Fregoso v. Hernandez (In re Fregoso)

• Decision Date: 21 October 2016
• Docket Number: D069614
• Citation: 209 Cal.Rptr.3d 884,5 Cal.App.5th 698
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Luis M. Ovalle FREGOSO AND Adriana HERNANDEZ. Luis M. Ovalle Fregoso, Appellant, v. Adriana Hernandez, Respondent.

5 Cal.App.5th 698

209 Cal.Rptr.3d 884

IN RE the MARRIAGE OF Luis M. Ovalle FREGOSO AND Adriana HERNANDEZ.

Luis M. Ovalle Fregoso, Appellant,

v.Adriana Hernandez, Respondent.

D069614

Court of Appeal, Fourth District, Division 1, California.

Filed October 21, 2016

Moreno & Associates and William Baker for Appellant.

No appearance for Respondent.

NARES

, J.

Luis M. Ovalle Fregoso appeals from the superior court's grant of a domestic violence restraining order sought by his spouse, Adriana Hernandez. He contends the court abused its discretion because after the court issued a temporary restraining order (TRO), Hernandez invited him to a birthday party and had consensual sex with him. However, Hernandez testified that in one recent incident, Fregoso grabbed her forcefully enough to bruise her arm, and then held her face into a mattress so she could not breathe. Hernandez testified she was afraid of Fregoso, stating, “He's hit the child, he's hit me, he has taken my money, he has threatened me.” She explained the consensual sex was part of their pattern of violence followed by attempted reconciliation. Because substantial evidence supports the court's finding of abuse under the Domestic Violence Protection Act (DVPA) (Fam. Code.

¹§ 6200 et seq. ), we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married for five years and have one child born in 2012. On October 16, 2015, Fregoso filed a petition for dissolution of their marriage. He also sought an order seeking legal and physical custody of the parties' child. In an accompanying declaration, Fregoso stated Hernandez “is an aggressive person who has hit me in the past” and had recently attempted to throw boiling water on him while he was holding their daughter.

Four days later, on October 20, 2015, Hernandez filed a request for a domestic violence restraining order against Fregoso. In an attached declaration, Hernandez stated that on October 7, 2015, Fregoso grabbed her, pushed her hard onto a bed, and held her head down into the mattress so that she could not breathe. She also stated that on October 19, Fregoso “hit our daughter with a belt, almost 10 times.” Hernandez ended her declaration by stating, “I am afraid for mine and my daughter's safety.”

The court issued a TRO against Fregoso on the same day (October 20) and set the matter for a hearing.

Before the hearing, Fregoso filed a response. He denied threatening or hitting Hernandez, and instead stated Hernandez was the aggressor, and he described an incident where she struck him with a wooden box. Fregoso denied that he had ever abused his daughter, stating Hernandez's “claims are a lie....”

The court conducted a hearing. Hernandez and Fregoso, who were each represented by separate counsel, testified.

Hernandez testified that on October 7, 2015, Fregoso “grabbed” her left arm, and pulled her against his chest so hard, she was “unable to breathe.”² After Hernandez fled for safety into her daughter's bedroom, Fregoso followed, and pushed Hernandez onto the daughter's bed with such force the bed collapsed. Hernandez testified Fregoso then “started to press my head against the bed” and “[h]e squeezed my head against the bed and I couldn't breathe.” She said Fregoso threatened her, saying he “has a godfather who is a drug trafficker in Sinaloa [Mexico]....” Hernandez denied throwing a wooden box or boiling water at Fregoso.

On cross-examination, Hernandez explained she did not call the police because she was “afraid” of Fregoso. Hernandez conceded having sex with Fregoso on November 1, 2015, after the court had issued the TRO. She explained this was a pattern of behavior where Fregoso would be violent, seek forgiveness, bring gifts, and then they would have sex. Hernandez testified, “He would always bring me flowers and he would buy Play-Doh for my daughter.” Hernandez added, “after the violence, there were gifts and then there was sex.”

Fregoso testified next, contradicting almost all of Hernandez's assertions about domestic violence. He denied hitting their daughter. Fregoso denied hitting Hernandez or threatening her at any time. He testified that in a jealous rage, Hernandez was the one who hit him. He stated that on other occasions, Hernandez had threatened him with knives, hit him with a metal pole, and destroyed his important personal papers. Fregoso testified that after the court entered the TRO, Hernandez sent him text messages asking for sex. Fregoso believed Hernandez was seeking a restraining order out of spite, to retaliate against him for seeking dissolution of their marriage.

After hearing the parties' testimony, the court granted the restraining order, stating in part, “Based on the evidence and the testimony that the court heard today, the court does find good cause to grant the request for the permanent restraining order. I'm going to grant it for the period of one year.” Under the restraining order, Fregoso is prohibited from, among other things, attacking or threatening Hernandez, and must stay at least 100 yards away from her person, home, workplace, and vehicle, with the exception for peaceful contact as required for court-ordered visitation of children.

DISCUSSION

I. GOVERNING PRINCIPLES AND THE STANDARD OF REVIEW

The purpose of the DVPA is “to prevent acts of domestic violence, 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 the violence.” (§ 6220.) To this end, the DVPA provides for the issuance of restraining orders that enjoin specific acts of abuse. “Abuse” is statutorily defined to include, among other things, to “intentionally or recklessly cause or attempt to cause bodily injury” and to “place a person in reasonable apprehension of imminent serious bodily injury to that person or another.” (§ 6203, subds. (a)(1) & (3).)

Generally, a trial court has broad discretion in determining whether to grant a petition for a restraining order under this statutory scheme. (See Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420, 67 Cal.Rptr.3d 317

(Gonzalez ).) The DVPA permits a court, upon a showing of “reasonable proof of a past act or acts of abuse” (§ 6300), to issue a protective order restraining any person from contact, for the purpose of preventing a recurrence of domestic violence. (Ibid . )

On review of an order granting or denying a protective order under the DVPA, we consider whether the trial court abused its discretion. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143, 167 Cal.Rptr.3d 664

(Burquet ).) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (Gonzalez, supra, 156 Cal.App.4th at p. 420, 67 Cal.Rptr.3d 317.) We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment. (Burquet, supra, 223 Cal.App.4th at p. 1143, 167 Cal.Rptr.3d 664.) Under the substantial evidence test, the pertinent inquiry is whether substantial evidence supports the court's finding—not whether a contrary finding might have been made. (See In re Alexandria P. (2016) 1 Cal.App.5th 331, 355, 204 Cal.Rptr.3d 617.)

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