Sweezey v. Virelas CA1/4

Filed 4/27/23 Sweezey v. Virelas CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
MELISSA SWEEZEY,
Plaintiff and Respondent, A162141
v. (Contra Costa County Super. Ct.
ANTONIO VIRELAS, No. MSD20-00658)
Defendant and Appellant.
Antonio Virelas appeals from the trial court’s issuance of a one-year
domestic violence protective order against him based on his disturbing the
peace of his former girlfriend, Melissa Sweezey. Virelas contends there is not
sufficient evidence to support the court’s ruling. We disagree and affirm.
I. BACKGROUND
In February 2020, Sweezey, then 50 years old, filed a request for a
five-year domestic violence restraining order (DVRO) and a supporting
declaration against Antonio Virelas, then 48 years old, in Contra Costa
County Superior Court. In her declaration, Sweezey stated that Virelas had
lived with her for 13 years, relying on Sweezey for financial support, and that
they had an 11-year-old daughter together. Sweezey stated that Virelas “has
been verbally abusive towards me since the beginning of our relationship and
has recently in 2018 become sexually abusive towards me on a weekly basis.
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[Virelas] is verbally abusive towards our daughter and consistently bullies
her. On several occasions, [Virelas] has threatened to take our daughter and
leave without my consent.” Virelas “verbally abuses me calling me ‘stupid
fucking bitch,’ ” and “has been verbally abusive towards me for all thirteen
years of our relationship . . . .”
In her declaration, Sweezey described a 2012 incident in which Virelas
stood between her and her son after he overheard her talking about the son’s
impending visit: “[Virelas] raised his fist to hit me because he didn’t want my
son there. [He] attempted to isolate me from my son as he was jealous of the
attention I gave my son. [He] told me my son was not welcome in the home
and said that I should tell my son not to come and visit. When my older
daughter from a previous relationship arrived to visit [he] made her call my
son and tell him that he was not welcome to visit.”
Sweezey further stated, “During the 11 years of our relationship my
daughter has had to deal with hearing [Virelas’s] verbal abuse towards me
and the derogatory names he calls me. [Virelas] frequently uses foul
language in front of our daughter and tells her that she is ‘stupid’ and many
times she is so upset from his words that she runs to her room crying. . . .
Our daughter is also emotionally struggling from [Virelas’s] bullying and
constant disapproval of her in everything she does.” Virelas allegedly made
negative comments about their daughter’s grades and basketball-playing,
and threatened to cut their daughter’s hands off if she did not complete her
homework.
Also, Sweezey stated, in January 2020, she and Virelas argued, with
Virelas “criticizing me saying that I do not put any effort into our
relationship. I told [Virelas] . . . that I did not want to be in a relationship
with him. I attempted to leave the room that we were in and [Virelas]
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immediately became angry and wrapped his arms around my chest and
dropped me on the couch in the bedroom and held me down and said that he
wouldn’t let me leave.” Sweezey also stated that Virelas was sexually
abusive towards her on a weekly basis and had been since 2018, raped her
several times a week, including during the January 2020 incident, forcefully
bit her, and tracked her movements electronically.
In January 2021, the trial court held a hearing regarding Sweezey’s
DVRO request. Sweezey testified that everything in her declaration was
accurate and truthful, but did not present any significant additional evidence
regarding the abuse and incidents described in her declaration that we have
just discussed.
At the hearing, the parties presented testimony, by themselves and
others, and evidence about numerous matters. This evidence includes
Virelas’s denials of allegations by Sweezey against him and his positive
characterization of their relationship in the six months preceding Sweezey’s
filing; text messages between Virelas and Ms. Sweezey containing what
Virelas contended were playful sexual exchanges; the lack of police and
medical reports by Sweezey regarding the purported sexual and other
assaults by Virelas; Virelas’s conduct towards their daughter; the allegedly
abusive conduct of an ex-boyfriend of Sweezey’s, who had moved into
Sweezey’s home after Virelas left, towards Sweezey and her daughter;
Virelas’s retrieval of some of his things from the home he had shared with
Sweezey and visits to neighbors, which Sweezey argued violated the court’s
temporary restraining order; Virelas’s concerns that Sweezey was exposing
their daughter to cigarette smoke, causing the daughter headaches; and their
custody and visitation arrangements regarding their daughter.
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The evidence presented at the hearing indicates Virelas had a difficult
personality with which to contend. Sweezey testified that Virelas had been a
stay-at-home father but that when their daughter got older, she asked him to
get a job in order to help pay for the household expenses, since he was living
with her for free. But Virelas only “[v]ery occasionally” worked, bringing in
“a few thousand dollars” “maybe once a year.” Also, Virelas testified that he
had told their daughter that Sweezey was “cheating” on him—which Sweezey
denied doing—and that he did not think this would have a negative impact
on the daughter’s impression of her mother.
There was also testimony from a former neighbor of Sweezey and
Virelas, Heidi P., who took care of the daughter once a week, that she had
observed certain “kind of red flags” regarding Virelas’s treatment of the
daughter. She cited the daughter’s noticeable fear when she momentarily
lost track of the family dog her father had told her to watch, the daughter’s
missing friends’ birthday parties to practice go-karting with her father
although she did not seem to want to practice, and Virelas’s insistence that
the daughter make a certain number of baskets before she could play with
her friends.
Heidi P. also testified that Virelas had acted aggressively in his
dealings with her. He tried repeatedly to persuade her to sign statements
against Sweezey for his use in the DVRO proceedings even though she said
she preferred to stay neutral out of her concern for the daughter. Numerous
times, Virelas tried to show her evidence against Sweezey, some of which was
pornographic, which actions Heidi P. found appalling and repulsive. He also
insinuated he would call child protective services to come to Heidi P.’s house
to check on the daughter if Heidi P. did not sign the statements.
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At the conclusion of the hearing, the court made certain factual
findings and ruled that it would issue a one-year DVRO against Virelas.
First, the court found the third party witnesses who testified at the hearing
to be credible for the most part. The court found that Sweezey and Virelas
“both to some extent did exaggerate certain events and behaviors to promote
their own positions,” and found them “to be moderately credible but not
beyond.”
Next, the trial court found that Sweezey had not shown by a
preponderance of the evidence that Virelas had raped her, emphasizing that
there was insufficient evidence that Virelas “did not reasonably believe that
she had consented to the act of intercourse.” The court added that it still had
a reasonable suspicion that the intercourse was accomplished by means of
force or duress.
The court also found Sweezey did not prove by a preponderance of the
evidence a number of her other allegations, they being that Virelas had bitten
Sweezey; that he had tracked her movements electronically; that he had
violated the temporary restraining order issued by the court; that he had
threatened to cut off his daughter’s hands if she did not finish her homework;
and that he threatened to take his daughter and keep her away from
Sweezey. However, the court found that Virelas “was a domineering father
trying . . . to make his daughter . . . excel at anything that she had,
sometimes maybe pushing a little far . . . .”
Further, as stated in its written DVRO, the trial court found that
Sweezey did prove by a preponderance of the evidence that, first, Virelas
“[r]epeatedly call[ed] her a ‘stupid fucking bitch,’ ” adding at the hearing that
“that domineering and abusive language did happen.” The court found that,
second, “[i]n January 2020, [Sweezey] attempted to leave a room in their
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home, and [Virelas] physically prevented her from leaving the room.” And
the court found that, third, “[Virelas] has a domineering personality and
made unreasonable efforts to control [Sweezey’s] behavior.”1
In its written DVRO, the trial court concluded that the first two of
these allegations were “sufficient to meet the definition of Disturbing the
Peace of [Sweezey] as defined in Family Code section 6320 and further
described in the appellate decision In re Marriage of Nadkarni (2009)
173 [Cal.App.]4th 1483 [Nadkarni].” (Bold omitted.) At the hearing, it
stated, “The combination of the domineering personality, the abusive
language, and this brief false imprisonment, although I do find it to be very
brief, when these things are combined, they are sufficient to meet the
definition of disturbing the peace,” and cited the same statute and case it
referred to in its written DVRO.2
Virelas was ordered to move immediately out of the home he had
shared with Sweezey, stay at least 100 yards away from her, her home,
workplace and vehicle, and was prohibited from attacking, striking,
threatening, assaulting or otherwise harassing her, contacting her directly or
indirectly, or taking any actions to obtain her location, except that he was
allowed to have brief and peaceful contact with Sweezey as required for court-
1The court actually stated that “Party #2,” meaning Virelas, made
unreasonable efforts to control “Party #2’s” behavior, an obvious
typographical error.
2 Given the court’s statement at the hearing, its statement in its
written DVRO that the first two of its three factual findings were “sufficient”
to establish that Virelas had disturbed Sweezey’s peace cannot reasonably be
interpreted to mean the court did not think its third finding provided further
support for this conclusion. Rather, it appears the court viewed this finding
as adding weight to its conclusion that Virelas had disturbed Sweezey’s
peace, even if the first two findings were sufficient by themselves to establish
a disturbance of the peace.
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ordered visitation with their daughter. Sweezey was given sole possession,
care, and control of two pets. The court ordered that the daughter could not
be present within 100 yards of Sweezey’s ex-boyfriend and could not be
exposed to second-hand smoke by either parent. Sweezey was given legal and
physical custody of the daughter, and Virelas was allowed visitation on the
first, third and fifth weekend of each month.
Virelas filed a timely notice of appeal.
II. DISCUSSION
Virelas argues there was insufficient evidence to support the trial
court’s issuance of the DVRO, requiring reversal of the DVRO as an abuse of
the trial court’s discretion.
A. Standard of Review
We review an order granting or denying a DVRO for abuse of
discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495
(Nadkarni).) “ ‘To the extent that we are called upon to review the trial
court’s factual findings, we apply a substantial evidence standard of review.’ ”
(In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) Accordingly, “[w]e
resolve all factual conflicts and questions of credibility in favor of the
prevailing party and indulge in all legitimate and reasonable inferences to
uphold the finding of the trial court if it is supported by substantial evidence
which is reasonable, credible and of solid value.” (Schild v. Rubin (1991)
232 Cal.App.3d 755, 762.)
B. The Domestic Violence Prevention Act
The court issued its DVRO pursuant to the Domestic Violence
Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). The purpose of the
DVPA “is to prevent acts of domestic violence, abuse, and sexual abuse and to
provide for a separation of the persons involved in the domestic violence for a
period sufficient to enable these persons to seek a resolution of the causes of
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the violence.” (Fam. Code, § 6220.) “Abuse” under the DVPA includes,
among other things, placing a person in “reasonable apprehension of
imminent serious bodily injury” or any behavior that could be enjoined under
section 6320, including “disturbing the peace of the other party.” (§§ 6203,
subd. (a)(3), (4), 6320, subd. (a).) “ ‘[D]isturbing the peace of the other party’
refers to conduct that, based on the totality of the circumstances, destroys the
mental or emotional calm of the other party,” whether directly or indirectly.
(Fam. Code, § 6320, sub. (c).) “This conduct includes, but is not limited to,
coercive control, which is a pattern of behavior that in purpose or effect
unreasonably interferes with a person’s free will and personal liberty.” (Ibid.)
C. Analysis
Virelas, focusing on the trial court’s findings that he repeatedly used
abusive language with Sweezey during their 13-year relationship and briefly
prevented her from leaving a room in January 2020, argues that insufficient
evidence supports these findings and, therefore, the trial court’s issuance of
the DVRO against him. Virelas contends the only supporting evidence is
contained in Sweezey’s DVRO request and the declaration attached to it. He
argues her declaration statements, which refer to only one particular phrase
used by him—“ ‘stupid fucking bitch’ ”—and only one incident in January
2020, are insufficient to support the issuance of the DVRO, particularly when
the parties lived separately from one another and maintained peaceful
contact in their communications after the court issued its temporary
restraining order, indicating the risk of future abuse was minimal. He adds,
“It should be troubling for any reviewing court how a Trial Court can hear
live testimony from a witness (Ms. Sweez[e]y) and not find the witness
credible enough to sustain the claims being made in their testimony and then
find statements from the same witness that were merely written and not
testified to credible.”
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Virelas’s arguments are unpersuasive under our abuse of discretion
standard of review. Sweezey’s declaration statements, buttressed by
evidence presented at the hearing, are sufficient evidence to support the
DVRO because the trial court could reasonably conclude that Virelas had
repeatedly acted to destroy Sweezey’s mental and emotional calm and could
well continue to do so in the future.
First of all, we do not take lightly the court’s finding that Virelas
verbally abused Sweezey for 13 years, regardless of the general nature of her
declaration statements. Further, Sweezey identified a particular phrase
Virelas used repeatedly—“ ‘stupid fucking bitch’ ”—that is as vile and
demeaning as anything that can be said to a partner. It is reasonable to
conclude that Virelas’s repeated use of this derogatory phrase contributed
significantly to his creation of a climate of mental and emotional agitation for
Sweezey. That he used such verbal abuse for years in the presence of their
daughter, upsetting the daughter, likely added to Sweezey’s disquiet.
We also do not take lightly the trial court’s finding that Virelas forcibly
detained Sweezey in January 2020, when he held her down to prevent her
from leaving a room, particularly because it occurred during a time when
Virelas contended the couple were getting along well, suggesting his
unawareness of his wrongful conduct’s negative impact on Sweezey’s mental
and emotional state. It also is not the only episode in which he attempted to
control Sweezey by the use of force: Sweezey recounted in her declaration
that in 2012 he raised his fist to hit her in his attempt to prevent her from
having her son visit their home.
Further, there is substantial evidence to support the trial court’s third
finding, that being that Virelas had “a domineering personality and made
unreasonable efforts to control [Sweezey’s] behavior.” The evidence that
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supports the court’s first two findings provides substantial evidence of this
third finding as well. Additionally, Virelas’s other efforts to prevent
Sweezey’s son from visiting their home, such as having her older daughter
contact the son, and his disregard of Sweezey’s request that he get a job in
order to help with household expenses instead of relying almost entirely on
Sweezey’s financial support, show his use of domineering ways to control the
household, including Sweezey. Also, while the court concluded that Sweezey
did not prove by a preponderance of the evidence that Virelas had repeatedly
raped her, we reasonably infer from the court’s continued reasonable
suspicion that Virelas had accomplished intercourse with Sweezey by means
of force or duress that it found this conduct disturbingly domineering as well.
~(2 RT 171)~
There is also substantial evidence that Virelas generally acted in a
domineering fashion with a disregard of his negative impact on others, which
further supports the reasonableness of the trial court’s third finding and the
conclusion that further abuse could well occur. Heidi P., a former neighbor
and part-time care provider of Sweezey’s and Virelas’s daughter, testified
about the multiple “red flags” that were raised for her by Virelas’s repeated
harsh and controlling treatment of the daughter. And Heidi P. recounted her
own recent, disturbing interactions with Virelas, describing his persistent
efforts to bully her into signing statements against Sweezey despite her
telling him that she wanted to remain neutral for the daughter’s sake.
Virelas’s efforts included showing Heidi P. pornographic material involving
Sweezey and insinuating that he would call child protective services to
Heidi’s home when the daughter was there if she did not sign. Heidi P.
testified that she was repulsed by some of his efforts but that he continued
with them, from which the trial court could reasonably infer that he
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disregarded the negative impact of his domineering ways and was unlikely to
stop asserting them with others, including Sweezey. This lack of awareness
also can be reasonably inferred from his hearing testimony that his telling
his daughter that Sweezey was “cheating” on him—again, which Sweezey
denied doing—did not have a negative impact on the daughter’s impression of
her mother.
The trial court could reasonably conclude from the totality of this
evidence that Virelas had repeatedly acted in a domineering fashion towards
Sweezey that disturbed her peace, and that his domineering conduct in
general had not abated at the time of the hearing. In other words, there is
substantial evidence that Virelas had engaged in “a pattern of behavior that
in purpose or effect unreasonably interferes with a person’s free will and
personal liberty.” (Fam. Code, § 6320, subd. (c).) Case law indicating that an
offending party need not engage in a pattern of physical violence to disturb a
party’s peace further supports our conclusion. (See Nadkarni, supra,
173 Cal.App.4th 1483, 1497–1499 [former husband’s alleged accessing,
reading, and publicly disclosing the content of ex-wife’s confidential emails
could constitute “ ‘disturbing the peace of the other party’ ” under the DVPA];
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1142–1143, 1147
[defendant’s continually contacting plaintiff, including with communications
containing sexual innuendos, after plaintiff terminated their relationship and
asked him to stop contacting her and his arrival unannounced and uninvited
outside her residence were substantial evidence that he disturbed her peace
under the DVPA]; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 818–
819, 821–822 [ex-boyfriend’s acts of isolation, control, and threats were
sufficient evidence that he destroyed ex-girlfriend’s mental and emotional
calm, constituting abuse under Family Code section 6320].)
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Virelas’s criticism of the trial court’s first two findings as being based
on Sweezey’s declaration statements rather than live testimony, particularly
when the court found some of her testimony insufficient to support certain of
her claims, is unpersuasive. The trial court is statutorily authorized to issue
a restraining order “based solely on the affidavit or testimony of the person
requesting the restraining order.” (Fam. Code, § 6300, subd. (a).) It found
Sweezey to be moderately credible, and obviously found her credible
regarding the matters upon which it based its abuse findings. Virelas gives
us no reason to second-guess the court’s credibility determinations,
particularly when the trial court had the opportunity to observe the personal
demeanor of Sweezey and Virelas, who both testified. (See, e.g., People v.
Lewis (2001) 26 Cal.4th 334, 359 [reviewing court confronted with “a cold
record without the trial court’s benefit of observing firsthand the appearance
and demeanor of the witness . . . must give proper deference” to a trial court’s
credibility finding].)
III. DISPOSITION
The judgment is affirmed. Sweezey shall recover her costs of appeal.
STREETER, J.
WE CONCUR:
BROWN, P.J.
GOLDMAN, J. Sweezey v. Virelas (A162141)
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