cannot determine definitively whether Geoffrey is subject to this
prohibition.
13
and convincing evidence” that there is a “significant danger” of gun violence
8
(§ 18175).
For a temporary emergency GVRO, the law enforcement officer may
request the order orally, but must later provide a sworn declaration reciting
the oral statements made to the court. (§ 18140, subd. (a).) The court may
issue a temporary emergency GVRO based on statements of the law
enforcement officer. (§ 18145, subd. (a)(1).) If time and circumstances
permit, a temporary emergency GVRO may be obtained in writing based on a
sworn declaration. (Id. at subd. (a)(2).) A designated judge, commissioner, or
referee must be reasonably available to issue temporary emergency GVROs
even when the court is not in session. (Id. at subd. (b).)
For an ex parte GVRO, the court must either examine the petitioner
and any witness under oath or require the petitioner and any witness to
submit sworn affidavits. (§ 18155, subd. (a)(1)-(2).) The court may issue an
ex parte GVRO if the sworn affidavits or testimony and “any additional
information provided to the court” satisfy the “substantial likelihood”
standard. (§ 18150, subd. (b).) The statute provides that the court “shall
consider all evidence” of six factors listed in section 18155, subdivision (b)(1),9
8
At the time of the hearing in this case, a GVRO after hearing could
have at most a one-year duration. (§ 18170, former subd. (a).) Effective
September 1, 2020, the statute was amended to provide a duration of one to
five years. (§ 18170, subd. (a)(1); Stats. 2019, ch. 725, § 4.5.)
9
The subdivision (b)(1) factors are: “(A) A recent threat of violence or act
of violence by the subject of the petition directed toward another. [¶] (B) A
recent threat of violence or act of violence by the subject of the petition
directed toward himself or herself. [¶] (C) A violation of an emergency
protective order issued pursuant to [other specified provisions of law]. [¶]
(D) A recent violation of an unexpired protective order issued pursuant to
[other specified provisions of law]. [¶] (E) A conviction for any offense listed
14
and “may consider any other evidence of an increased risk for violence,
including, but not limited to” seven additional factors listed in section 18155,
10
subdivision (b)(2). An ex parte GVRO must be issued or denied on the same
day the petition is filed or the next day of judicial business. (§ 18150, subd.
(d).)
For a GVRO after notice and hearing, the hearing must be held within
11
21 days of issuance of the temporary emergency GVRO or ex parte GVRO.
in Section 29805 [illegal firearm possession]. [¶] (F) A pattern of violent acts
or violent threats within the past 12 months, including, but not limited to,
threats of violence or acts of violence by the subject of the petition directed
toward himself, herself, or another.” (§ 18155, subd. (b)(1)(A)-(F).) “Recent”
is defined to mean “within the six months prior to the date the petition was
filed.” (§ 18155, subd. (b)(3).)
10
The subdivision (b)(2) factors are: “(A) The unlawful and reckless use,
display, or brandishing of a firearm by the subject of the petition. [¶] (B) The
history of use, attempted use, or threatened use of physical force by the
subject of the petition against another person. [¶] (C) A prior arrest of the
subject of the petition for a felony offense. [¶] (D) A history of a violation by
the subject of the petition of an emergency protective order issued pursuant
to [specified provisions] of the Family Code. [¶] (E) A history of a violation of
the petition of a protective order issued pursuant to [other specified
provisions of law]. [¶] (F) Documentary evidence, including, but not limited
to, police reports and records of convictions, of either recent criminal offenses
by the subject of the petition that involve controlled substances or alcohol or
ongoing abuse of controlled substances or alcohol . . . . [¶] (G) Evidence of
recent acquisition of firearms, ammunition, or other deadly weapons.”
(§ 18155, subd. (b)(2)(A)-(G).)
11
Rule 8 of the Judicial Council’s Emergency Rules Related to COVID-19
provided that any temporary GVRO issued or set to expire during the
COVID-19 state of emergency “must remain in effect for a period of time that
the court determines is sufficient to allow for a hearing on the long-term
order to occur, for up to 90 days.” (Cal. Rules of Court, Appen. I, rule 8.) In
this case, the temporary GVRO was issued during the COVID-19 state of
15
(§§ 18148, 18165.) The statutory provision for a GVRO after hearing refers
back to the factors listed for an ex parte GVRO. Specifically, section 18175
provides: “In determining whether to issue a gun violence restraining order
[after notice and hearing], the court shall consider evidence of the facts
identified in paragraph (1) of subdivision (b) of Section 18155 and may
consider any other evidence of an increased risk for violence, including, but
not limited to, evidence of the facts identified in paragraph (2) of subdivision
(b) of Section 18155.” (§ 18175, subd. (a), italics added.)
B. The Kaiser Decision
In Kaiser, supra, 201 Cal.App.4th 550, we ruled that hearsay evidence
is admissible at a hearing on a WVRO. The WVRO statute allows an
employer to seek on behalf of one of its employees (1) a temporary restraining
order for up to 21 days (which may be extended to 25 days), and (2) an order
after notice and hearing of not more than three years prohibiting unlawful
violence or threats of violence against the employee. (Code Civ. Proc.,
§ 527.8, subds. (a), (e)-(k).)
The WVRO statute states that a temporary restraining order shall be
issued based solely on the employer’s declaration providing “reasonable proof”
that its employee has suffered unlawful violence or a credible threat of
violence by the respondent, and that great or irreparable harm would result
to the employee. (Code Civ. Proc., § 527.8, subd. (e).) After granting or
denying such a temporary restraining order, the court must hold a “hearing”
before issuing a long-term WVRO. (Id. at subds. (h)-(i).) The hearing must
be held within 21 days of the ruling on the temporary restraining order, or
within 25 days if there is good cause. (Id. at subd. (h).) Subdivision (j) states:
emergency for a 90-day period expiring on July 21, 2020, the date of the
noticed GVRO hearing.
16
“At the hearing, the judge shall receive any testimony that is relevant and
may make an independent inquiry.” If the court finds “by clear and
convincing evidence” that the respondent engaged in unlawful violence or
made a credible threat of violence, it must issue a WVRO of not more than
three years. (Id. at subd. (j).)
As we noted in Kaiser, these provisions of the WVRO statute are
similar to provisions of the statute governing CHROs. (Code Civ. Proc.,
§ 527.6.) Section 527.6 allows a victim of harassment to seek (1) a temporary
CHRO for up to 21 days (which may be extended to 25 days) based solely on
the victim’s declaration showing “reasonable proof” of harassment (Code Civ.
Proc., § 527.6, subds. (d), (f)), and (2) a long-term CHRO of up to five years
issued based on “clear and convincing evidence” of harassment after a
hearing at which “the judge shall receive any testimony that is relevant, and
may make an independent inquiry.” (Id. at subd. (i).) Like Code of Civil
Procedure section 527.8, section 527.6 requires a showing of “great or
irreparable harm” for a temporary CHRO, but not for a CHRO after hearing.
(Code Civ. Proc., § 527.6, subds. (d), (i).)
The appellant in Kaiser was appealing a three-year WVRO issued on
behalf of two Kaiser employees after a hearing. He argued that the trial
court had erred by admitting hearsay evidence of his threats at the WVRO
hearing, including hearsay testimony from one of the employees that a police
officer had told her that appellant’s wife had reported to the police that
appellant was going to shoot the employee. (Kaiser, supra, 201 Cal.App.4th
at pp. 554–555.) We concluded that hearsay evidence is admissible at a
WVRO hearing for several reasons. (Id. at pp. 555–558.)
First, we noted that Code of Civil Procedure section 527.8, subdivision
(j) (then subdivision (f)) of the statute specifically states that the court “shall
17
receive any testimony that is relevant” at the hearing. (Code Civ. Proc.,
§ 527.8, subd. (j), italics added.) We explained: “The plain language of this
provision suggests that the Legislature intended to permit a trial court to
consider all relevant evidence, including hearsay evidence, when deciding
whether to issue an injunction to prevent workplace violence pursuant to
[Code of Civil Procedure] section 527.8.” (Kaiser, supra, 201 Cal.App.4th at
p. 557.) “Evidence Code section 1200, subdivision (b) provides that hearsay
evidence is generally inadmissible, ‘[e]xcept as provided by law.’ Subdivision
(f) [now subdivision (j)] of [Code of Civil Procedure] section 527.8 appears to
be one of the exceptions to Evidence Code section 1200, subdivision (b), in
that it mandates the court consider, without limitation, ‘any testimony that is
relevant.’ ” (Ibid.)
Second, we observed: “The unique context of a hearing pertaining to a
workplace violence injunction supports our conclusion. Specifically,
injunctive proceedings under [Code of Civil Procedure] section 527.8 are
intended to parallel those under [Code of Civil Procedure] section 527.6,
which are procedurally truncated, expedited, and intended to provide quick
relief to victims of civil harassment.” (Kaiser, supra, 201 Cal.App.4th at
p. 557.)
Third, we explained: “In addition, a petition for an injunction under
[Code of Civil Procedure] section 527.8 is heard by the court, not a jury, and
is decided by the clear and convincing standard of proof. Trial judges are
particularly aware of the potential unreliability of hearsay evidence, and are
likely to keep this in mind when weighing all of the evidence presented.”
(Kaiser, supra, 201 Cal.App.4th at p. 557.)
We concluded: “Considering the fact that the purpose of the statute is
to prevent violence in the workplace, the expedited nature of the proceeding
18
contemplated by the statute, and the Legislature’s directive that the trial
court shall receive all relevant testimony without qualification, we conclude
that the testimony that a trial court may consider in making a ruling on a
petition pursuant to [Code of Civil Procedure] section 527.8 is not limited to
nonhearsay testimony.” (Kaiser, supra, 201 Cal.App.4th at p. 558.)
Other courts have since cited Kaiser outside the WVRO context. For
example, in Duronslet, supra, 203 Cal.App.4th 717, the court cited Kaiser in
holding that hearsay evidence is admissible to prove a credible threat of
violence for a three-year CHRO after hearing under Code of Civil Procedure
section 527.6. (Id. at pp. 728–729.) The court thus found no error in the
admission of a police report containing hearsay statements by a non-
testifying nurse who told the police about threats she said she had heard the
defendant make. (Id. at pp. 723, 728–729; accord Yost, supra, 51 Cal.App.5th
at p. 521 [citing Kaiser and Duronslet for the proposition that “hearsay
evidence, such as a declaration or police report, is admissible during hearings
conducted pursuant to [Code of Civil Procedure] section 527.6”].) Another
court has cited Kaiser in stating that hearsay evidence is admissible in a
noticed hearing on a petition for restraining order under Welfare &
Institutions Code section 213.5 and rule 5.630(f)(1) of the California Rules of
Court. (In re L.W. (2020) 44 Cal.App.5th 44, 48, fn. 3.)
C. Admissibility of Hearsay Evidence at a GVRO Hearing
We now conclude that the rationale of Kaiser also applies to a GVRO
hearing under section 18175. Based on the language, purpose, and
legislative history of the GVRO statute, and its similarity to the WVRO and
CHRO statutes, we hold that hearsay evidence is admissible at a GVRO
hearing.
19
We begin with the statutory language. By its terms, Penal Code
section 18175, subdivision (a), states that the court “shall consider evidence”
of the factors listed in section 18155, subdivision (b)(1), and “may consider
any other evidence of an increased risk for violence,” including the factors
listed in section 18155, subdivision (b)(2). (Pen. Code, § 18175, subd. (a),
italics added.) The Evidence Code defines hearsay as a form of “evidence.”
(Evid. Code, § 1200, subd. (a) [“ ‘Hearsay evidence’ is evidence of a statement
that was made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated.”], italics added.)
Moreover, the ordinary meaning of the word “any” is “without limit and no
matter what kind.” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.)
“From the earliest days of statehood,” the Supreme Court has “interpreted
‘any’ to be broad, general, and all embracing.” (California State Auto. Asso.
Inter-Insurance Bureau v. Warwick (1976) 17 Cal.3d 190, 195, citing
Davidson v. Dallas (1857) 8 Cal. 227, 239 [construing “any” to mean “every”].)
Thus, the statutory terms “evidence” and “any other evidence” as used in
Penal Code section 18175, subdivision (a), logically include the form of
“evidence” defined as “hearsay evidence.” (Evid. Code, § 1200, subd. (a).)
Just as the WVRO statute at issue in Kaiser permits “any testimony
that is relevant” (Code Civ. Proc., § 527.8, subd. (j), italics added), the GVRO
statute permits a court to consider “any other evidence of an increased risk
for violence” (§ 18175, subd. (a), italics added)—and does so “without
limitation” and “without qualification.” (Kaiser, supra, 201 Cal.App.4th at
pp. 557, 558.) For purposes of resolving the hearsay issue, we perceive no
meaningful distinction between the WVRO phrase “any testimony that is
relevant” (Code Civ. Proc., § 527.8, subd. (j)) and the GVRO phrase “any other
evidence of an increased risk for violence.” (§ 18175, subd. (a).) The GVRO
20
provision does not use the word “relevant,” but its plain meaning is that
courts may consider “any” evidence that is relevant to show an increased risk
for violence. (Ibid.) And testimony is just one form of evidence. (Evid. Code,
§ 140 [defining “evidence” to include “testimony”]; Black’s Law Dict. (11th ed.
2019) p. 1778, col. 2 [defining “testimony” as a form of “evidence”].) We
therefore find that the broad, unqualified language of section 18175 similarly
suggests that the evidence a trial court may consider at a GVRO hearing “is
not limited to nonhearsay” evidence. (Kaiser, supra, 201 Cal.App.4th at
p. 558.)
Beyond this similarity to the WVRO statute, however, the text of the
GVRO statute contains another positive indication that the Legislature
intended to allow the admission of hearsay evidence. As noted, section
18175, subdivision (a) allows the court to consider “any other evidence of an
increased risk for violence, including, but not limited to, evidence of the facts
identified in paragraph (2) of subdivision (b) of Section 18155.” (§ 18175,
subd. (a), italics added.) The referenced paragraph of section 18155 includes
a provision allowing the court to consider “[d]ocumentary evidence, including,
but not limited to, police reports and records of convictions, of either recent
criminal offenses by the subject of the petition that involve controlled
substances or alcohol or ongoing abuse of controlled substances or alcohol.”
(§ 18155, subd. (b)(2)(F), italics added.)
Documentary evidence and police reports offered for the truth of the
matter asserted are classic forms of hearsay. (Evid. Code, § 1200.) Thus, the
inclusion of documentary evidence and police reports in section 18155,
subdivision (b)(2)(F)—and its incorporation by reference in section 18175,
subdivision (a)—signal that the Legislature intended the terms “evidence”
21
and “any other evidence” as used in section 18175, subdivision (a) to include
12
hearsay evidence.
In our view, it would make little sense to treat section 18155,
subdivision (b)(2)(F) as a narrow exception only allowing hearsay evidence of
alcohol or substance abuse or related convictions. In the first place, the
statutory language does not frame it as an exception. Sections 18155 and
18175 both treat the documentary evidence described in this subdivision as
being “includ[ed]” within the broader category of “any other evidence of an
increased risk for violence.” (§§ 18155, subd. (b)(2), 18175, subd. (a).) This
affirmatively suggests that the Legislature intended the phrase “any other
evidence” to include documentary evidence such as police reports. Moreover,
we cannot conceive of any rational reason why the Legislature would create a
narrow hearsay exception just for evidence of alcohol or substance abuse used
to prove an increased risk for violence, but not for actual threats of harm or
other evidence used to prove an increased risk for violence.13 To the extent
the statute is ambiguous, we must construe it to avoid such a capricious
result. (California School Employees Assn. v. Governing Board (1994) 8
Cal.4th 333, 340.)
12
The dissent quotes a statement made by the Department in its
respondent’s brief that “California’s GVRO law is silent as to the
admissibility of hearsay in a GVRO hearing . . . .” But the Department later
submitted a supplemental brief on the hearsay issue at our request. In that
brief, the Department argued that hearsay evidence is admissible under “the
plain language” of section 18175 and the reasoning of Kaiser.
13
For example, why would the Legislature create a special hearsay
exception for abuse of controlled substances or alcohol (§ 18155, subd.
(b)(2)(F)), but not for a history of using physical force (id. at subd. (b)(2)(B)) or
recent acquisition of firearms or ammunition (id. at subd. (b)(2)(G))?
22
Our conclusion that hearsay evidence is admissible in a GVRO hearing
is reinforced by the other factors we relied on in Kaiser. Like a WVRO or
CHRO proceeding, a GVRO proceeding is “procedurally truncated, expedited,
and intended to provide quick relief . . . .” (Kaiser, supra, 201 Cal.App.4th at
p. 557.) These types of proceedings are all intended to prevent a threat of
harm and designed to take less than a month to litigate from beginning to
end. They all contemplate an initial ex parte or emergency order to be issued
immediately for a limited duration of 21 days, followed by a noticed hearing
to be held within 21 days of the initial order for the court to determine
whether to issue a long-term restraining order. And a GVRO proceeding is
also “heard by the court, not a jury, and is decided by the clear and
convincing evidence standard of proof” by judges who “are particularly aware
of the potential unreliability of hearsay evidence” and “are likely to keep this
in mind when weighing all of the evidence presented.” (Ibid.)
Not only are these statutory schemes similar in structure and purpose,
but there is a substantial overlap of subject matter. Specifically, the WVRO
and CHRO statutes both state that anyone who is subject to one of its
protective orders “shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm or ammunition while the protective order is in
effect.” (Code Civ. Proc., §§ 527.6, subd. (u)(1), 527.8, subd. (s)(1).) It would
be anomalous to conclude that hearsay evidence may be used to obtain such a
firearm prohibition under the WVRO and CHRO statutes, but not under the
GVRO statute, which more directly targets gun violence. To resolve any
ambiguity, we must adopt “the construction which best serves to harmonize
the statute internally and with related statutes.” (Hsu v. Abbara (1995) 9
Cal.4th 863, 871, italics added.)
23
Finally, we have reviewed the 2014 legislative history of the GVRO
statute for guidance. We do not find it to be particularly helpful in deciding
the question before us. The legislative committee reports shed no meaningful
14
light on it. We do note, however, that the provision that ultimately became
section 18175 went through several revisions in the legislative process. The
language of an early version merely stated that “the court shall consider
evidence of the facts identified” in what ultimately became section 18155,
14
One legislative committee report suggests that the GVRO was modeled
on the domestic violence restraining order (DVRO) statute (Fam. Code,
§ 6200, et seq.), as well as gun seizure laws in Connecticut, Indiana, and
Texas. (Sen. Com. on Public Safety, Report on Assem. Bill No. 1014 (2013-
2014 Reg. Sess.) as amended June 11, 2014, pp. 13, 16-19.) However, this
same report also states that the GVRO statute “differs from the domestic
violence restraining order system in a variety of ways.” (Id. at p. 22.) In any
event, neither the DVRO statute nor the case law applying it clearly
establishes whether hearsay is generally admissible in a DVRO hearing.
Family Code section 6300, subdivision (a) states that a DVRO may be issued
“based solely on the affidavit or testimony of the person requesting the
restraining order.” (Fam. Code, § 6300, subd. (a).) This provision applies to
any order “issued under this part” (ibid.) (i.e., Part 4 of Division 10 of the
Family Code), which includes both ex parte DVROs (Fam. Code, §§ 6320-
6327) and DVROs after notice and hearing (Fam. Code, §§ 6340-6347). Thus,
at least one form of hearsay—affidavits—is admissible in a DVRO hearing.
(See also Fam. Code, § 6305 subd. (a)(1) [allowing “written evidence of abuse
or domestic violence” for issuance of mutual DVRO].) Two of the three DVRO
cases cited by the dissent (all decided after the GVRO statute was enacted)
merely noted in passing that the trial court had applied the hearsay rule.
(In re Marriage of Everard (2020) 47 Cal.App.5th 109, 115; M.S. v. A.S. (2022)
76 Cal.App.5th 1139, 1142.) The third found no error in the admission of
hearsay evidence for a non-hearsay purpose, but did not consider or discuss
whether the hearsay rule generally applies in a DVRO hearing. (Molinaro v.
Molinaro (2019) 33 Cal.App.5th 824, 828, fn. 3.) We have also examined the
Connecticut, Indiana, and Texas gun laws and found nothing to assist us in
resolving the issue before us. (Conn. Gen. Stat., § 29-38c; Ind. Code, § 35-47-
14-1 et seq.; Tex. Health & Saf. Code, § 573.001(h); Tex. Code Crim. Proc.,
Art. 18.191.)
24
subdivision (b)(1) and “may consider evidence of any of the facts identified” in
what ultimately became section 18155, subdivision (b)(2). (Sen. Amend. to
Assem. Bill No. 1014 (2013-2014 Reg. Sess.) June 11, 2014, § 3, ch. 3 [Pen.
Code, § 18107].) This provision was later amended to state that “the court
shall consider evidence of the facts identified in” section 18155, subdivision
(b)(1) and “may consider any other relevant evidence, including, but not
limited to, evidence of the facts identified in” section 18155, subdivision
(b)(2). (Sen. Amend. to Assem. Bill No. 1014 (2013-2014 Reg. Sess.) July 2,
2014, § 3, ch. 4 [Pen. Code, § 18175].) Finally, it was amended again to state
that “the court shall consider evidence of the facts identified in” section
18155, subdivision (b)(1) and “may consider any other evidence of an increased
risk for violence, including, but not limited to, evidence of the facts identified
in” section 18155, subdivision (b)(2). (Sen. Amend. to Assem. Bill No. 1014
(2013-2014 Reg. Sess.) Aug. 4, 2014, § 3, ch. 4 [Pen. Code, § 18175].)
This progression indicates that the Legislature deliberately expanded
the language of the bill to permit courts to consider not only the specific
factors listed in section 18155, subdivision (b), but also “any other evidence”
relevant to show “an increased risk for violence.” (§ 18175, subd. (a).) To the
extent this history is helpful at all, it bolsters our conclusion that the
rationale of Kaiser applies here as well.
We recognize that a GVRO proceeding implicates the Second
Amendment right to bear arms. But the Second Amendment has nothing to
say about the admissibility of hearsay evidence. The Legislature has
accounted for the importance of the right at stake by mandating a clear and
convincing standard of proof. (§ 18175, subd. (b).) The clear and convincing
evidence standard reduces the risk of error when particularly important
individual interests are at stake, such as parental rights, involuntary
25
commitment, and deportation. (Santosky v. Kramer (1982) 455 U.S. 745, 752-
766; Weiner v. Fleischman (1991) 54 Cal.3d 476, 487.) Once again, the GVRO
statute is no different from the WVRO and CHRO statutes in this regard. As
we have explained, those statutes also implicate the right to possess firearms;
they also require proof by clear and convincing evidence; and they also allow
15
the admission of hearsay evidence or testimony.
In sum, to paraphrase our holding in Kaiser: “Considering the fact that
the purpose of the [GVRO] statute is to prevent [gun] violence . . . , the
expedited nature of the proceeding contemplated by the statute, and the
Legislature’s directive that the trial court shall receive [any evidence of an
increased risk for violence] without qualification, we conclude that the
[evidence] that a trial court may consider in making a ruling on a petition
pursuant to [the GVRO statute] is not limited to nonhearsay [evidence].”
(Kaiser, supra, 201 Cal.App.4th at p. 558.) Accordingly, we hold that hearsay
evidence is admissible in a GVRO hearing under section 18175. At the same
15
The dissent questions why the Legislature would have required a
statement under oath for an emergency or ex parte GVRO, but not for a long-
term GVRO after noticed hearing. The legislative history does not answer
this question, but the Legislature may have believed that it was important to
require a statement under oath for an emergency or ex parte GVRO precisely
because it recognized that, in contrast to a GVRO after notice and hearing,
the respondent usually will not have sufficient notice and opportunity to
contest the petitioner’s evidence or produce evidence in defense. As noted, an
emergency or ex parte GVRO may be issued without any evidentiary hearing
(§§ 18140, 18145, 18155, subd. (a)(2)), and an ex parte GVRO must be issued
or denied on the day it is filed or the next court day. (§ 18150, subd. (d).) In
any event, requiring a sworn statement is not the same as forbidding
hearsay, because an affidavit or declaration is itself hearsay and any sworn
testimony may also contain additional hearsay. For example, the
Department here submitted the sworn declaration of Detective Garlow to
obtain both the temporary GVRO and long-term GVRO, but his declaration
was based on the attached hearsay police reports.
26
time, we caution that courts must bear in mind “the potential unreliability of
hearsay evidence, . . . when weighing all of the evidence presented.” (Id. at
p. 557.)
III
Geoffrey also argues that by considering hearsay evidence, the trial
court violated his Sixth Amendment right to confront the witnesses against
him. This claim is forfeited because Geoffrey’s hearsay objections in the trial
court were insufficient to preserve a constitutional claim. (People v. Redd
(2010) 48 Cal.4th 691, 730.) Even if the claim were preserved, however, the
Sixth Amendment’s confrontation clause only applies to criminal proceedings.
(People v. Sweeney (2009) 175 Cal.App.4th 210, 221–222 [confrontation clause
does not apply to civil commitment proceedings].) The GVRO statute
“establishes a civil restraining order process” (§ 18100, subd. (a), italics
added) and is not comparable to a criminal prosecution.
In a civil proceeding, the right to confront and cross-examine witnesses
derives from the due process clauses of the state and federal constitutions.
(People v. Orey (2021) 63 Cal.App.5th 529, 559.) Geoffrey has not raised any
due process issue on appeal, nor does the record reflect that he did so in the
trial court. Even if he had, however, we would also find no due process
violation.
When the petitioner calls live witnesses at a GVRO hearing, the
respondent has a due process right to confront and cross-examine them. (See,
e.g., CSV Hospitality Management LLC v. Lucas (2022) 84 Cal.App.5th 117,
124–125 [right to cross-examine testifying witness at WVRO hearing].)
Likewise, if the petitioner relies on hearsay evidence, the respondent has a
due process right to call the hearsay declarants and cross-examine them on
the stand. (See In re Lucero L. (2000) 22 Cal.4th 1227, 1244 [“in civil
27
proceedings . . . parties generally have a due process right to cross-examine
available hearsay declarants”]; see also In re Malinda S. (1990) 51 Cal.3d
368, 382–385 [holding that when juvenile court relies on hearsay social study
in dependency proceeding, due process requires that each party receive a copy
of the report, have the right to subpoena and cross-examine the investigating
officer and persons whose hearsay statements are contained in the report,
and be allowed to introduce evidence in rebuttal]; In re Gary U. (1982) 136
Cal.App.3d 494, 501 [holding that when juvenile court relies on hearsay
probation report in proceeding to terminate parental rights, parent has right
to cross-examine not only any law enforcement officer who authored the
report, but also “the sources from which that person obtained the information
inserted into the report”].)
Geoffrey is therefore correct that he had a right to cross-examine the
hearsay declarants as witnesses at the GVRO hearing. (See also § 18121 [no
fee for subpoena in GVRO proceedings].) But he elected not to assert or
exercise this right. At the hearing (when Geoffrey was represented by
counsel), he did not call either the police officers who authored the police
reports or the reporting parties quoted in the police reports.16 Instead,
Geoffrey elected to defend himself with his own hearsay exhibits.
16
Although the names of the reporting parties are redacted from the
copies of the police reports submitted for the GVRO hearing, Dr. Etchie’s
report from two months earlier suggests that Geoffrey knew who several of
them were. Dr. Etchie’s report identified the reporting parties as Geoffrey’s
pastor and a friend. According to the same report, Geoffrey told Dr. Etchie,
“My pastor, my friend and my father, they told lies against me.” He said:
“ ‘Everybody’s against me – my deacon, my pastor, my father, my friend, the
police . . . .’ ” And even if Geoffrey did not know the identities of all the
reporting parties, he could have demanded that they be disclosed so that he
could call them as witnesses and cross-examine them at the GVRO hearing.
The record contains no suggestion that he did so.
28
Accordingly, we would find no due process violation even if Geoffrey had
preserved the issue.
IV
We next consider whether there is sufficient evidence to support the
trial court’s issuance of the GVRO. A trial court’s factual findings on the
elements necessary for a restraining order are reviewed for substantial
evidence. (Technology Credit Union v. Rafat (2022) 82 Cal.App.5th 314, 323
(Rafat).) In conducting our substantial evidence review, we must take into
account the clear and convincing evidence standard of proof mandated by the
GVRO statute. (§ 18175, subd. (b); Conservatorship of O.B. (2020) 9 Cal.5th
989, 1011–1012 (O.B.); Rafat, at p. 323.)
Clear and convincing evidence requires a finding of high probability.
(In re Angelia P. (1981) 28 Cal.3d 908, 919.) Under this standard, the
evidence must be so clear as to leave no substantial doubt and sufficiently
strong to command the unhesitating assent of every reasonable mind. (Ibid.)
“When reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is whether the
record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.” (O.B.,
supra, 9 Cal.5th at p. 1011.) We must therefore determine whether the
record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that Geoffrey posed a “significant
danger” of gun violence.17 (§ 18175, subd. (b)(1).) We “review the record in
the light most favorable to the prevailing party below and give appropriate
17
Geoffrey does not contest the trial court’s finding that “less restrictive
alternatives [than a GVRO] either have been tried and found to be
ineffective, or have been determined to be inadequate or inappropriate for the
current circumstances.” (See § 18175, subd. (b)(2).)
29
deference to how the trier of fact may have evaluated the credibility of
witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (O.B., at pp. 1011–1012.)
The GVRO statute does not require a high probability that the subject
will cause gun violence; it only requires a high probability that the subject
poses a “significant danger” of committing gun violence. (§ 18175, subd.
(b)(1); see also Sen. Amend. to Assem. Bill No. 1014 (2013-2014 Reg. Sess.)
August 21, 2014, § 3, ch. 4 [amending final language of § 18175, subd. (b)(1)
to substitute “significant danger” standard for “will cause” standard].) Both
the statutory text and legislative history also make clear that the GVRO
standard requires “a more attenuated showing” of danger than the DVRO
standard because it does not require “a showing of abuse (physical, mental, or
threatened) directed at the person seeking the order.” (Sen. Com. on Public
Safety, Report on Assem. Bill No. 1014 (2013-2014 Reg. Sess.) as amended
June 11, 2014, p. 22.)
Applying these legal principles and viewing the entire record in the
light most favorable to the trial court’s ruling, we conclude there is sufficient
evidence to support its finding of a high probability that Geoffrey posed a
significant danger of committing gun violence. In multiple Facebook posts,
Geoffrey outlined his false beliefs about Bill Gates and the COVID-19
vaccine, attempted to gather followers to defend themselves against a
government takeover, discussed his attempts to stock up on ammunition, and
encouraged others to do the same. Geoffrey admitted to the police that he
had been posting on Facebook about Bill Gates killing millions of people and
told the police that “Bill Gates is a murderer.” Geoffrey also admitted that he
possessed shotguns and had unsuccessfully attempted to purchase
ammunition for them at Walmart on the morning of his psychiatric detention.
30
After his visit to Walmart, Geoffrey called an acquaintance in a “rage,
ranting about Walmart refusing to sell him firearm ammunition due to him
coming up in their system as ‘denied.’ ” Geoffrey told this person it was part
of the “ ‘government[’]s plan’ ” and claimed that “ ‘[p]eople are going to try to
get me and I need to defend myself.’ ” Geoffrey said he had asked his father
to fly to California from Ohio to purchase ammunition for him, but his father
declined. Geoffrey’s father submitted a declaration confirming that Geoffrey
had called him about purchasing ammunition to defend himself. Geoffrey
also told another acquaintance, “ ‘I guess I’m just going to have to take things
into my own hands.’ ”
In the days leading up to Geoffrey’s psychiatric detention, several
individuals were so alarmed about his mental health and Facebook posts that
they made reports to the authorities. These individuals included a clinical
psychologist, Geoffrey’s pastor, and a friend. One of these individuals said
“Geoffrey has reported signs of anxiety and paranoia for some time but has
refused to seek treatment.” According to this person, “Geoffrey’s anxiety,
delusional thoughts and paranoia ha[ve] rapidly escalated, putting him in a
panic state.” Geoffrey had expressed to this person “a strong need to defend
himself with his firearms against a government takeover.”
In his conversation with the police on April 17, 2020, Geoffrey admitted
he believed Bill Gates “has the spirit of the anti-Christ in him” and compared
him to the “anti-Christ character” in the “end days” of the Book of Revelation.
According to Geoffrey, “the things that are being proposed to us are Biblical
in proportion.”
The trial court could reasonably infer from the evidence that Geoffrey
was not forthright with the police about the reason he was trying to purchase
ammunition. Even though he had posted on Facebook and told others that he
31
wanted ammunition for his guns to defend himself against a government
takeover, he told the police it was because supply chains were breaking down
and he might have to hunt for food. Geoffrey repeatedly evaded the question
and tried to play word games when asked whether he had made statements
about needing ammunition to defend himself—before finally telling the police
it was none of their business.
Geoffrey’s apparent effort to conceal from the police his true reason for
purchasing ammunition supports a reasonable inference that he felt he had
something to hide, and that he was not referring to a legally protected form of
self-defense when he made statements about defending himself against a
“government takeover.” Notably, there was evidence that Geoffrey believed
various private parties were also part of the government plot or were out to
get him, including Bill Gates, the people at Walmart, the staff at Alvarado,
the police, and his own father, deacon, pastor, and friend.
The police and PERT clinician believed that “Geoffrey was a potential
danger to others” and placed him on a psychiatric hold under Welfare and
Institutions Code section 5150. When Geoffrey arrived at the psychiatric
hospital, he “remained with significant risk of danger to others as a result of
well-developed and well-organized delusional thought processes about the
government and various governmental agencies . . . and the philanthropist,
Bill Gates . . . .” Three days after his initial detention, Geoffrey was certified
as “a danger to others.” After conducting a psychiatric evaluation, Dr. Etchie
concluded: “Inpatient psychiatric admission is imperative at this time due to
the imminent risk of harm to others and the patient’s ability and
wherewithal to purchase arms and ammunitions and to prevent harm to the
patient and to others.” In Dr. Etchie’s professional opinion, Geoffrey
“remain[ed] with significant risk of harm to others, especially, ‘people from
32
the government and people connected with the Bill Gates vaccine and the
FBI.’ ”
We acknowledge that the Department’s evidence was hearsay, and we
take heed of our own admonition that hearsay evidence is potentially
unreliable. But there were several different people who independently called
authorities with the same concerns about Geoffrey’s mental state and
attempts to purchase ammunition—none of whom had any evident reason to
lie. These individuals included Geoffrey’s own pastor and a friend. Their
concerns were corroborated by Geoffrey’s Facebook posts and his statements
to the police, which were documented on the 22-minute body-camera video
Geoffrey himself submitted to the court. Geoffrey also submitted his father’s
declaration and Dr. Etchie’s psychiatric evaluation report, which further
corroborated the hearsay evidence submitted by the Department.18 Moreover,
Geoffrey had an opportunity to call witnesses to challenge the Department’s
hearsay evidence at the GVRO hearing. He could have testified himself or he
could have called the police officers or the reporting parties to confront and
cross-examine them about the information in the police reports. He could
also have submitted copies of his own Facebook posts to dispute how they
18
Geoffrey argues that Dr. Etchie’s psychiatric evaluation report
contained inaccurate information, including a statement that Geoffrey had “a
history of severe mental illness” and another that appeared to question
whether Geoffrey was really an attorney and a real estate practitioner. We
note that in a separate section of the report entitled “Past Psychiatric
History,” Dr. Etchie mentioned nothing about Geoffrey having a history of
mental illness and acknowledged that he denied having any such history. In
any event, it was for the trial court to assess these alleged discrepancies and
determine whether they undermined the rest of the report or the credibility
of Dr. Etchie’s professional opinion that Geoffrey posed a risk of harm to
others. On appeal, we must presume that the trial court resolved any such
credibility issues in favor of the Department. (People v. Alexander (2010) 49
Cal.4th 846, 882–883.)
33
were described in the police reports. The trial court could fairly infer from
Geoffrey’s failure to do so that the hearsay evidence in the police reports was
accurate and reliable. (Evid. Code, § 413; Williamson v. Superior Court
(1978) 21 Cal.3d 829, 835, fn. 2.)
Considered in its totality, we conclude that the evidence is sufficient to
support the trial court’s finding by clear and convincing evidence that
Geoffrey posed a “significant danger” of gun violence. (§ 18175, subd. (b)(1).)
Because the Department’s hearsay evidence came from multiple sources that
were consistent with one another, including Geoffrey’s pastor, his friend, his
own Facebook posts, and Geoffrey himself, and it was corroborated by other
evidence Geoffrey submitted at the hearing, and not otherwise refuted, we
conclude that it was sufficiently reliable to support the GVRO.
V
Geoffrey contends that the trial court violated his First Amendment
free speech rights by retaliating against him for expressing “strange beliefs”
and speaking publicly about buying ammunition. According to Geoffrey, the
trial court erred “by granting the GVRO based on the content of [his] lawful
speech.”
Geoffrey has not preserved this issue for appeal. The trial court’s
minute order from the GVRO hearing and the GVRO itself do not mention
anything about a First Amendment issue having been raised by Geoffrey.
Geoffrey’s settled statement also does not mention the First Amendment or
state that he raised a First Amendment issue in the trial court. Because the
record does not demonstrate that any First Amendment issue was raised
below, we conclude that it was forfeited. In both criminal and civil cases, a
constitutional claim is generally forfeited by the failure to assert it in the
trial court. (People v. Saunders (1993) 5 Cal.4th 580, 590; see also Hepner v.
34
Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 (Hepner) [“In civil cases,
constitutional questions not raised in the trial court are considered
waived.”].)
Even if the issue were preserved, we would reject it on the merits. The
First Amendment limits the government’s ability to regulate the content of
speech, but it “does not prohibit the evidentiary use of speech to establish the
elements of a crime or to prove motive or intent.” (Wisconsin v. Mitchell
(1993) 508 U.S. 476, 489 (Mitchell).) Although Mitchell involved a criminal
case, the same principle logically applies in a civil proceeding. (Watson v.
Perry (W.D. Wash. 1996) 918 F.Supp. 1403, 1418; Thomasson v. Perry (E.D.
Va. 1995) 895 F.Supp. 820, 824.) Nothing in the record supports Geoffrey’s
claim that the trial court issued the GVRO as retaliation against him for his
speech or beliefs. Rather, the court made “evidentiary use of [his] speech” to
determine whether Geoffrey posed a significant danger of gun violence, as
required by the GVRO statute. (Mitchell, at p. 489.) This did not violate the
First Amendment.
VI
Geoffrey next argues that the trial court violated his Second
Amendment right to bear arms by ordering the seizure of his guns. He does
not assert that the GVRO statute itself violates the Second Amendment, but
he claims that the trial court erred by considering his lawful exercise of
Second Amendment rights (i.e., possessing firearms and attempting to
purchase ammunition) as a basis for issuing the GVRO.
Once again, neither the minute order from the GVRO hearing nor the
GVRO itself mentions anything about a Second Amendment issue having
been raised by Geoffrey. Geoffrey’s settled statement also does not state that
he raised a Second Amendment issue in the trial court. The settled
35
statement refers to the Second Amendment only in describing the issues
Geoffrey intended to raise on appeal. Thus, we conclude that Geoffrey
forfeited the Second Amendment issue for appeal. (Hepner, supra, 52
Cal.App.4th at p. 1486.)
Even if the issue were preserved, we would reject it on the merits for
the same reason we have rejected his First Amendment claim. Even if
Geoffrey’s conduct was protected by the Second Amendment, the trial court
was entitled to make evidentiary use of his possession of firearms and his
attempts to purchase ammunition—along with other relevant evidence—in
deciding whether he posed a significant danger of gun violence under the
GVRO statute. Like the First Amendment, the Second Amendment “does not
prohibit the evidentiary use” of protected conduct as part of the proof to
establish the required elements in a criminal or civil proceeding. (Mitchell,
supra, 508 U.S. at p. 489.) Otherwise, the Second Amendment would prohibit
the prosecution in a murder case from presenting evidence that the defendant
lawfully possessed a firearm matching the murder weapon. Accordingly, we
reject Geoffrey’s argument that the trial court violated the Second
Amendment by considering his lawful possession of firearms and his attempt
to purchase ammunition in deciding whether he posed a significant danger of
gun violence.
VII
Finally, Geoffrey argues that he was wrongly entered into the state and
federal firearms and ammunition background check databases. But the trial
court made no such order in the GVRO proceeding. We only have jurisdiction
to review the order Geoffrey is appealing; we do not have jurisdiction to
address other wrongs allegedly committed against him by unknown parties.
We therefore decline to decide this issue.
36
DISPOSITION
The one-year GVRO is affirmed. Respondent shall recover its costs on
19
appeal.
BUCHANAN, J.
I CONCUR:
AARON, Acting P. J.
19
We deny Geoffrey’s request for sanctions against the City Attorney
made for the first time in his supplemental brief.
37
Dato, J., Dissenting.
This case presents a classic question of statutory interpretation. When
it enacted the gun violence restraining order (GVRO) statutes in 2014 (Stats.
2014, ch. 872 (Assem. Bill No. 1014)), did the Legislature intend that all
forms of hearsay evidence should be admissible without limitation in a
noticed hearing seeking a GVRO? The Legislature’s intent with respect to
the meaning of a statute is not always crystal clear, and in this instance it
might be better characterized as opaque. It is therefore hardly surprising
that reasonable judges might disagree.
There is, however, a more fundamental question that will have much to
say about how we ultimately decide what the Legislature intended and what
the statutes mean. That is because the Legislature itself has provided a
framework within which we are to analyze questions about the admissibility
of hearsay. Evidence Code section 1200, subdivision (b) succinctly states the
generally applicable rule, “Except as provided by law, hearsay evidence is
inadmissible.” The issue we must decide is whether, in the case of GVROs,
the Legislature has otherwise “provided by law” for an exception. And to
determine if the Legislature intended an exception, we must first understand
the general rule.
The rule against hearsay evidence exists for one overriding and crucial
purpose: To make sure results in the courtroom are based on the truth. To
expose innocent fibs, outright falsehoods, and all types of fabrications in
between, witnesses are ordinarily required to personally appear in court,
affirm to tell the truth, and be subject to cross-examination. (See California
v. Green (1970) 399 U.S. 149, 158.) Courts have long recognized the
importance of cross-examination and its crucial role in ferreting out the
truth. (In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [“ ‘Cross-
examination is the principal means by which the believability of a witness
and the truth of his testimony are tested.’ ”].)
But it is impossible to cross-examine a witness who isn’t there. And in
this case, the deputy city attorney who appeared at the hearing merely
offered the court San Diego Police Department (Department) reports that
memorialized several police contacts with Geoffrey S. at his home over the
course of a week in April 2020, near the beginning of the COVID-19
pandemic. In addition to the observations of officers, these reports included
statements made by other, sometimes unidentified, persons. They also
summarized Facebook posts allegedly made by Geoffrey but did not attach
copies. At the same time, the Department’s presentation ignored—or at least
significantly downplayed—the numerous factual errors in the psychiatric
hospital’s intake report,1 as well as the fact that the hearing officer who
ultimately dismissed the Welfare and Institutions Code section 5150 hold
concluded that Geoffrey had “no known history of diagnosis or treatment” for
mental illness and “does not have a mental disorder.”2
Critically, not a single witness testified at the hearing, not even the
officers who authored the reports. The deputy city attorney merely argued
that the reports proved by clear and convincing evidence that a one-year
1
The report stated that Geoffrey “has a history of severe mental illness”
and was “eventually apprehended by police officers,” neither of which was
true. As evidence of his delusional mental state, the physician wrote, “The
patient continues to insist that he is an attorney and a real estate
practitioner,” which were both true.
2
Noting that “ ‘millions of Americans’ ” hold similar strange beliefs, the
hearing officer rhetorically asked hospital staff, “ ‘Do you believe that
everyone who has opinions similar to those held by [Geoffrey] should be
incarcerated in mental institutions?’ ”
2
GVRO should issue. The court’s minute order simply states, “The petitioner
has proved the case by a Clear and Convincing Evidence per California Penal
3
Code section 18157 (c)(d).”
The inability to employ cross-examination to expose “the many possible
deficiencies, suppressions, sources of error and untrustworthiness” of hearsay
evidence is the crux of the rule prohibiting it. (See Buchanan v. Nye (1954)
128 Cal.App.2d 582, 585.) Indeed, although Geoffrey (who is self-
represented) has not framed his appeal in due process terms, “in ‘almost
every setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.’ ”4
(Manufactured Home Communities, Inc. v. County of San Luis Obispo (2008)
167 Cal.App.4th 705, 711.) In short, both the Legislature and the courts of
this state have repeatedly recognized that the rule prohibiting the admission
of hearsay evidence is of fundamental importance in assuring a fair hearing.5
3
Further undesignated statutory references are to the Penal Code.
Because there is no section 18157, I assume the statutory reference is a
typographical error and the court in its minute order intended to cite section
18175.
4
The majority dismisses any due process concerns by pointing out that a
respondent can always subpoena hearsay declarants in order to cross-
examine them. (Maj. opn., ante, at p. 28.) Not only is this reasoning broad
enough to swallow the entire hearsay rule, but it also would effectively shift
the burden to respondents to prove that their possession of firearms does not
create an unreasonable risk of injury to others.
5
And this is not just a narrow California issue. The GVRO procedures
(Pen. Code, § 18100 et seq.) are California’s version of what is known
nationally as an Extreme Risk Protection Order (ERPO) or “Red Flag” law.
In June 2022, Congress passed and the President signed the Bipartisan Safer
Communities Act (Pub.L. No. 117-159). Among other things, this legislation
provides grants to states to fund ERPO programs. As a condition of receiving
3
To be sure, Evidence Code section 1200 itself recognizes that exceptions to
the hearsay rule are sometimes appropriate and that the Legislature can
“provide” for them. But given the importance of the rule, we should not
lightly imply exceptions or assume the Legislature meant to create them,
especially where they are based on ambiguous and diaphanous suggestions of
legislative purpose.
To decide if the Legislature wanted to create an exception to the
hearsay rule in this case, we would normally begin by examining the words of
the statute as the “ ‘the most reliable indications of the Legislature’s intent.’ ”
(Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 83, quoting
Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 487.) We would
construe those words in context, resolving uncertainties or ambiguities by
reference to extrinsic aids such as legislative history and taking into
consideration the Legislature’s purposes in enacting the legislation. (Ibid.;
see also Walker v. Superior Court (2021) 12 Cal.5th 177, 194 (Walker).)
In my view, the majority opinion starts down the wrong path in its first
sentence by focusing on Kaiser Foundation Hospitals v. Wilson (2011) 201
Cal.App.4th 550 (Kaiser)—a case that dealt with dissimilar language in an
entirely different statute—instead of looking to the words of the GVRO
statute, section 18175. Bypassing the relevant statutory language may be
understandable. As the Department candidly concedes, “California’s GVRO
funding, these state laws must meet certain due process requirements,
including “heightened evidentiary standards and proof” that “prevent
reliance upon evidence that is unsworn or unaffirmed, irrelevant, based on
inadmissible hearsay, unreliable, vague, speculative, and lacking a
foundation.” (34 U.S.C. § 10152(a)(1)(I)(iv)(III), italics added.) In other
words, the majority opinion construes California law as allowing what federal
law says must be excluded as a matter of due process—otherwise
inadmissible hearsay—in order to qualify for federal funding.
4
law is silent as to the admissibility of hearsay in a GVRO hearing . . . .”
Certainly “[n]othing in the language of the [statute] indicates the Legislature
created an explicit hearsay exception to allow hearsay” in noticed hearings
requesting a GVRO. (See Walker, supra, 12 Cal.5th at p. 195.) Indeed, the
word “hearsay” never appears in section 18175. Neither is there any
statement indicating that the usual “rules of evidence” do not apply. (Walker,
at p. 200.) Had the Legislature intended a broad hearsay exception, it would
have been a simple matter to say so. It did not. And this, in itself, should
give us pause.
The majority opinion avoids grappling with these difficult issues by
suggesting this case is just like Kaiser. But is it? Kaiser involved Code of
Civil Procedure section 527.8, subdivision (j), which provides that at the
hearing for a workplace violence restraining order, “the judge shall receive
any testimony that is relevant . . . .” (Italics added.) Did the Legislature
mean by this that relevance is the only criterion for admissibility, or simply
that the court should consider any relevant testimony that is otherwise
admissible? Even the conditional language of the opinion suggests the
answer is less than clear. (Kaiser, supra, 201 Cal.App.4th at p. 557
[“Subdivision (f) of [Code of Civil Procedure] section 527.8 appears to be one of
the exceptions to Evidence Code section 1200, subdivision (b)” (italics
added)].) There is no mention of legislative history, and the opinion
acknowledges that “we have found very little guidance in the case law.”
(Kaiser, at pp. 556‒557.) Nonetheless, according to Kaiser, the “plain
language of this provision” means that the Legislature “intended to permit a
trial court to consider all relevant evidence, including hearsay, when deciding
whether to issue an injunction to prevent workplace violence pursuant to
section 527.8.” (Kaiser, at p. 557.)
5
6
Even if we accept that proposition, the language of the GVRO statute
is quite different from that used in Code of Civil Procedure section 527.8,
subdivision (j). As noted in Kaiser, a direction to the trial court to “receive
any testimony that is relevant” at least “suggests” a rule of admissibility
where relevance is the only standard. (Kaiser, supra, 201 Cal.App.4th at
p. 557, italics added.) In contrast, section 18175, which governs noticed
hearings seeking a GVRO, merely says that the trial court “shall consider
evidence” of certain factors listed in a different statute (§ 18155, subd. (b)(1))
and “may consider any other evidence of an increased risk for violence . . . .”
(§ 18175, subd. (a).) There is no articulated standard for admissibility,
relevance or otherwise. In my view, this is hardly language that manifests a
clear legislative intent to abandon the hearsay rule and its crucial role in
assuring a fair hearing.
There are other critical differences in the two statutory schemes. Code
of Civil Procedure section 527.8, the workplace violence restraining order
statute, provides for issuance of a temporary restraining order if the
petitioner submits a declaration “show[ing] reasonable proof that an
employee has suffered unlawful violence or a credible threat of violence by
6
There is one part of the Kaiser analysis that especially concerns me.
The statutory language relied on to establish an exception to the hearsay rule
tells the court to “receive any testimony that is relevant.” (Code of Civ. Proc.,
§ 527.8, subd. (j), italics added.) In reaching its conclusion, the opinion
substitutes “evidence” for “testimony” so that it purports to hold that all
relevant evidence is admissible. (Kaiser, supra, 201 Cal.App.4th at p. 557.)
But while all testimony may be evidence, not all evidence is testimony and
the Legislature is presumed to know the difference. (In re Jessica B. (1989)
207 Cal.App.3d 504, 518.) At best, then, Code of Civil Procedure section
527.8 should be read to permit in-court testimony that includes hearsay
statements. And in-court testimony was precisely what was missing from the
hearing in this case.
6
the respondent, and that great or irreparable harm would result to an
employee.” (Id., subd. (e).) The GVRO statutes similarly provide for issuance
of temporary orders of limited duration prior to a formal hearing, but they
specify two different types of temporary orders—emergency and ex parte—
and identify in considerably greater detail what has to be submitted and how
that submission will be evaluated. Different standards also apply to
temporary orders as compared to orders issued after a noticed hearing.
Because a request for a GVRO can arise in a variety of factual
settings—from a crisis requiring an immediate response to a low level
possible future threat and everything in between, there are different
standards and evidentiary rules depending on the exigency and duration of
the restraining order. For example, a 21-day “emergency” GVRO may (and
as a practical matter almost always will) issue on nothing but the hearsay
affidavit of the law enforcement officer who responded to the crisis.
(§ 18125.) Slightly less urgent, a 21-day “ex parte” GVRO can issue at the
request of someone other than a law enforcement officer. (§ 18150.) In-court
testimony is generally required; however, the court has discretion to allow an
affidavit instead. (§ 18155, subd. (a)(1)‒(2).) Finally, a long term restraining
order lasting up to five years—the type we deal with in this case—can issue
only after a noticed hearing. The table below summarizes these distinctions:
7
Emergency Ex Parte Noticed Hearing
Reasonable cause A substantial The subject poses a
Standard
to believe the likelihood that the significant danger
for Issuing
subject poses an subject poses a of gun violence.
the GVRO
immediate and significant (§ 18175, subd.
present danger of danger, in the (b)(1).)
gun violence. near future, of
(§ 18125, subd. gun violence.
(a)(1).) (§ 18150, subd.
(b)(1).)
Scope of Hearsay affidavit Oral testimony in The court “shall
Admissible of law court or affidavit consider evidence
Evidence enforcement under oath, plus of the facts
officer admissible. “any additional identified” in
(§§ 18125, subd. information section 18155,
(a), 18140, subd. provided to the subdivision (b)(1)
(a).) court . . . .” and “may consider
(§§ 18150, subds. any other evidence
(b), 18155, subd. of an increased
(a)(2).) risk for
violence . . . .”
(§ 18175, subd.
(a).)
In general, as the urgency decreases, the need to dispense with
evidentiary rules and procedural protections should decrease as well. Both
types of temporary orders provided for in the statute require, at a minimum,
a statement under oath. In the case of the “emergency” order where the
urgency is the greatest, a limited class of persons (a law enforcement officer)
is permitted to submit an affidavit. The slightly-less-urgent “ex parte” order
can be requested by a broader class of petitioners but, generally speaking,
requires in-court testimony under oath before the judge.
8
Yet the interpretation of section 18175 proffered by the majority turns
this apparent logic on its head by applying the least restrictive evidentiary
rule—all hearsay is admissible without the necessity of any testimony or
affidavit under oath—to the proceeding with the least exigency, a request to
7
issue a restraining order after a noticed hearing. Wouldn’t we expect just
the opposite—more relaxed evidentiary rules to obtain a temporary
emergency order, to be confirmed at a formal hearing with the usual and
customary evidentiary protections? To put it another way, if the Legislature
intended that nothing more than an unsworn police report would permit
issuance of an order suspending for five years a citizen’s constitutionally
protected property interest, why would it require substantially more—i.e., a
sworn affidavit or in-court testimony—to issue a 21-day temporary order
addressing a demonstrable exigency?
It is true that as to one narrow category of hearsay evidence in GVRO
proceedings, the Legislature did recognize an explicit exception to the
hearsay rule. Subdivision (b)(2)(F) of section 18155 expressly permits the
court to consider “[d]ocumentary evidence, including, but not limited to,
police reports and records of convictions, of either recent criminal offenses by
the subject of the petition that involve controlled substances or alcohol or
ongoing abuse of controlled substances or alcohol by the subject of the
petition.” The majority opinion construes this express hearsay exception as a
7
By the time of the noticed hearing in this case, the Department was
making no claim of any exigency or imminent risk of gun violence. Indeed,
although the settled statement is not completely clear, at oral argument the
parties specifically agreed that while Geoffrey was confined in the psychiatric
hospital, his shotguns were seized by police. (See generally §§ 1524, subd.
(a)(14), 1542.5.) Moreover, the Department offered no evidence that Geoffrey
made any threats after his release from the psychiatric hospital following the
Welfare and Institutions Code section 5150 hold.
9
“signal” that the terms “evidence” and “any other evidence” in section 18175
include hearsay evidence. (Maj. opn., ante, at pp. 21‒22.) I believe the more
compelling inference is that the Legislature never intended hearsay to be
fully admissible under section 18175, subdivision (a). If it had, there would
be no need to carve out a specific hearsay exception for documentary
evidence, and the exception under section 18155, subd. (b)(2)(F) would be
superfluous.
Anticipating this inference, the majority suggests there is no “rational
reason” why the Legislature would create a narrow hearsay exception for
evidence of alcohol or substance abuse, but not for threats of harm or other
evidence of an increased risk for violence. (Maj. opn., ante, at p. 22.) But the
language of section 18155, subdivision (b)(2)(F)—creating a very narrow
exception—is clear and unambiguous. As to why it is narrow, there is
already a well-recognized hearsay exception in the Evidence Code for a party
admission. (Evid. Code, § 1220.) Thus, so long as a percipient witness
testifies at the hearing (e.g., “I heard the defendant threaten to harm X”),
that testimony would not be made inadmissible by the hearsay rule. It is not
that the Evidence Code makes it too difficult for the Department to prove its
case. The problem here is that the Department—the party with the burden
of proof by clear and convincing evidence—failed to offer a single witness to
testify to any aspect of any supposed threat.
There is yet an additional reason why I find it difficult to interpret the
language of section 18175 as demonstrating the Legislature’s intent to create
a wholesale hearsay exception for GVROs issued after a noticed hearing.
Kaiser was decided in 2011, nearly three years before the 2014 passage of
Assembly Bill No. 1014 that created the GVRO procedures. Right or wrong,
by 2014 Kaiser provided an established blueprint for creating a broad
10
hearsay exception in the context of restraining orders. The statute need only
provide that the court shall receive and consider “any testimony that is
relevant.”
In drafting Assembly Bill No. 1014, however, the Legislature did not
adopt that language or otherwise use Code of Civil Procedure section 527.8 as
a model. Indeed, the legislative history reflects that the authors modeled
their bill not on the workplace violence legislation at issue in Kaiser, but
rather on the Family Code’s domestic violence restraining order statutes
enacted many years earlier. (Sen. Com. on Public Safety, conc. of Assem. Bill
No. 1014 (2013‒2014 Reg. Sess.) Aug. 29, 2014, p. 7 com.) This is readily
apparent in the common structure of the two statutory schemes. Like the
GVRO process, the domestic violence statutes provide for (1) emergency
restraining orders, (2) ex parte orders, and (3) orders issued after a noticed
hearing. (See Fam. Code, § 6250 [compare with Pen. Code, § 18125]; Fam.
Code, §§ 6300, subd. (a), 6320 [compare with Pen. Code, §§ 18150‒18165]; and
Fam. Code, § 6340 [compare with Pen. Code, §§ 18170‒18197].) Significantly,
courts have applied the hearsay rule, or assumed it applied, in noticed
hearings for domestic violence restraining orders. (See, e.g., In re Marriage of
Everard (2020) 47 Cal.App.5th 109, 115 [noting that certain documentary
evidence was received “under the business records exception to the hearsay
rule” and its contents were admissible under the exception for party
admissions]; Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 828, fn. 3 [trial
court applied hearsay rule in a domestic violence restraining order hearing];
M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1142 [trial court sustained hearsay
objections in domestic violence restraining order hearing].)
11
Where the Legislature has crafted a rule of general application, based
on principles of due process, that it has expressly decreed should be applied
except as provided otherwise, we should be certain the Legislature has in fact
provided otherwise. Unlike the majority, I find the evidence of such a
legislative intent in the GVRO statutes thin and unconvincing at best. And
the Kaiser decision, interpreting a different statute addressing a different
issue using different language, cannot supply what the Legislature has failed
to provide.
DATO, J.
12