Autolino v. Thomas CA4/1

Filed 5/22/25 Autolino v. Thomas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHARLENE CONCEPCION D083390

AUTOLINO,

Plaintiff and Respondent,

(Super. Ct. No. 37-2023-

v.

00048931-CU-HR-SC)

KEITH THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Timothy R. Walsh, Judge. Affirmed.

Keith Thomas, in pro. per., for Defendant and Appellant.

Charlene Concepcion Autolino, in pro. per., for Plaintiff and

Respondent.

Keith Thomas appeals a civil harassment restraining order entered

against him for the protection of Charlene Concepcion Autolino. He argues

the order is not supported by substantial evidence. We disagree. Hence we

affirm.

I.

Background

On November 13, 2023, Autolino filed in the superior court a request

for a civil harassment restraining order. The following facts are taken from

her declaration in support of her request. She worked “in the field of reentry”

and was the chair and a longtime member of the executive committee of the

San Diego Reentry Roundtable. In 2008 she served as PACT1 coordinator for

the Chula Vista Police Department. In that capacity she met with parolees,

and one of those parolees was Thomas. When she noticed one day that he

had a gun in his backpack, she reported him to law enforcement agents and

he was arrested. He was placed in Patton State Hospital after having been

found incompetent to stand trial. After about a year and a half, his case was

tried. During the course of the trial, he fired three public defenders and

ultimately represented himself, including in cross-examining Autolino after

she had “testified against him.” Ultimately he was convicted and

incarcerated.

In October 2020, Autolino received a call from an employee of the

district attorney’s office, who said Thomas was requesting her home address

in order that she might be served with papers relating to a claim that she had

testified falsely against him.

Then, on March 9, 2023, a month after Thomas had been released from

prison, she received a call on her cell phone from an unidentified caller. The

unidentified caller asked her several questions about the Rock Church and

the San Diego Reentry Roundtable. When she inquired as to his identity, he

1 PACT appears to be a program that serves parolees reentering society.

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responded, “Keith Thomas.” Autolino responded by referring him to some

unspecified resources. Then she “contacted parole” and, within two hours,

“Agent Nathan Galbraith had [Thomas] sign a ‘no contact order’ in addition

to his conditions of parole.” “At that point [Autolino] was extremely fearful

that [Thomas] was going to try to locate [her] as now he had [her] cell phone

number.”

Later the same year, on November 5, Autolino received a notification

on her cell phone indicating that Thomas had requested to follow her on

Instagram. “This was clearly in violation of the ‘no contact order,’ ” so she

“immediately contacted Agent Galbraith.” Days later, “parole communicated

that Mr. Thomas . . . [had been taken] back into custody” and that, “during

their search of his phone[,] they found screenshots” of Autolino and “a lot of

information . . . about” her.

For the hearing on Autolino’s request for a restraining order, Thomas

was produced from custody. Little is known of what happened at the hearing

because the record on appeal includes no transcript of the hearing; nor does it

include any objections to Autolino’s declaration. It does, however, include two

orders that were entered at the end of the hearing: (1) a minute order

indicating that Autolino and Thomas each testified at the hearing; and (2) a

restraining order against Thomas for the protection of Autolino.

After the restraining order issued, Thomas timely appealed.

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II.

Discussion

A. Code of Civil Procedure Section 527.6

Section 527.6 of the Code of Civil Procedure2 governs civil harassment

restraining orders. It permits a person who “has suffered harassment” to

seek injunctive relief for their protection. (§ 527.6, subd. (a)(1).)

One form of harassment that warrants imposition of a restraining

order is “a knowing and willful . . . course of conduct that would place a

reasonable person in fear for the person’s safety or the safety of the person’s

immediate family, and that serves no legitimate purpose.” (§ 527.6, subd.

(b)(2).) A second such form of harassment is “a knowing and willful course of

conduct directed at a specific person that seriously alarms, annoys, or

harasses the person, and that serves no legitimate purpose.” (Id., subd.

(b)(3).) For this latter form of harassment to warrant imposition of a

restraining order, it must be of a sort that “would cause a reasonable person

to suffer substantial emotional distress,” and it must “actually cause

substantial emotional distress to the petitioner.” (Ibid.)

As can be seen, each of these two types of harassment is premised on

the existence of a “course of conduct.” (§ 527.6, subd. (b)(2) & (3).) To qualify

as a “course of conduct” within the meaning of section 527.6, activity must

amount to “a pattern of conduct composed of a series of acts over a period of

time . . . evidencing a continuity of purpose, including following or stalking an

individual, making harassing telephone calls to an individual, or sending

harassing correspondence to an individual by any means” (§ 527.6, subd.

(b)(1)), and it must not be constitutionally protected. (Ibid.)

2 All further statutory references are to the Code of Civil Procedure.

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A trial court from which relief is sought under section 527.6 may enter

a temporary restraining order to provide short-term relief. (Id., subds. (d) &

(f).) Before it can enter a restraining order providing longer-term relief, it

must conduct a hearing at which it “shall receive any testimony that is

relevant, and may [also] make an independent inquiry.” (Id., subd. (i).)

Following such a hearing, “[i]f the judge finds by clear and convincing

evidence that unlawful harassment exists, an order shall issue prohibiting

the harassment.” (Ibid.)

B. Standard of Review

When a court of appeal “review[s] a [trial court’s] finding that a fact has

been proved by clear and convincing evidence, the question before [it] is

whether the record as a whole contains substantial evidence from which a

reasonable fact finder could have found it highly probable that the fact was

true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996; see also id. at

p. 1009 [“the question . . . is not whether the appellate court itself regards the

evidence as clear and convincing; [rather,] it is whether a reasonable trier of

fact could have regarded the evidence as satisfying this standard of proof”].)

“Consistent with well-established principles governing review for sufficiency

of the evidence, in making this assessment the appellate court must view the

record in the light most favorable to the prevailing party below[,] . . . giv[ing]

due deference to how the trier of fact may have evaluated the credibility of

witnesses, resolved conflicts in the evidence, and drawn reasonable

inferences from the evidence.” (Id. at p. 996.)

C. Analysis

As noted ante, Thomas contends the restraining order at issue here

should be reversed because it is not supported by substantial evidence. But

this argument suffers from a fundamental defect inasmuch as the absence of

a hearing transcript renders the record fatally incomplete. “ ‘When a finding

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of fact is attacked on the ground that there is not any substantial evidence to

sustain it, the power of an appellate court begins and ends with the

determination as to whether there is any substantial evidence contradicted or

uncontradicted which will support the finding of fact.’ ” (Foreman & Clark

Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “Where no reporter’s transcript has

been provided and no error is apparent on the face of the existing appellate

record, the judgment must be conclusively presumed correct as to all

evidentiary matters,” such that “an appellant who attacks a judgment but

supplies no reporter’s transcript will be precluded from raising an argument

as to the sufficiency of the evidence.” (In re Estate of Fain (1999) 75

Cal.App.4th 973, 992; Foust v. San Jose Construction Co., Inc. (2011) 198

Cal.App.4th 181, 186–187 [observing that appellant’s “[f]ailure to provide an

adequate record on an issue” is “fatal” inasmuch as it “requires that the issue

be resolved against [him],” and cataloging “numerous situations” in which

“appellate courts have refused to reach the merits of an appellant’s claims

because no reporter’s transcript of a pertinent proceeding or a suitable

substitute was provided”]; see also Jameson v. Desta (2018) 5 Cal.5th 594,

608-609; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132;

Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) This failure of proof

defeats Thomas’s argument that the order is not supported by substantial

evidence.

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III.

Disposition

The judgment is affirmed. Autolino is entitled to costs on appeal.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.

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