Tuesday, June 25, 2019
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed a domestic violence restraining order because the bench officer refused to allow cross-examination of the accuser.
Then-Los Angeles Superior Court Commissioner James E. Blancarte (now a judge of that court) issued a restraining order in favor of Samia Salinas and against her brother-in-law, Carlos Cruz, based on an alleged act of violence. Reversal came in an unpublished opinion by Justice Laurie Zelon of Div. Seven.
By barring cross-examination, she said, Blancarte breached Cruz’s federal constitutional right to due process and violated his right under Family Code §217 to present live testimony.
“Courts have long recognized the importance of cross-examination and its crucial relationship to the ability to defend against accusations, deeming it a due process right that is fundamental to a fair proceeding,” Zelon wrote, adding:
“Where, as here, a petitioner seeking a domestic violence restraining order has testified as to the incidents of abuse, the respondent has a due process right to cross-examine the witness with respect to those allegations.”
Addressing the statutory violation, Zelon declared:
“Because the parties in this case did not stipulate to forgo oral testimony, and the court permitted live testimony, the court was required under section 217 to receive any competent testimony that was relevant, and within the scope of the hearing….Cross-examination of the party who has petitioned for the restraining order constitutes relevant evidence within the scope of the hearing….
“Although Cruz specifically requested to cross-examine Salinas, the trial court denied that request when it abruptly terminated the proceedings during [her husband’s] testimony, informing the parties it had ‘heard enough,’ and was taking the matter under submission. The trial court’s failure to allow Cruz to cross-examine Salinas violated section 217.”
The opinion instructs that the Superior Court scrap the restraining order, reinstate a temporary restraining order, and hold a new hearing.
The case is Salinas v. Cruz, B288861.
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