In re Villafane CA4/1

Filed 12/16/22 In re Villafane CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ROMUALDO VILLAFANE D080440
on
(San Diego County
Habeas Corpus. Super. Ct. No. 17FL003562S)
CLEUSILENE VILLAFANE,
Real Party in Interest.
ORIGINAL PROCEEDING on petition for writ of habeas corpus.
Petitions denied. Remanded with instructions.
John L. Staley, by appointment of the Court of Appeal, for Petitioner.
No appearance for San Diego Sheriff’s Department, Respondent.
Sheila O’Connor, by appointment of the Court of Appeal, for Real Party
in Interest.
INTRODUCTION
The trial court found Romualdo Villafane guilty of three separate
counts of contempt for violating child custody orders made during the
pendency of a marital dissolution proceeding between him and Cleusilene
Villafane.1 The court sentenced Romualdo to 96 hours in county jail on one
count, and 120 hours in county jail, suspended pending compliance with
additional court orders, on each of the other two counts. Romualdo filed a
“Petition of Writ,” which this court construed as a petition for writ of habeas
corpus, challenging the orders and requesting a stay of the sentence. We
issued a temporary stay and an order directing the respondent, the San Diego
County Sheriff’s Department (the Sheriff’s Department), to show cause why
the relief should not be granted. We also appointed counsel for Romualdo
and directed counsel to file a supplemental petition. The Sheriff’s
Department declined to file a return, but real party in interest, Cleusilene,
filed a response, and asks this court to treat it as a return. We decline to
treat the response as a return, but conclude, after reviewing the
supplemental petition and response, that Romualdo has failed to
demonstrate he is entitled to relief. Consequently, we are compelled to deny
both the original and supplemental petitions, remand the matter to the trial
court to set a new date upon which Romualdo must present himself to the
San Diego County Central Jail, and vacate the temporary stay.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Trial Court Proceedings
Romualdo and Cleusilene have two children together. They have been
involved in dissolution and child custody proceedings since at least 2017.
In October 2021, Cleusilene initiated contempt of court proceedings
against Romualdo by filing an order to show cause and affidavit for
1 We refer to Romualdo and Cleusilene Villafane by their first names to
avoid confusion. No disrespect is intended.
2
contempt.2 Cleusilene alleged Romualdo willfully disobeyed six separate
court orders. Relevant here, Cleusilene asserted, in count 1, that Romualdo
willfully failed to attend the Kids’ Turn Family Workshop as ordered by the
trial court on at least three separate occasions. In count 5, she asserted
Romualdo willfully took their daughter on vacation without providing the
requisite notice and basic itinerary before departure. And, in count 6,
Cleusilene asserted Romualdo willingly disobeyed another court order by
taking their daughter from a recreation center event on Cleusilene’s custodial
time without her knowledge or consent.
The trial court held a hearing on the contempt charges on April 6, 2022.
Cleusilene testified in support of the order to show cause. Romualdo was
represented by appointed counsel, but chose not to testify, and instead
invoked his Fifth Amendment privilege against self-incrimination when
Cleusilene’s counsel asked to question him. After taking the matter under
submission, the trial court issued a written order finding Romualdo guilty on
counts 1, 5, and 6. The court found Romualdo not guilty on the remaining
charges; not because he complied with the underlying orders, but because the
2 Code of Civil Procedure section 1211, subdivision (a), provides, in
relevant part, “[w]hen the contempt is not committed in the immediate view
and presence of the court, or of the judge at chambers, an affidavit shall be
presented to the court or judge of the facts constituting the contempt, or a
statement of the facts by the referees or arbitrators, or other judicial officers.”
Relevant here, subdivision (b), states, further, “[i]n family law matters, filing
of the Judicial Council form entitled ‘Order to Show Cause and Affidavit for
Contempt (Family Law)’ shall constitute compliance with this section.” (Code
Civ. Proc., § 1211, subd. (b).) All further undesignated statutory references
are to the Code of Civil Procedure.
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orders were either vague or not executed by the date upon which he was
ordered to comply.3
The trial court held a separate hearing to discuss sentencing on May 4,
2022. Romualdo’s counsel argued the court should stay any jail sentence it
might impose pending probation since this was the first time Romualdo had
been found guilty of contempt. He represented that Romualdo was ready and
willing to cooperate with any terms of probation, including compliance with
any outstanding orders. Cleusilene’s counsel responded that jail time was
appropriate for at least one of the counts, because Romualdo had a history of
contemptuous and vexatious conduct before the court, and had now been
found guilty on three separate counts of contempt.
Towards the end of the hearing, Romualdo asked to speak on his own
behalf. He asserted his appointed counsel had provided ineffective assistance
of counsel, and asked the trial court to reconsider its previous findings of
contempt as a result. He told the court he had given his attorney “tons of
exculpatory evidence” but counsel failed to present the evidence in his
defense. He said he did not attend the Kids’ Turn program because
Cleusilene did not follow the original order that the family attend together,
and then did not make their oldest daughter available to attend with him.
Regarding count 5, he asserted that he did give Cleusilene notice of the
vacation dates. He conceded that he “forgot” to give her more detailed
information regarding the trip, but asserted he did provide the information
3 Cleusilene listed six counts in her order to show cause and affidavit for
contempt, but also checked a box requesting attorney fees and costs, and
included additional facts regarding unpaid sanctions. The trial court appears
to have construed these additional claims as count 7, which it then dismissed
without prejudice for lack of specificity in the pleadings.
4
the same day that she asked. Finally, he asserted the violation alleged in
count 6 was previously addressed in the context of a hearing on Cleusilene’s
request for a domestic violence restraining order, which the court denied. In
response, Cleusilene’s counsel reminded the court that Romualdo had elected
not to testify at the previous hearing. The trial court declined to reconsider
its ruling.
In a written order dated May 6, 2022, the trial court sentenced
Romualdo to 96 hours in the county jail on count 1. The court ordered that he
present himself at the jail for processing at 8:00 a.m. on May 27. The court
sentenced Romualdo to 120 hours in county jail on each of counts 5 and 6, but
suspended the sentences on the condition that he complete the Kids’ Turn
workshop by September 1, 2022, and that he comply with certain other orders
of the court by their specified dates.
II.
Appellate Court Proceedings
On May 25, 2022, just two days before he was to present himself to the
county jail, Romualdo filed a “Petition of Writ” and request for an immediate
stay of the trial court’s sentencing order in this court.4 Romualdo was not
represented by counsel. He argued that his appointed trial counsel was
ineffective for having failed to present exculpatory evidence, double jeopardy
applied, and the sentence was cruel and unusual. He provided copies of
communications with his lawyer, in which he provided the allegedly
4 In the petition, Romualdo alleged he filed a motion for reconsideration
of the contempt charges and an ex parte request to stay the sentence in the
trial court, but the trial court refused to hear both motions without
explanation. He provided copies of his own filings, but did not include any
corresponding orders from the trial court.
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exculpatory evidence, but did not include transcripts from the trial court
proceedings. He further asserted the sentence would result in significant
negative employment impacts and place him in severe risk of physical harm
because he was employed as a federal law enforcement officer.
On May 25, 2022, this court issued an order temporarily staying the
trial court’s order that Romualdo present himself to the San Diego County
Central Jail on May 27. The next day, we issued an additional order
appointing counsel for Romualdo, directing appointed counsel to file a
supplemental petition, and ordering the Sheriff’s Department to show cause
why the relief requested should not be granted. The order specified:
“Respondent may file a return within 30 days after the supplemental petition
is filed. Real party in interest Cleusilene Villafane may file a response to the
supplemental petition within 30 days after the supplemental petition is
filed.” Cleusilene then filed a motion for appointed counsel, which we
granted.
In his supplemental petition, prepared by appointed counsel, Romualdo
asserts the trial court abused its discretion by sentencing him to 96 hours in
county jail; there was insufficient evidence to support the conviction on count
5; and his appointed trial counsel was ineffective for having failed to present
exculpatory evidence and/or defenses as to counts 1 and 6. After the
supplemental petition was filed, Cleusilene filed a motion informing this
court that the Sheriff’s Department would not be filing a return and
requested that her response be treated as the return. We deferred
Cleusilene’s request to be considered with the merits. Cleusilene filed a
response in the form of a return, and Romualdo filed a “traverse to reply”
(capitalization omitted), but neither party addressed Cleusilene’s pending
motion to treat her response as a return.
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DISCUSSION
I.
Cleusilene’s Request to Treat Her Response as a Return Is Denied
Before turning to the merits of Romualdo’s original and supplemental
petitions, we address Cleusilene’s request that we treat her response as a
return, and hereby deny it.
A writ of habeas corpus challenges the legality of an individual’s
confinement, and, thus, it is typically the custodian—or, as in this case, the
constructive custodian—of the confined person that submits a return
justifying the confinement. (See People v. Duvall (1995) 9 Cal.4th 464, 475;
see also People v. Romero (1994) 8 Cal.4th 728, 738 [“the order to show cause
‘directs the respondent custodian to serve and file a written return’ ”].) Here,
the trial court ordered Romualdo to present himself to the San Diego County
Jail to serve his 96-hour sentence, so the Sheriff’s Department is both the
constructive custodian and the respondent. As noted, though, the Sheriff’s
Department declined to file a return.
Cleusilene asserts we should consider her response as a return because
she is the party that will be most affected by the trial court’s order. But it is
undisputed that she is not the custodian, and she provides no authority
establishing the right of any party other than the custodian to file a return to
a writ of habeas corpus.
As Cleusilene points out, rule 8.385 of the California Rules of Court
allows the reviewing court to request an informal response to a petition for
writ of habeas corpus from either the respondent, the real party in interest,
or any other interested person before ruling on the petition. (Cal. Rules of
Court, rule 8.385, subd. (b)(1).) Rule 8.385 states that if the petitioner has
made the required prima facie showing, the reviewing court “must issue an
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order to show cause,” and “may order the respondent to file a return” in the
superior court, or, alternatively, in the reviewing court. (Id., subds. (d)−(f),
italics added.) Rule 8.386 governs if the court issues an order to show cause
returnable to the reviewing court, and states, “[u]nless the court orders
otherwise, any return must be served and filed within 30 days after the court
issues the order to show cause.” (Cal. Rules of Court, rule 8.386, subd. (b)(1).)
Neither rule contemplates the filing of a return from any party other than the
respondent, and Cleusilene provides no other authority indicating this court
may consider a response by a real party in interest as a return in this
context.
We have considered the legal arguments presented in Cleusilene’s
response, but hereby deny her request to treat the response as a return.
II.
Romualdo Has Failed to Demonstrate He Is Entitled to Relief
As the petitioner in a habeas corpus proceeding, Romualdo bears the
burden of pleading and proving sufficient grounds for relief. (In re Champion
(2014) 58 Cal.4th 965, 1006−1007; In re Serrano (1995) 10 Cal.4th 447, 456.)
Even where the reviewing court finds the petitioner has made the required
prima facie showing and issues an order to show cause, the petitioner must
still prove facts establishing a basis for relief by a preponderance of the
evidence. (Champion, at p. 1007.) In the absence of a return, the reviewing
court will generally accept the undisputed factual allegations in the petition
as true. (Serrano, at p. 456.) However, the record itself may contain facts
that contradict or refute allegations made in the petition. (Ibid.)
Here, after reviewing the supplemental petition, and the associated
record, we conclude Romualdo has not met his burden of proving sufficient
grounds for relief.
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A. Sufficient Evidence Supports the Conviction on Count 5
Romualdo contends, in his supplemental petition, that the evidence
was insufficient to support a finding of guilt as to count 5. Count 5 alleged
Romualdo willfully took the couple’s daughter on vacation without providing
Cleusilene with the court-ordered notice and basic itinerary before departure.
“The elements of proof necessary to support punishment for contempt
are: (1) a valid court order, (2) the alleged contemnor’s knowledge of the
order, and (3) noncompliance.” (In re Marcus (2006) 138 Cal.App.4th 1009,
1014.) “The order must be clear, specific, and unequivocal,” and the failure to
comply must be willful. (Ibid.; In re Grayson (1997) 15 Cal.4th 792, 794.) “In
writ proceedings to review an adjudication of contempt, our inquiry is
whether there was any substantial evidence before the trial court to prove
the elements of the contempt.” (In re Marcus, at p. 1015.)
The trial court found: (1) The court issued a valid order on three
separate occasions that stated: “Either parent may vacation with the
children each year for up to four weeks or two weeks twice a year. The
vacationing parent shall notify the other parent in writing of their vacation
plans a minimum of 30 days prior to departure and shall provide the other
parent with a basic itinerary to include dates of departure and return,
destinations, flight information and telephone numbers for emergency
contact.” (2) Romualdo was present, either in court or virtually by video
conference when the court issued the orders. And (3) Romualdo “violated the
orders by failing to provide [Cleusilene] with a basic itinerary to include
dates of departure and return, destinations, flight information and telephone
numbers for emergency contact.”
Romualdo does not dispute that the orders were valid or that he had
knowledge of them. He asserts only that the evidence was insufficient to
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prove that his violation of the orders was willful. The record does not support
his contention. The evidence at trial established that Romualdo told
Cleusilene, in January 2021, “[b]oth girls will be on vacation with me for the
month of June.” He did not notify Cleusilene that they would be traveling
outside the state and did not provide the court-ordered basic itinerary.
Cleusilene only found out that they were traveling because her daughter
mentioned it to her the day before their departure. And, even then, despite
Cleusilene’s repeated requests, Romualdo failed to provide complete
information regarding their itinerary.
Romualdo argues Cleusilene did not ask for additional information
until after they left, but nothing in the order required Cleusilene to
affirmatively ask for the itinerary. Rather, the order required Romualdo, as
the vacationing parent, to provide “a basic itinerary to include dates of
departure and return, destinations, flight information and telephone
numbers for emergency contact.” The evidence presented by Cleusilene
established that he did not do as he was ordered.
We therefore conclude the record itself, including the hearing
transcripts provided in the supplemental petition, contains substantial
evidence to support the conviction on count 5.
B. Romualdo Has Failed to Establish His Appointed Trial Counsel Was
Ineffective
Romualdo asserts further, in both his original and supplemental
petitions, that his trial counsel provided ineffective assistance of counsel by
failing to present exculpatory evidence. In his original petition, he alleged
generally that his counsel failed to provide exculpatory evidence as to each of
the three counts on which he was convicted. In the supplemental petition, he
has limited his claim of ineffective assistance of counsel as to counts 1 and 6
only. Specifically, he asserts his trial counsel failed to present a mistake-of-
10
fact defense as to count 1, and that he failed to present exculpatory evidence
as to count 6.
To obtain relief in a habeas corpus proceeding on a claim of ineffective
assistance of counsel, the petitioner must prove counsel’s “ ‘ “ ‘performance
was deficient because it “fell below an objective standard of reasonableness
. . . under prevailing professional norms.” ’ ” ’ ” (In re Hernandez (2019) 33
Cal.App.5th 530, 543, quoting People v. Salcido (2008) 44 Cal.4th 93, 170.)
“ ‘ “ ‘If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel
must be rejected “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory
explanation.” ’ ” ’ ” (In re Hernandez, at pp. 543–544, italics added.) “ ‘ “ ‘If a
defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in
prejudice, that is, a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” ’ ” ’ ” (Id. at p. 544.)
Romualdo has not shown that his counsel’s performance was deficient,
or that he was prejudiced as a result. Romualdo does not provide any
evidence of trial counsel’s reasons for failing to present the allegedly
exculpatory evidence. He does not provide a declaration from trial counsel,
nor does he provide any explanation for the omission. Regardless, Romualdo
has not established the failure to present the asserted mistake-of-fact defense
or the failure to provide the allegedly exculpatory evidence would have
resulted in a better outcome as to any of the asserted counts of contempt.
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1. Count 1
Count 1 alleged that Romualdo willfully failed to attend the Kids’ Turn
Family Workshop as ordered by the trial court on at least three separate
occasions. Here, Romualdo asserts he told his trial counsel that he “believed
it was permissible to pursue counseling through his work offered insurance in
lieu [of] attending the Kids’ Turn Family Workshop,” but counsel did not
present the evidence or argue a mistake-of-fact defense at the hearing.
Romualdo relies exclusively on the original order, from December 2017,
in which the trial court adopted a Family Court Services (FCS)
recommendation and ordered that the family “shall complete [the] Kids’ Turn
Family Workshop together” and “Parents shall enroll by 12/29/17.” The order
goes on to state, in a different paragraph, “[p]ossible resources include:
private insurance.” Romualdo asserts he told his attorney that he believed
this language permitted him to attend an alternate free program through his
work, that Cleusilene and the children completed the Kids’ Turn Family
Workshop without him, and that he tried several times to get Cleusilene to
enroll the children in the free program provided by his work, but his attorney
failed to present the evidence at the contempt hearing. The claim fails for
two reasons.
First, “[w]hen a person commits an act based on a mistake of fact, his
guilt or innocence is determined as if the facts were as he perceived them.”
(People v. Scott (1983) 146 Cal.App.3d 823, 831, italics added.) Romualdo did
not testify, as it was his right, at the contempt hearing. But without
Romualdo’s testimony, there was no way to establish his perceived
understanding of the order and, thus, no way to prove the defense. And,
although he provides a declaration setting forth his alleged misperception in
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this court, he does not explain why he did not testify in the trial court, or
assert that he would have done so absent advice from appointed counsel.
Second, even if the asserted evidence were presented, Romualdo’s
mistake-of-fact defense lacks merit. The December 2017 order was the first
of several orders requiring Romualdo to attend the Kids’ Turn workshop. In
January 2020, the trial court adopted another set of FCS recommendations
dated August 6, 2019, which required Romualdo, on his own, to “enroll in and
successfully complete the Kids’ Turn . . . co-parenting program . . . by March
1, 2020.” Romualdo apparently failed to comply with that order as well, and
in November 2020, the court once again adopted FCS recommendations that
similarly required Romualdo, alone, to “enroll in and successfully complete
the Kids’ Turn . . . co-parenting program . . . by January 30, 2021.” The
second and third orders make no mention of private insurance or any other
program. However, they do contain separate provisions requiring all four
family members to also participate in individual counseling. The trial court
referenced each of these three orders in its written contempt order, and
specifically stated that Romualdo “was present virtually via MS Teams on
November 10, 2020 when the court again ordered [him] to attend the [Kids’]
Turn Workshop.” (Italics added.) Romualdo does not dispute he was aware
of these subsequent orders, and does not provide any explanation for his
failure to attend the workshop even after the court reiterated, twice, that he
was required to do so.
2. Count 6
Count 6 alleged Romualdo willingly disobeyed another court order by
taking their youngest daughter from a recreation center event on Cleusilene’s
custodial time without her knowledge or consent. Romualdo admits he took
their daughter from the recreational center on Cleusilene’s parenting time
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without Cleusilene’s permission. He asserts, however, that the trial court
also ordered that both parents were to “ ‘ensure that the children shall
always be under the supervision of a competent adult during his/her
parenting time,’ ” and that his trial counsel failed to present evidence that his
daughter was not under adult supervision when he arrived at the
center. This argument fails for the simple reason that Romualdo provides no
argument or authority, and we are not aware of any, to establish that
Cleusilene’s alleged violation of a different order somehow justified or
excused his own violation.
Further still, the only evidence Romualdo offers to support the
contention is his own statement that he did not see any adults supervising
the children when he arrived at the center.5 But, as we have already
explained, Romualdo chose not to testify at the hearing. Thus, when counsel
raised a similar argument at the conclusion of the hearing, the trial court
interrupted and stated: “Well, no. . . . there’s no testimony from Mr.
Villafane about these contentions. You can’t argue that.” Romualdo now
says he would have been willing to testify to that fact, but, again, he provides
5 Although the record before this court does not include an actual copy, it
does contain references by both parents to a sign-in sheet maintained by the
recreation center on the night of the alleged incident, the presence of which
at least suggests that there was some level of adult supervision during the
event.
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no explanation as to why he did not testify, nor does he allege that trial
counsel improperly advised him against testifying.6
3. Count 5
Although he does not raise it in his supplemental petition, to the extent
Romualdo intended to assert that his counsel provided ineffective assistance
as to count 5 in his original petition, that claim fails as well. Count 5 alleged
Romualdo willfully took the couple’s daughter on vacation without providing
Cleusilene with the required notice and basic itinerary before departure.
Romualdo contends he told his trial counsel that he did tell Cleusilene about
the vacation in advance, but that he did not give her an itinerary because his
precise plans were in flux and he believed she would ruin the vacation if she
had the information.
The only evidence Romualdo provided to his trial counsel, beyond his
own self-serving statement, is a set of text messages in which he told
Cleusilene that he was taking the girls for vacation in June (without
providing an itinerary), and the same exchange that Cleusilene submitted to
the trial court, in which he provided flight information after they had already
left. As with the other claims, Romualdo has not established that he would
have testified in his own defense absent the advice of his trial counsel. And,
regardless, in the notes he provided to his trial counsel, Romualdo essentially
6 In his original petition, Romualdo asserted a claim of double jeopardy
and alleged that “the same alleged offense” was previously adjudicated. A
review of the record reveals the prior proceeding was a hearing on a
restraining order, in which one of the contentions was that Romualdo took his
daughter from the recreation center without permission and refused to return
her until Cleusilene notified the police. The trial court found Romualdo “has
shown bad judgment, but no domestic violence,” and denied the request for a
restraining order. In doing so, the court made no findings as to whether
Romualdo’s actions violated any court orders.
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conceded that he intentionally did not comply with the order because he was
worried that Cleusilene would interfere with his travel plans if she had a
complete itinerary. Again, he presents no argument or authority establishing
that his concerns somehow excused him from failing to obey a court order.
C. Romualdo Has Failed to Demonstrate the Trial Court Abused Its
Discretion by Its Sentencing Choice
Romualdo’s final contention is that the trial court’s order sentencing
him to 96 hours in county jail was “excessive” and an abuse of discretion. We
review the trial court’s sentencing decision only for an abuse of that
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376−377.) In doing so,
“we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not
be set aside on review.” ’ ” (Ibid.) “Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts
establish that a trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree with it.” (Id.
at p. 377.)
Applying these standards, we conclude Romualdo has not met his
burden in establishing an abuse of discretion. He asserts only that his
violations were “minor” and this was his first time being found guilty of
contempt. But as he concedes, the relevant statute provides, “[u]pon a first
finding of contempt, the court shall order the contemner to perform
community service of up to 120 hours, or to be imprisoned up to 120 hours,
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for each count of contempt.” (§ 1218, subd. (c)(1)(A), italics added.) The
statute makes no mention of aggravating or mitigating factors, or anything
else the trial court must consider when imposing a sentence. Rather, the
trial court has discretion to choose the appropriate sentence so long as it
complies with the statute, which expressly permits the imposition of jail time
of up to 120 hours, even for a first offense. (See In re Stanley (1981) 114
Cal.App.3d 588, 592 [“Petitioner’s additional argument that the sentence
imposed was an abuse of discretion is without merit; the penalty is well
within statutory limits.”].)
Cleusilene’s counsel asserted Romualdo had a history of being overly
litigious and failing to comply with court orders, and argued jail time was
necessary to address these ongoing abuses. The trial court apparently agreed
and exercised its discretion to impose jail time of less than 120 hours on
count 1. Although harsh, Romualdo has failed to establish the court abused
its discretion by doing so. Even if we believe the trial court could have made
a different sentencing decision, on the record before us, we see no basis to
conclude the sentence was impermissibly excessive or unjust.7
Romualdo also asserted, in his original petition, that the sentence was
cruel and unusual because it would expose him to risk of physical harm and
loss of income. Romualdo does not maintain these claims in his supplemental
petition, nor does he provide any evidence to support them. Romualdo did
not file a declaration, or any evidence regarding his employment, with his
original petition, and although he did provide declarations with both the
7 Unfortunately, the contentious circumstances of this custody dispute
are not uncommon in family law cases. We do not mean to signal by the
result here that family courts should routinely impose jail time for violations,
even repeat violations, of child custody orders.
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supplemental petition and the traverse, neither address his employment
status or the alleged impact of his position as a federal officer.8 Accordingly,
Romualdo has not established that he is entitled to relief on these grounds.
DISPOSITION
The original petition and the supplemental petition are denied, and the
matter is remanded to the superior court to set a new date upon which
Romualdo must present himself to the San Diego County Central Jail. The
stay issued by this court on May 25, 2022, is vacated.
DO, J.
WE CONCUR:
IRION, Acting P. J.
BUCHANAN, J.
8 In the declaration attached to the “Traverse to Reply” (some
capitalization omitted), Romualdo avers that he has now completed the Kids’
Turn program. He concedes his belated compliance is not a defense, but asks
this court to consider it as a mitigating factor. We have done so but are not
persuaded that compliance at this point should mitigate the sentence
imposed.
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