Julian Cardenas-Najarro v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Annunziata
UNPUBLISHED
Argued at Alexandria, Virginia
JULIAN CARDENAS-NAJARRO
MEMORANDUM OPINION* BY
v. Record No. 0699-13-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 4, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge
Thomas K. Plofchan, Jr. (Lavanya K. Carrithers; Westlake Legal
Group, on briefs), for appellant.
Susan Baumgartner, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Julian Cardenas-Najarro, appellant, appeals his conviction of violating the terms of a
preliminary protective order. Appellant argues the Commonwealth failed to prove he had notice of
the terms of the preliminary protective order and that he intended to violate the terms of the order.
The evidence was sufficient to prove appellant had adequate notice of the terms of the preliminary
protective order and that he intended to violate it. We affirm the trial court’s judgment of
conviction.
Background
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987)). “The credibility of the witnesses and the weight accorded the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence
as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
Viewed in this light, the Commonwealth’s evidence proved that on August 30, 2012, Nelly
Nunez, appellant’s wife, obtained a preliminary protective order against appellant from the juvenile
and domestic relations district court. The order prohibited appellant from engaging in acts of family
abuse against Nunez; Johan Cardenas, their son; and Miguel Ramos, appellant’s stepson. The order
directed that appellant have no contact with the family except by telephone with Nunez to “discuss
household bills.” The same day the order issued, Deputy Zaldua personally served appellant with
the preliminary protective order. Nunez did not hear the conversation Zaldua had with appellant
outside the house when he served the order. Nunez testified, however, that Zaldua spoke Spanish to
her and she heard him tell appellant in Spanish that he had ten minutes to leave the house.
Nunez testified appellant sent her two text messages on September 1, 2012. The first stated,
“Hola.” The second message was translated to say, “Nelly, please, I want to talk with you and with
Johan. You can tell Miguel that I want to apologize for everything as well. I would like to speak
with him. Forgive me for what happened to you. You’re my family.” On September 2, 2012,
appellant sent another text message which was translated to say, “Please answer your telephone. I
want to speak with him.”
Appellant concedes he was personally served with the order and that he sent the text
messages. However, appellant testified he speaks and understands very little English. Appellant
recounted that Zaldua served the order on him, but Zaldua did not speak fluently in Spanish.
Appellant asserted that Zaldua told him only that he had to leave for fifteen days and could not have
“face-to-face” contact with Nunez. Appellant stated Zaldua did not tell him he could not contact her
by telephone, he did not understand he was not permitted to contact Nunez by telephone, and he did
not intend to violate the preliminary protective order by texting her. Although appellant testified to
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his understanding of what Zaldua told him, Zaldua’s actual statements to appellant were not in
evidence.
The trial court noted appellant was able to answer some questions without the assistance of
the interpreter. The trial court also emphasized that appellant had been working at the same job for
nine years and gave credit to Nunez’s testimony that appellant spoke English in the course of his
employment. The trial court accepted Nunez’s assertion that appellant spoke better English than she
spoke. Finally, the trial court gave weight to Nunez’s account that Zaldua spoke in Spanish, thereby
discounting appellant’s claim that Zaldua did not speak fluently. Reviewing all the evidence before
it, the trial court found it sufficient to prove appellant violated the terms of the preliminary
protective order.
Procedural Default
The Commonwealth contends appellant’s assignment of error does not comply with the
requirements of Rule 5A:20(c) because Rule 5A:12(c)(1) requires the assignment of error “to list,
clearly and concisely and without extraneous argument, the specific error in the ruling below upon
which the party intends to rely.” The Commonwealth argues appellant’s assignment of error does
not include the arguments he makes on brief. Appellant’s assignment of error reads as follows:
The trial court denied Mr. Cardenas due process of law by
determining there was sufficient evidence to prove [he] violated a
preliminary protective order beyond a reasonable doubt based on
(a) inconsistent testimony and uncorroborated evidence from the
complainant, who also does not read, write, or speak English,
regarding Mr. Cardenas’ ability to communicate in English;
(b) evidence that Mr. Cardenas was served with the preliminary
protective order but not evidence that he was explained the terms of
the order in his native tongue; and (c) evidence of the text message
that was sent from his cell phone.
Appellant’s arguments in support of this assignment of error are that (1) he did not receive sufficient
notice of the terms of the protective order because the officer did not explain the terms to him in
Spanish and (2) because he did not have notice of the terms, he did not intend to violate the terms of
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the preliminary protective order. The assignment of error does not encompass the argument
regarding appellant’s intent to violate the order, but does suggest the notice argument in subsection
(b).
“Rule 5A:12 applies only to petitions for appeal. Rule 5A:12 does not apply to opening
briefs, which are filed once a petition for appeal has been granted by this Court. The requirements
for opening briefs are set out in Rule 5A:20.” Calloway v. Commonwealth, 62 Va. App. 253, 258,
746 S.E.2d 72, 74-75 (2013). Rule 5A:20 requires only that the brief contain an assignment of
error, without qualification or description as to what the assignment of error must contain. “[I]f the
Commonwealth seeks to challenge the sufficiency of an assignment of error under Rule 5A:12, it
must do so prior to the granting of the petition for appeal. . . . Compliance with Rule 5A:12(c)(1) is
subject to waiver if not timely raised.” Id. at 259, 746 S.E.2d at 75 (footnote omitted). The
Commonwealth did not file a brief in opposition at the petition stage and, thus, did not raise the
objection to the assignment of error. “The Commonwealth’s failure to object to the sufficiency of
the assignment of error under Rule 5A:12 prior to the granting of the petition for appeal will be
considered a waiver of that objection.” Id. (footnote omitted).
However, the assignment of error must alert the Court to the specific issue being raised.
A properly crafted assignment of error will “point out the specific
errors claimed to have been committed by the court below.” First
Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 341,
56 S.E. 158, 163 (1907) (citation omitted). Such specificity
“enable[s] the reviewing court and opposing counsel to see on what
points plaintiff’s counsel intends to ask a reversal of the judgment or
decree, and to limit discussion to those points.” Id.Whitt v. Commonwealth, 61 Va. App. 637, 646-47, 739 S.E.2d 254, 259 (2013) (en banc).
Appellant’s assignment of error does not address the argument that appellant did not intend to
violate the order. Therefore, we analyze only the intent argument to the extent that appellant’s
intent is established by the sufficiency of the notice he received.
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Further, appellant assigns error to the sufficiency of the evidence based on inconsistent and
uncorroborated evidence of the complainant, subsection (a), and the text messages he sent,
subsection (c). Appellant presented no argument or authority in support of these contentions and,
thus, appellant has abandoned these arguments on brief. See Rule 5A:20(e) (requiring the opening
brief of appellant to contain “[t]he standard of review and the argument (including principles of law
and authorities) relating to each assignment of error”); see also Farmer v. Commonwealth, 62
Va. App. 285, 295-96, 746 S.E.2d 504, 509 (2013); Epps v. Commonwealth, 59 Va. App. 71, 77
n.6, 717 S.E.2d 151, 154 n.6 (2011); Atkins v. Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249,
258 (2010). Thus, we decline to review these issues assigned as error.
Notice of the Order
Appellant contends the Commonwealth failed to prove he had notice of the terms of the
preliminary protective order because Zaldua did not explain the order to him in Spanish. Code
§ 16.1-253.1(A) allows the juvenile and domestic relations district court to “issue a preliminary
protective order against an allegedly abusing person in order to protect the health and safety of the
petitioner or any family or household member of the petitioner.” Code § 16.1-253.1(B) directs that
“the order shall be served forthwith on the allegedly abusing person in person as provided in
§ 16.1-264 . . . .” (Emphasis added.)
In order to hold a litigant in contempt for violation of a court order,
the litigant must have knowledge of the terms of the order. See Tsai
v. Commonwealth, 51 Va. App. 649, 653, 659 S.E.2d 594, 596
(2008) (holding that a court may not hold a person in contempt when
that person never received “notice of any kind” of an order); see also
Calamos v. Commonwealth, 184 Va. 397, 406, 35 S.E.2d 397, 400
(1945) (“Since the evidence fails to show that [the plaintiff] had
actual knowledge or notice of the . . . order . . . the court erred in
holding him (the plaintiff in error) in contempt for violating such
order.”).
Zedan v. Westheim, 60 Va. App. 556, 574, 729 S.E.2d 785, 794 (2012).
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Appellant concedes, and the record reflects, he received personal service of the order.
Zaldua noted on the order’s return that he personally served appellant on August 30, 2012, at
3:25 p.m. The order clearly stated appellant could have no contact with the family members, except
by telephone with Nunez to discuss household bills. Once an order is served on a litigant, the
litigant is deemed to have notice of the document or proceeding. “Personal service satisfies [a]
requirement of actual notice. Appellant’s failure to read the papers or to ascertain their content does
not nullify the fact that he received actual notice.” Smoot v. Commonwealth, 18 Va. App. 562, 566,
445 S.E.2d 688, 691 (1994) (personal service of habitual offender order deemed actual notice,
despite Smoot’s claim he never read or determined contents of the order). Thus, the
Commonwealth met its burden in proving appellant had notice of the order.
Appellant further argues, however, that when he was served with the order the officer did
not “explain[] the terms of the order in his native tongue.” Appellant cites no authority, and we find
none to say, that the process server must explain the document to the recipient in order for him to
have knowledge of the terms of the order. Appellant’s reliance on Tsai, 51 Va. App. at 653, 659
S.E.2d at 596, is misplaced. In Tsai, the Court found Tsai did not have knowledge of the terms of
the order because there was no evidence it had ever been served on her. Thus, she did not have
notice of any kind, personal or otherwise, of the terms of the order.
Here, appellant received personal service and, thus, is charged with notice of the contents of
the order. It is well settled that “[a] court speaks through its orders . . . .” McBride v.
Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). Neither Code § 16.1-253.1 nor
§ 16.1-264 requires the process server to explain or interpret the order being served. If the litigant is
properly served, it is incumbent upon the recipient to learn the import of the order. See Smoot, 18
Va. App. at 566, 445 S.E.2d at 691. The trial court did not err by finding appellant had proper
personal service and notice of the terms of the order.
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Intent to Violate the Preliminary Protective Order
Prohibited acts of contact in protective orders “are intentional acts . . . that intentionally
pierce the protective barrier between the petitioner and the respondent fashioned by the protective
order.” Elliott v. Commonwealth, 277 Va. 457, 464, 675 S.E.2d 178, 182 (2009). Having found
that appellant had notice of the terms of the order, the trial court rejected appellant’s evidence that
he did not understand English sufficiently and that he thought he was prohibited only from having
“face-to-face” contact with family members. The trier of fact is not required to accept a party’s
evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986),
but is free to believe and disbelieve in part or in whole the testimony of any witness, Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). At trial, appellant was able to
respond at times without the help of the interpreter and there was evidence that he used English in
his employment of nine years. Nunez also testified that Zaldua spoke Spanish. The trial court
reasonably could rely on this evidence to determine that appellant had sufficient understanding to
recognize he was violating the terms of the order.
Appellant had notice of the terms of the preliminary protective order. Appellant admitted
sending the text messages, an intentional act of contact with Nunez. The evidence adduced at trial
supports the trial court’s finding that appellant intended to violate the order.
Conclusion
The evidence proved that after proper service of the order prohibiting contact, appellant sent
three text messages to Nunez, not for the purpose of discussing household bills. Based on the return
of personal service, appellant had notice of the terms of the order and he acted intentionally in
violation of those terms. Accordingly, the evidence was sufficient to find beyond a reasonable
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doubt that appellant violated the preliminary protective order. We affirm the judgment of the trial
court.
Affirmed.
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