(§ 6320, subd. (a).) The Legislature also specified it would be an incident of abuse to
“engage in any behavior that has been . . . enjoined” by such a temporary restraining
order. (§ 6203, subd. (a)(4).)
In general, we defer to the trial judge when reviewing an order granting or denying
a DVRO. We review such decisions for abuse of discretion. (In re Marriage of Davila &
Mejia (2018) 29 Cal.App.5th 220, 226.) We review a trial court’s factual findings for
substantial evidence. (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) “The
question of whether a trial court applied the correct legal standard to an issue in
exercising its discretion is a question of law requiring de novo review.” (In re Marriage
of F.M. & M.M.(2021) 65 Cal.App.5th 106, 116 [cleaned up].)
In this case, Murray does not argue the court’s findings were not supported by
substantial evidence, that the court abused its discretion in determining a DVRO was
warranted, or even that the trial court applied the wrong legal standard. Instead, he argues
the trial court denied him procedural due process in several ways. “We review procedural
due process claims de novo because ‘the ultimate determination of procedural fairness
amounts to a question of law.’ ” (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.)
9
Murray argues first that questioning Bailey may have compromised the trial
court’s role as a neutral arbiter. A trial court could compromise its role if it assumed the
advocacy role of one side’s attorney in questioning a witness. On this record, though, we
see no problem with the way the court proceeded.
In general, “[a] trial court has both the discretion and the duty to ask questions of
witnesses, provided this is done in an effort to elicit material facts or to clarify confusing
or unclear testimony” and so long as the court does not “assume the role of either the
prosecution or of the defense. [Citation.] The court’s questioning must be ‘ “temperate,
nonargumentative, and scrupulously fair” ’ [citation], and it must not convey to the jury
the court’s opinion of the witness’s credibility.” (People v. Cook (2006) 39 Cal.4th 566,
597.)
Bailey was unrepresented in the trial court, while Murray was represented by
counsel. Bailey was the first witness at the hearing. Rather than have Bailey go through
the pretense of posing questions to herself and then answering them, the trial court asked
Bailey general questions that allowed her to tell the trial court the basis for her request for
a DVRO. Murray questioned the procedure at the hearing, and the trial court explained its
rationale for asking questions and reassured Murray he would be able to object and to
cross-examine Bailey.
Our review of the questioning convinces us the trial court did not compromise its
neutrality. As the court indicated it would do, it asked general, open-ended questions,
such as the following: “You stated that an incident occurred on March 27th, 2023, that
10
caused you to file for a domestic violence restraining order. Can you tell the Court
specifically what happened during that incident that caused you to file for a restraining
order?” “And so what happened on [Super Bowl Sunday, February 2023] that caused you
to file the request?” “Anything else you want to tell the Court about why you are
requesting a restraining order?” These questions elicited Bailey’s testimony about the two
incidents of sexual abuse. They were not questions that were in some way advocacy for a
side. The trial court’s remaining questions sought details and clarifications from Bailey
and were equally unobjectionable. We conclude the trial court acted appropriately in
conducting this questioning, restricting itself to eliciting material facts with general
questions and clarifying confusing and incomplete testimony.
Murray also objects the trial court deprived him of due process by “admonishing
this counsel how to examine his own client.” The objection seems to be to the trial
court’s suggestion that counsel avoid leading questions while examining Murray. “[S]o a
lot of the questions that you ask are very leading because they suggest a response. When
people testify it’s helpful to know what they actually saw or witnessed, so he hasn’t
testified as to Ms. Bailey’s demeanor or affect at any point. He’s just answered ‘no’ to
your questions about it. . . . [¶] It was okay when you were asking the adverse witness
leading questions. That’s fine, of course, but I’m not really getting very much
information from your client . . . when you ask him leading questions. The more open-
ended answers that he’s provided as he’s about to do are more helpful so the Court can
get more information from his perspective about what he saw, heard, and so forth.”
11
This was sound advice, not a violation of due process. In the first place, the trial
court did not strike counsel’s questions or the answers they elicited. Rather, the court
allowed the answers to stand but provided Murray’s counsel guidance on how to elicit
testimony that might be more useful to a fact finder. Thus, the comments did not limit
Murray’s ability to present evidence, and, if anything, assisted him in presenting his case.
Since the trial court was the fact finder, there was no danger that the court’s comments
would influence jurors. The trial court did not err in providing this advice. Even if the
court had erred, we would find it harmless because the court allowed the testimony.
Murray next objects that the trial court allowed Bailey to testify about incidents of
abuse she did not allege in her petition. Murray objected on this basis to Bailey’s
testimony about the alleged sexual assault in January 2021. Bailey conceded the incident
did not appear in her petition, though she said she told the person who helped her fill out
the petition about it. The trial court allowed the testimony on the ground that the law
required the admission of evidence concerning all incidents of abuse in the same category
as the abuse alleged in the petition.
We agree with the trial court’s decision. The DVPA “does not impose on a victim
of domestic abuse a pleading obligation that he or she describe all individual actions
taken by the alleged abuser in the DVRO request in order later to testify about those acts
at the hearing, as long as the alleged abuser is placed on notice of the general
allegations.” (In re Marriage of Davila and Mejia, supra, 29 Cal.App.5th at p. 222.)
Bailey’s allegations of sexual assault provided notice giving Murray a “meaningful
12
opportunity to respond to the specific allegations at the hearing, and to request a
continuance if he need[s] additional time to respond.” (Id. at 239.) If Murray was not
prepared to respond to Bailey’s specific allegations concerning the January 2021, then he
could have requested a continuance. (§ 245, subd. (b) [hearing on request for DVRO may
be continued for good cause upon request by either party].) Murray did not request a
continuance, but instead testified their sexual activity was consensual.
The admission of evidence concerning abuse that occurred after she filed her
petition “is also relevant, particularly when that abuse occurs after a temporary
restraining order has been issued.” (In re Marriage of F.M. & M.M., supra, 65
Cal.App.5th at p. 117.) This is so because “[t]he purpose of a domestic violence
restraining order is not to punish past conduct, but to ‘prevent acts of domestic violence
[and] abuse’ from occurring in the future.” (Ibid.) The trial court was required to consider
the evidence that Murray had violated the TRO by continuing to attend church with
Bailey and by continuing to possess a firearm. (N.T. v. H.T., supra, 34 Cal.App.5th at
p. 602.) “Section 6203, subdivision (a)(4) specifically provides that engaging in behavior
that has been enjoined pursuant to section 6320 constitutes abuse for purposes of the
DVPA.” (Ibid.) Murray was ordered to turn over any firearms in his possession and cease
attending services at the church. The trial court found he failed to turn over a firearm but
continued to attend the church, both violations of the TRO and therefore additional acts
of abuse under the express terms of the statute.
13
Finally, Murray argues the trial court deprived him of the opportunity to contest
whether he continued to possess a firearm in violation of the TRO. Specifically, Murray
argues he “never had an opportunity to contest the [trial court’s] independent
CONCLUSION that Appellant was in fact the registered gun owner per THE CLETS
REPORT WHICH THE COURT NEVER DISCLOSED TO ANYONE.” This
characterization misrepresents what happened in the trial court.
The court was solicitous of Murray’s rights during the DVRO proceedings. After
the court issued the TRO, it inquired of Murray whether he owned or possessed a firearm.
He represented he did not have a gun at his first court appearance, but Bailey said she
believed he did. At a later hearing, the trial court notified Murray a standard criminal
history report showed he was the registered owner of a Smith and Wesson 9-millimeter
handgun. The trial court informed him that continued possession of the firearm would be
a violation of the TRO and require the court to report him. The court provided Murray
with form DV-800, which would enable him to establish he had transferred the weapon to
another registered user.
Murray’s counsel filled out and submitted the form, but it came out the next day
the submission was inaccurate, and Murray had not transferred the gun to a registered
dealer. The trial court admonished him that failure to submit a revised form could result
in legal consequences, including a finding that he had violated the TRO. However,
Murray, through counsel, made the choice to invoke his Fifth Amendment right against
self-incrimination and not answer questions about the gun other than to state that he was
14
no longer in possession of it. Based on the law enforcement report, the trial court found
Murray was in possession of a firearm and found he had violated the TRO.
We conclude Murray’s position on appeal is simply counterfactual. The trial court
gave Murray several opportunities to respond to the report that he was the registered
owner of a firearm, and he refused to respond fully. There was no procedural due process
error. And while Murray claimed after the trial court had ruled that he had never
possessed the firearm and questioned the veracity of the report, the court did not change
its ruling. Since Murray does not challenge the sufficiency of the evidence for the court’s
finding, we do not address that question.
III
DISPOSITION
We affirm the order granting a domestic violence protective order. Bailey is
entitled to recover any costs she incurred on appeal.
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
MILLER J.
15
Filed 6/5/24 CERTIFIED FOR PUBLICATION COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
CHARNAE BAILEY, E081558 Plaintiff and Respondent, v. (Super.Ct.No. FAMSB2301122) JASON MURRAY, Defendant and Appellant. ORDER CERTIFYING OPINION FOR PUBLICATION _______________________________________
THE COURT
The request for publication filed on May 29, 2024 is GRANTED. The opinion meets the standard for publication as specified in California Rules of Court, rule 81105(c). IT IS ORDERED that the opinion filed in this matter on May 9, 2024 be certified for publication.
CERTIFIED FOR PUBLICATION
RAPHAEL J.
We concur:
McKINSTER Acting P. J.
MILLER J.
16
AI Brief
AI-generated · verify before citing
Holding. The trial court did not violate the appellant's procedural due process rights by questioning the unrepresented petitioner, providing guidance on examination techniques, admitting evidence of unpled abuse, or addressing the appellant's failure to comply with firearm surrender requirements. The court's procedures were adequate to elicit facts and ensure a fair hearing under the Domestic Violence Prevention Act.
Issues
Did the trial court violate procedural due process by conducting direct examination of an unrepresented petitioner?
Did the trial court err by allowing testimony regarding incidents of abuse not specifically alleged in the initial petition?
Did the trial court violate due process by admonishing defense counsel regarding the method of questioning his client?
Did the trial court deny the appellant an opportunity to contest evidence regarding his firearm ownership and compliance with the temporary restraining order?
Disposition. affirmed
Quotations verified verbatim against the opinion
“Because we conclude the procedures in the trial court were adequate, we affirm the protective order.”
“The DVPA “does not impose on a victim of domestic abuse a pleading obligation that he or she describe all individual actions taken by the alleged abuser in the DVRO request in order later to testify about those acts at the hearing”
“The trial court gave Murray several opportunities to respond to the report that he was the registered owner of a firearm, and he refused to respond fully. There was no procedural due process error.”