Marriage of Heriberto R. and Katrina R. CA4/2 (2024) · DecisionDepot
Marriage of Heriberto R. and Katrina R. CA4/2
California Court of Appeal Jan 5, 2024 No. E078865Unpublished
Filed 1/5/24 Marriage of Heriberto R. and Katrina R. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of HERIBERTO and KATRINA R.
HERIBERTO R., JR., E078865 Appellant, (Super. Ct. No. FLRI2004664) v. OPINION KATRINA ELIZABETH R.,
Respondent.
APPEAL from the Superior Court of Riverside County. Wendy Harris,
Among other things, the DVRO ordered Heriberto to sell or store his five firearms
with a licensed gun dealer or turn them into law enforcement. Heriberto agreed to
transfer the firearms to a dealer and then have them sold. Heriberto was given 24 hours
to comply with the order and 48 hours to provide proof of his compliance. The DVRO
also awarded Katrina the family residence in Banning and sole custody of the parties’
four then-minor children, K., S., E., and M.
1 Because this case involves the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) and the parties’ minor children, we refer to the parties by first name and last initial to protect their privacy and their children’s privacy. (Cal. Rules of Court, rule 8.90(b)(1).) 2 We take judicial notice of this opinion. (Evid. Code, § 452, subd. (d)(1); Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1433, fn. 2.)
2
A few months later, however, Heriberto petitioned for a change in custody because
Katrina allegedly abused the children. The family court ordered the Riverside
Department of Social Services (the Department) to conduct an investigation into the 3 allegations and prepare a report under Family Code section 3027, subdivision (b). The
family court later granted Heriberto’s petition and changed the custody order so that the
parties had joint legal custody of the children, with physical custody to Heriberto and
eight hours of supervised visits per week to Katrina.
In February 2022, the family court held a 7.5-hour bench trial over four days to
resolve Heriberto’s petition to dissolve his marriage to Katrina. The parties and M.
testified, as did the children’s therapist, Alysa Johnson, and Angel Vandhana, a court-
ordered supervisor of Katrina’s visits with the children.
M. testified at length about Katrina’s repeated physical abuse of her and her
siblings. According to M., Katrina “rage hit[]” the children’s thighs and buttocks. “[T]he
spanking goes from the lower back all the way from the butt to the thighs, the back of the
thighs.” M. and K., the two oldest of the parties’ children, were not allowed in their
younger siblings’ room “to stop Katrina from spanking E[.]” on one occasion because M.
and K. had previously called the police when Katrina spanked E. M. claimed that she
and K. had intervened to stop Katrina’s “rage-filled” spanking of E. five times and had
3 That provision states, “If allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, the court may request that the local child welfare services agency conduct an investigation of the allegations.” Although the Department of Social Services’ report was admitted into evidence at trial, it is not in the record on appeal.
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called the police each time, but she could not recall how many times the police came to
the house.
When the incident prompting the Family Code section 3027 investigation
occurred, M. and K. were in the hallway, but M. could hear Katrina hitting E., who
screamed repeatedly, “Mommy stop. Stop. That hurts. Ow!” M. testified that S. kept
telling Katrina to stop hitting E., but Katrina threatened to push S. off of the top bunk or
to push her down the stairs if S. did not stop interfering. M. testified that she and her
siblings called the police multiple times because of Katrina’s abuse.
Katrina did not deny that she had spanked E. “on her behind,” but she denied ever
hitting her “over and over again.” She claimed she had only spanked E. on her bottom.
Katrina also did not deny that S. tried to intervene when Katrina “tried spanking E[.] on
her behind because she was kicking me and trying to hit me and screaming,” and
acknowledged that M. recorded the incident on her phone.
Later that day, Katrina cleaned a scratch on E.’s leg. Katrina denied she caused
the scratch. When cleaning the scratch, E. yelled repeatedly, “It burns.” Katrina
admitted that she responded, “Next time I tell you to stop talking back and to listen,
maybe if you weren’t kicking me and throwing arms around, you wouldn’t have hurt
yourself.” She also admitted that she “probably” said to E., “Go ahead. Talk back. I’m
going to smack you again. Keep talking back. I’m done with you talking back
disrespectfully and screaming at me. Not happening.” Katrina denied, however, that she
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threatened to kick E. in the face or that S. told Katrina that she had hit E. several times
and “that is enough.”
Johnson testified that she had been the children’s therapist since December 2020
and had seen them weekly. Johnson talked with the children a few weeks before trial and
they all told her that they did not want to see Katrina. In Johnson’s view, the children
never reported any “substantial” positive relationship with Katrina.
According to Johnson, K. had “severe anxiety” about seeing Katrina and “made it
clear that she just did not want to see her mother” when they met before trial. K. had
previously told Johnson about Katrina’s abuse. Specifically, Katrina had “shoved” and
“pushed” K., and had seen Katrina “go after” E., which prompted K. to “sort of stand in
the way and guard and try to pull the attention to her.”
During their meeting before trial, E. had “some anxiety” about talking to and
seeing Katrina. Johnson explained that E. had previously reported that Katrina had hit
her and that E. “remembers the pushing and the screaming and the yelling.”
S. told Johnson she did not want to see Katrina during their meeting before trial,
but did not say why. Johnson opined, however, that S. suffered from post-traumatic
stress disorder stemming from Katrina’s abuse of the children. S. had seen Katrina
“hitting E[.] and hitting her sisters, pushing them out of the way,” during “multiple
events.” S. had recurring “bad dreams about her mom leaving her by herself” because
Katrina “regularly” left the children at home alone.
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As for M., she reported witnessing “similar abuse” to Johnson. She saw Katrina
hit, push, and shove E. and K.
The children also reported to Johnson that none of them were interested in joint
therapy with Katrina. K. did not want to do it because she did not want to reunify with
Katrina, but S. and E. did not explain why they were against it.
Johnson also testified that the children reported that Heriberto had never abused
them and there was no indication that he spoke “negatively” to the children about their
mother. Johnson also was not aware of anything suggesting that Heriberto had
influenced E. and S.’s into saying that they were unsure about whether they wanted to
reunify with Katrina.
Vandhana testified generally about Katrina’s supervised visits with the children.
Katrina did not visit the children between April 2021 and December 2021. In
Vandhana’s view, however, if one of the children did not want to do a visit, then “the
others usually kind of follow suit most of the time.”
In January 2022, about a month before trial, Heriberto drove the children to the
drop-off location, but they refused to get out. As a result, the visit did not happen.
Vandhana had to terminate an April 2021 visit because none of the children
wanted to visit Katrina. K. “never wanted to participate in a visit.” M., then a minor,
also never wanted to participate either. E. and S. eventually agreed to the visit, but
Vandhana terminated the visit after S. got into a “verbal altercation” with Katrina. S. said
to Katrina, “Why are you trying to attempt at visitation? . . . You don’t care about us. I
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don’t think you want us in your life. And we wouldn’t even be in this situation where
we’re on visits if you hadn’t done what you did.” Vandhana repeatedly told Katrina that
the visit was terminated and that Katrina had to leave because the children were upset and
Vandhana did not want to “have them traumatized.” M. eventually said, “The visit is
over,” grabbed E. and S.’s hands, and walked away.
Heriberto testified on the first day of trial. He testified about his firearms, among
other things. He said that his firearms were in the Banning residence when he left the
home. He explained that he could not comply with the DVRO’s order to relinquish the
firearms because they were in the Banning residence, which he could not enter. He
claimed that he tried to get the Banning police department and registered firearms dealers
to pick up the guns, but no one agreed to do so.
At the end of the second day of trial, the family court sua sponte ordered
temporary sole legal and physical custody of the children to Katrina. The family court
explained that it was making that order because Heriberto testified the day before that he
had not yet surrendered his firearms. Heriberto’s counsel objected and asked to make a
record, stating that Heriberto could not turn over the firearms because they were at
Katrina’s residence (the Banning family home). The family court refused the request on
the ground it did not need any further information from Heriberto’s counsel.
When trial began the next day, Heriberto’s counsel began by discussing the
firearms issue. She explained that she had lodged transcripts from the initial DVRO
hearing, which was held by a different judicial officer. According to counsel, that judge
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ordered Katrina to turn over the firearms to the police because they were at the Banning
house, which was in her exclusive possession. Counsel then argued that the family court
should not have sua sponte changed the custody order because Katrina had not requested
the change and there was no imminent harm to the children. Without addressing either
issue further, the family court asked Katrina to take the stand for cross-examination.
After the trial concluded, the family court issued a lengthy oral ruling. As relevant
here, the court explained in detail its many reasons as to why it was awarding sole legal 4 and physical custody of K., S., and E. to Katrina with no visitation to Heriberto.
The first reason was that Heriberto continually violated the August 2020 DVRO’s
order to turn in his firearms and had not done so by February 15, 2022, the last day of
trial.5 The court found his testimony on this issue “contradictory” because he argued
Katrina was required to relinquish the firearms but later claimed he unsuccessfully tried
to contact law enforcement and firearms dealers to turn in the weapons. The court also
did not find credible his testimony that he contacted law enforcement to pick up the
weapons but they declined to do so. The court doubted that he was ever “forthright with
4 M. turned 18 before trial, so she was not subject to custody orders. 5 The family court stated that Heriberto violated a supplemental order issued on the second day of trial, February 9, 2022, to relinquish his firearms. Although the court’s February 9 order states that Heriberto had not complied with the previous order to relinquish his firearm arms and that the court would notify law enforcement and the District Attorney within 48 hours to apprise them of Heriberto’s noncompliance, the court did not re-order Heriberto on February 9 to make efforts to relinquish his firearms.
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anyone” who could lawfully retrieve his firearms. The court observed that Heriberto
never filed a DV-800 form outlining his efforts to relinquish his firearms.
The family court then explained that, because of the DVRO, it was applying
Family Code section 3044 (section 3044) against Heriberto, which imposes “a rebuttable
presumption that an award of sole or joint physical or legal custody of a child to a person
who has perpetrated domestic violence is detrimental to the best interest of the child.”
The next reason for the court’s custody order was that “there is an active criminal
protective order.” But “[t]here was no evidence presented . . . as to the status of that
matter, what the charges are, what is the likely outcome,” because there was no evidence
in the record about the charges.
Another reason was that Heriberto had violated a court order not to sell the parties’
property by selling a vehicle.
The court’s next reason for its custody order was that Heriberto “violated a court
order by changing the children’s school without [Katrina’s] authorization.” The court
also found that Heriberto violated a court order to enroll in and complete a 52-week
“batterer’s program,” but that he had complied by the time of trial.
The next reason for the family court’s custody order concerned Heriberto’s refusal
to give Katrina his address. The court found that an agreement to share one another’s
address is implicit in every joint legal custody order so that both parents know where
their children live. During the first day of trial, however, Katrina testified that she still
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did not know Heriberto’s address. It appeared to the court that Heriberto was “thinking
of moving away, and [Katrina] has no idea of this, nor does the Court.”
The court then explained that another reason for its custody order was that “[i]t’s
clear that [Heriberto is] not in a position to co-parent.” The court reached this conclusion
in part after reviewing “67 pages” of TalkingParents messages between the parties
showing that Heriberto was responsible for about 5 percent of the messages because he
would “take three or four days to look at it, never respond, page after page after page.”
The court quoted the following message from Katrina as an example: “I don’t have any
money. We can’t pay for monitoring. Can we think of a third party that we don’t have to
pay? I need to see my kids. I’m borrowing money to see my kids. Let’s work something
out.” The court described Heriberto’s response as: “Nothing. Ghost town. It’s clear he
has an agenda. It’s clear he’s not in a position to co-parent.”
After issuing its ruling, the court explained that Heriberto could later petition to
change the custody order if he successfully complied with the court’s orders.
When issuing its ruling, the family court also explained its custody-related orders
to Katrina. The court told Katrina that the children “have problems with you. I know
you know it, and I know you need to work on it.” The court acknowledged that Katrina’s
anxiety negatively affected her parenting, implored her to “get that into control,” and
strongly suggested therapy while ordering her to enroll the children in therapy. In the
court’s view, her anxiety was a main reason why the children did not want to live with
her.
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The court then noted that the event that led to the Department’s Family Code
section 3027 report was an incident that Katrina called “discipline” while the children
“call[ed] it beating up. Whatever.” The court ordered Katrina (and Heriberto) not to “lay
their hand on any of these children,” stating that “spanking them is not going to be an
effective means of discipline.” Given Katrina’s anxiety and use of corporal punishment,
the court ordered her to take “a parenting class geared towards teenaged adolescents,
honing in on effective discipline techniques so that we don’t have you yelling and
screaming and putting your hands on the children.”
The family court concluded its oral ruling by outlining the reasons why it had
considered sanctioning Heriberto’s attorney. One reason was for counsel filing a request
for sanctions under Family Code section 271 that the court found frivolous (and thus
denied). The court noted found that Heriberto’s counsel’s “candor . . . is suspect, and has
been, quite frankly, the entire duration of this case.” As examples of the court’s
concerns, the court stated that Heriberto’s counsel cited nonexistent or inapplicable
authority, provided an unsigned off-work order from her doctor on the first day of trial,
yet issued subpoenas to Katrina in violation of the off-work order. The court, however,
declined to sanction Heriberto’s counsel and concluded its ruling. Heriberto timely
appealed.
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III.
DISCUSSION
Heriberto challenges only the family court’s order awarding permanent sole
physical and legal custody of the children to Katrina while awarding him no visitation.
He argues the family court erred in five respects: (1) the family court lacked jurisdiction
to award Katrina custody while his appeal of the DVRO was pending, (2) the court
erroneously awarded Katrina custody based on his violation of the order to relinquish his
firearms, which were in Katrina’s custody and control, (3) the family court refused to
hear evidence that the firearms were in Katrina’s custody and control, (4) the family court
erroneously awarded Katrina custody sua sponte in the middle of trial without any
showing of a threat of immediate harm to the children, and (5) the family court’s
evidentiary rulings unconstitutionally precluded him from presenting his case. We reject
Heriberto’s contentions and affirm the family court’s custody orders.
A. Jurisdiction
The family court issued its DVRO in August 2020 and Heriberto timely appealed
the order in October 2020. We issued our opinion affirming the order in October 2022,
so the April 2022 trial in this case was held while Heriberto’s appeal was pending.
The filing of an appeal generally “stays proceedings in the family court upon the
judgment or order appealed from or upon the matters embraced therein or affected
thereby, including enforcement of the judgment or order . . . .” (Code Civ. Proc., § 916,
subd. (a).) An exception to this rule is in Code of Civil Procedure section 917.7, which
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provides that the filing of an appeal “shall not stay proceedings as to those provisions of a
judgment or order which award, change, or otherwise affect the custody . . . of a minor
child in any civil action.” (Code Civ. Proc. § 917.7, italics added.) Instead, an order
affecting child custody or visitation is stayed on appeal only if the family court orders a
stay. (Code Civ. Proc. § 917.7.) Unless the family court grants a stay, the court retains
jurisdiction to modify any order affecting child custody or visitation during the pendency
of an appeal. (Code Civ. Proc. § 917.7.)
The DVRO temporarily awarded Katrina sole legal and physical custody of the
children. Thus, under Code of Civil Procedure section 917.7, the family court had
original jurisdiction to render a final custody order, regardless of Heriberto’s appeal of
the DVRO. (See Mancini v. Superior Court (1964) 230 Cal.App.2d 547, 554 [“[T]he
trial court . . . in spite of the appeal [has] the discretionary power to make, vacate and
modify custody orders.”].)
B. Section 3044 Presumption
Heriberto contends the family court improperly applied section 3044’s rebuttable
presumption against him. We find no error.
Section 3044 states in relevant part that when a court finds “that a party seeking
custody of a child has perpetrated domestic violence within the previous five years
against the other party seeking custody of the child . . . there is a rebuttable presumption
that an award of sole or joint physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest of the child.” (§ 3044,
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subd. (a).) The presumption is mandatory and must be applied whenever a court has
found that a party seeking custody has perpetrated domestic violence within five years.
(Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 196.)
To rebut the presumption, the perpetrator of domestic violence must show two
things. “First, the court must be satisfied that the award of custody is in the child’s best
interest. [Citation.] Second, the court must be satisfied that on balance, the six additional
enumerated factors support an award of custody.” (Abdelqader v. Abraham, supra, 76
Cal.App.5th at p. 196.) As relevant here, those factors include that “[t]he perpetrator is
restrained by a protective order or restraining order, and has or has not complied with its
terms and conditions” and “[t]he court has determined, pursuant to [Family Code]
[s]ection 6322.5, that the perpetrator is a restrained person in possession or control of a
firearm or ammunition in violation of [s]ection 6389.” (§ 3044, subd. (b)(2)(E), (G).)
Heriberto argues the family court improperly applied the presumption because the
firearms were in Katrina’s possession or control, not his. We need not decide whether
who controlled or possessed the firearms. Even if Katrina possessed and controlled the
firearms, Heriberto fails to show that the family court improperly applied the section
3044 presumption.
Because the family court found in August 2020 that Heriberto had perpetrated
domestic violence against Katrina, section 3044’s mandatory presumption applied.
(§ 3044, subd. (a).) To rebut that presumption, Heriberto first had to show that giving
him custody of the children would be in their best interests, but he makes no attempt to
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6 do so in his opening brief. (§ 3044, subd. (b).) He has therefore failed to show that he
rebut section 3044’s mandatory presumption.
Nor has Heriberto shown that the family court misapplied the factors at the second
step of the rebuttal analysis. Even if Heriberto is not “a restrained person in possession
or control of a firearm or ammunition” (§ 3044, subd. (b)(2)(G)) and thus did not violate
the DVRO’s firearm orders, the family court found that he had violated several court
orders, which is a factor the court had to consider. (§ 3044, subd. (b)(2)(E).) The family
court found that Heriberto violated the court’s orders by (1) selling the parties’ vehicle,
(2) changing the children’s school without Katrina’s authorization, and (3) failing to
timely file proof that he completed a batterer’s program. Heriberto ignores these findings
and, in turn, fails to show that the family court misapplied section 3044, subdivision
(b)(2)’s factors. As a result, we conclude the family court properly applied section
3044’s presumption against Heriberto.
C. Precluding Evidence About the Firearms
On separate occasions during trial, Heriberto asked to present evidence that the
firearms were not in his care, custody, or control and thus he could not comply with the
DVRO’s requirement that he relinquish his firearms. The family court, however,
precluded Heriberto from doing so each time. Heriberto argues this violated his
6 Because Katrina did not file a respondent’s brief, Heriberto did not file a reply brief.
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constitutional right to rebut evidence and, in doing so, the family court imposed an
irrebuttable presumption under section 3044.
We disagree. Again, Heriberto does not show, as he must, why granting him sole
or joint custody would be in the children’s best interests (§ 3044, subd. (b)(1)). Because
he fails to make that threshold showing, we cannot find that the family court misapplied
section 3044. (See Abdelqader v. Abraham, supra, 76 Cal.App.5th at p. 196 [“First, the
court must be satisfied that the award of custody is in the child’s best interest” before
considering section 3044, subdivision (b)(2)’s six factors].)
In any event, we disagree with Heriberto that the family court imposed an
irrebuttable presumption under section 3044 by refusing to hear further evidence that he
had no access to the firearms because they were in Katrina’s residence.
Although the August 2020 DVRO ordered Heriberto to relinquish five firearms, he
had not done so by the time of trial in April 2022. He testified that he contacted law
enforcement and licensed firearms dealers, but no one would retrieve the firearms, so
there was nothing he could do. The family court not only found this testimony not
credible, but also found that the DVRO ordered Heriberto to relinquish his firearms—
regardless of where they were located—and that he violated that order.
The family court thus did not impose an irrebuttable presumption under section
3044 by precluding Heriberto’s proffered evidence about the location of the firearms.
Instead, the court ruled that irrespective of where the firearms were, Heriberto was
obligated to ensure that he relinquished his firearms. Thus, the family court did not
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impose an irrebuttable presumption under section 3044 but instead concluded that it did
not need more evidence about the location of the firearms.
We need not decide whether that ruling was erroneous because it was harmless.
Even if the family court had allowed Heriberto’s proffered evidence, it is not reasonably
likely that the court would have reached a different result. (See People v. Jones (2013)
57 Cal.4th 899, 957 [applying California standard to assess prejudice of excluded
evidence because “the routine application of provisions of the state Evidence Code law
does not implicate a defendant’s constitutional rights”].)
To begin with Heriberto fails to show that awarding him custody of the children
was in their best interests, so he cannot overcome section 3044’s mandatory presumption
against him. (See Abdelqader v. Abraham, supra, 76 Cal.App.5th at p. 196.) For that
reason alone, any error in precluding Heriberto from presenting evidence about the
firearms’ location was harmless.
More to the point, the firearms issue was just one of many reasons why the family
court awarded sole custody to Katrina. As outlined above, those reasons include (1)
Heriberto’s multiple violations of several other aspects of the DVRO, (2) his pending
criminal case and resultant criminal protective order, (3) his inability to co-parent
evidenced by the parties’ text messages, and (4) his refusal to give Katrina his address.
Heriberto makes no attempt to explain why it is reasonably probable that the family court
likely would have reached a different conclusion had it allowed additional evidence about
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Katrina’s possession and control of his firearms. Any error in excluding that evidence
was therefore harmless.
D. Awarding Custody During Trial
After the third day of trial, the family court sua sponte changed its custody order to
award temporary sole and physical custody of the children to Katrina because Heriberto
had not relinquished his firearms. Heriberto argues doing so violated Family Code
section 3064. We disagree.
Family Code section 3064 provide in relevant part,“[t]he court shall refrain from
making an order granting or modifying a custody order on an ex parte basis unless there
has been a showing of immediate harm to the child or immediate risk that the child will
be removed from the State of California. [¶] (b) ‘Immediate harm to the child’ includes,
but is not limited to, the following: [¶] (1) Having a parent who has committed acts of
domestic violence, where the court determines that the acts of domestic violence are of
recent origin or are a part of a demonstrated and continuing pattern of acts of domestic
violence . . . .” (Italics added.)
Heriberto argues the family court violated Family Code section 3064 by sua
sponte granting Katrina custody of the children because there was no threat of immediate
harm to them. However, there is “immediate harm” to a child when the custodial parent
has committed acts of domestic violence and the acts are “of recent origin.” Heriberto
was found to have committed acts of domestic violence against Katrina on April 28 and
30, 2020, less than two years before the trial. Although the family court changed its
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custody order because Heriberto had not relinquished his firearms in violation of the
DVRO, the court also could have reasonably found that Heriberto had committed acts of
domestic violence of recent origin such that the children were at risk of immediate harm
under Family Code section 3064, subdivision (b)(1). We, therefore, affirm the court’s
sua sponte change in its custody order on that basis. (See Love v. State Dept. of
Education (2018) 29 Cal.App.5th 980, 988 [appellate court may affirm “on any basis
presented by the record whether or not relied upon by the trial court”].)
In any event, any error was harmless. The family court issued its final, permanent
custody order awarding Katrina sole custody of the children just a few days after
temporarily awarding her custody. So even if the family court erred by temporarily
changing custody without a finding of immediate harm to the children, that error was
quickly remedied by the court’s subsequent custody order after trial.
E. Preventing Heriberto from Presenting His Case
Heriberto argues the family court repeatedly prevented him from presenting his
case in violation of his due process rights. He points to nine of the family court’s
evidentiary rulings, which we address in turn.
First, when Heriberto’s counsel called M. to testify, the family court initially
refused to her testify. Counsel explained that she wanted M. to testify about Katrina’s
abuse of the children and to rebut her testimony about what occurred on the day that
prompted the Family Code section 3027 report. The court then ruled that M. could testify
“as to that one day and one day only.” Heriberto’s counsel did not object, and the court
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reiterated its ruling that M. could testify only “about that . . . one and only incident.”
Again, Heriberto’s counsel did not object. Heriberto, therefore, forfeited any argument
that the family court improperly limited M.’s testimony. (See People v. Woodruff (2018)
5 Cal.5th 697, 769.)
M. testified about other incidents and Heriberto offers no explanation as to what
else M. would have testified about. On direct examination, M. testified that although she
was in the hallway on the day that prompted the Family Code section 3027 report, she
assumed Katrina was abusing E. in part because she knew Katrina “gets into her rage
hits, that the spanking goes from the lower back all the way from the butt to the thighs,
the back of the thighs.” On cross-examination, M. testified that she had called the police
a few days before that incident because she tried to stop Katrina’s “rage-filled hit[s] on
E[.],” and had called the police at least five times because of Katrina’s abuse. Given this
testimony, it is not reasonably probable the family court would have ruled differently had
M.’s testimony not been circumscribed.
Second, Heriberto argues the family court erred by declining to hear evidence on
why he refused to give Katrina his address. We reject this argument because Heriberto
has provided no authority suggesting he was justified in not disclosing his address to
Katrina. In any event, he testified that he did not do so because Katrina once sent an
“aggressive” person to his house, and he offers no description of what other evidence on
the issue he intended to submit.
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Third, Heriberto claims the family court erred by refusing to hear testimony from a
Department supervisor about the status of the Family Code section 3027 report and
whether the Department “closed that case.” The court did so because “the report speaks
for itself.” The report is not in the record, however, so we cannot adequately assess
Heriberto’s argument and must resolve the issue against Heriberto. (See 569 E. County
Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434,
fn. 9.)
The fourth and fifth instances where the family court precluded Heriberto from
presenting his case pertain to the court’s refusal to consider evidence that he could not
relinquish his firearms because they were in Katrina’s possession and control. For the
reasons outlined above, we again reject this argument.
Sixth, the family court denied Heriberto’s request to have then-11-year-old S.
testify. The court did so under Evidence Code section 352, finding that “it would be
more detrimental to [S.]” and the court “would not garner any relevant information.”
Heriberto fails to show that this was an abuse of the family court’s “wide discretion”
under Evidence Code section 352. (People v. Roberto V. (2001) 93 Cal.App.4th 1350,
1366.) In fact, he does not acknowledge the reasons or legal basis for the court’s ruling.
Seventh and eighth, the family court precluded S. and K. from testifying and
instead asked Katrina a few questions about whether the children wanted to live with her.
The court explained that did not let K. testify because the court was well into the fourth
day of trial and knew “what she’s going to say,” which was “not going to serve” the
21
court. Katrina then testified that the children did not want to live with her or go to
therapy with her.
Although Heriberto contends these rulings prevented him from presenting his
case, he fails to explain in any detail what S. and K. would have testified to, how their
testimony would have added new evidence to the record, or how their testimony may
have affected the family court’s custody orders in Heriberto’s favor. So, even assuming
the family court erred by excluding K.’s testimony, we discern no resulting prejudice.
The ninth and last evidentiary ruling Heriberto challenges is the family court’s
refusal on the fourth and last day of trial to hear testimony from Katrina on the “67 pages
of texts between her and Heriberto.” The family court explained: ““I have enough
evidence on that issue as to their poor parenting and coparenting issues. I don’t need any
other evidence as to how badly these two parents co-parent.” Heriberto contends the
family court erred by refusing to receive Katrina’s testimony about her text messages
with him.
We cannot adequately review Heriberto’s argument because the “67 pages of
texts” between him and Katrina were introduced at trial are not in our record. We
therefore cannot find that the family court’s ruling was erroneous or prejudicial. (See
569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal.App.5th 426, 434, fn. 9.)
In short, Heriberto fails to show that any of the family court’s series of purported
errors was prejudicial.
22
Heriberto also argues that, when taken together, the purported errors precluded
him from presenting his case in violation of his due process rights. In support, he points
to In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, but that case is
distinguishable. There, in “an unusual and perhaps unprecedented” move, the family
court declared an end to the trial while the husband’s expert was in the middle of
testifying. (Id. at p. 284.) “The trial court essentially ran the trial on a stopwatch,
curtailing the parties’ right to present evidence on all material disputed issues.” (Id. at p.
292.) The family court abruptly ended a trial before the husband had finished his case-in-
chief and “cut[] off any opportunity for rebuttal evidence . . . or argument of counsel”
after “displaying impatience and reluctance in allowing the parties adequate time to
complete their presentations.” (Id. at p. 291.) This “summary termination of the trial
infringed on [the husband’s] fundamental right to a full and fair hearing.” (Ibid.)
Nothing similar occurred here. Although the family court precluded or restricted
some of Heriberto’s proffered evidence (namely, testimony from S. K. and Katrina), he
was allowed to present a case and offer rebuttal evidence and argument on all material
issues. Even though the family court frequently expressed frustration with Heriberto’s
counsel and curtailed her presentation, the family court provided Heriberto a full and fair
hearing over the course of four days. In our view, the trial court did not abuse its
discretion to “rule on the admissibility of evidence, exclude proffered evidence that is
deemed to be irrelevant, prejudicial or cumulative and expedite proceedings which, in the
23
court’s view, are dragging on too long without significantly aiding the trier of fact.” (In
re Marriage of Carlsson, supra, 163 Cal.App.4th at p. 291.)
We therefore reject Heriberto’s argument that the family court violated his due
process rights and affirm the family court’s custody orders.
F. Commissioner Harris’s Demeanor
Heriberto’s counsel, Lauren Laundis, who now represents him on appeal, argues at
length in her opening brief that the family court (Commissioner Wendy Harris) behaved
inappropriately throughout the trial. At oral argument, Ms. Laundis forcefully but
respectfully reiterated and expounded her concerns with Commissioner Harris’s behavior.
Although we conclude Commissioner Harris did not commit reversible error, we are
compelled to comment on some of her comments and behavior directed toward Ms.
Laundis.
We first note that Commissioner Harris was recently admonished by the
Commission on Judicial Performance (months after Heriberto’s counsel filed her opening 7 brief). The admonishment arose from her behavior at proceedings in March 2022, about
a month after the trial in this case, and it follows discipline from the superior court’s
Presiding Judge in October 2021, as well as a written reprimand from the Presiding Judge
On the second day of trial, Katrina testified that Heriberto had moved about a
month prior and refused to tell her his new address, so she did not know where her
children were living. Commissioner Harris therefore ordered Heriberto to write his
address down “this moment.” Ms. Laundis objected and said she “wished to be heard on
that issue,” to which Commissioner Harris replied, “No, you don’t.” When Ms. Laundis
tried to explain why neither the Family Code nor the court’s previous orders required
Heriberto to give Katrina his address, Commissioner Harris refused to hear the argument
and told Ms. Laundis to resume examining Katrina.
Later, Ms. Laundis asked Heriberto whether Katrina was familiar with firearms.
Commissioner Harris asked Ms. Laundis why she was asking the question, and she began
to explain, “Ms. Rosado is going to state that she can’t bring them to the [firearms] dealer
because she’s afraid . . . ,” but Commissioner Harris cut her off, stating, “I don’t care if
either one of these people get arrested quite frankly . . . . I don’t need to hear this
testimony.”
At the end of trial that day, Ms. Laundis asked for and received a continuance
because her physician gave her an off-work order due to a concussion she sustained in a
recent car accident. Commissioner Harris then sua sponte ordered temporary sole legal
and physical custody to Katrina based on Heriberto’s violation of the order to relinquish
his firearms. Ms. Laundis repeatedly objected and asked to make a record, but
Commissioner Harris rejected the requests because “I need no information from you.”
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Judicial officers must “be patient, dignified, and courteous to litigants.” (Cal.
Code Jud. Ethics, canon 3(B)(4).) They must also “act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.” (Cal. Code
Jud. Ethics, canon 2(A).) At a minimum, Commissioner Harris’s comments outlined
above come across in the reporter’s transcript as discourteous, impatient, and demeaning,
particularly to Ms. Laundis.
Although we affirm Commissioner Harris’s orders, we do not condone the
unprofessional manner in which she frequently spoke to Ms. Laundis throughout the trial.
IV.
DISPOSITION
The family court’s custody orders are affirmed. Katrina may recover her costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
MILLER J.
26
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the family court's order granting the respondent sole legal and physical custody of the parties' minor children, finding no error in the application of the Family Code section 3044 presumption or the court's procedural rulings. The court held that the family court retained jurisdiction to modify custody during the pendency of an appeal and that any potential evidentiary errors regarding the appellant's firearm relinquishment were harmless given the multiple independent grounds supporting the custody award.
Issues
Whether the family court lacked jurisdiction to award custody while an appeal of a domestic violence restraining order was pending.
Whether the family court improperly applied the Family Code section 3044 rebuttable presumption against the appellant.
Whether the family court erred by precluding evidence regarding the appellant's inability to access firearms located in the respondent's residence.
Whether the family court erred by sua sponte modifying custody during the trial without a showing of immediate harm.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The family court had original jurisdiction to render a final custody order, regardless of Heriberto’s appeal of the DVRO.”
“Because the family court found in August 2020 that Heriberto had perpetrated domestic violence against Katrina, section 3044’s mandatory presumption applied.”
“Any error in excluding that evidence was therefore harmless.”