Full Opinion

Filed 11/3/26 P. v. Tristao CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F091003 Plaintiff and Respondent, (Super. Ct. No. 25CV-05052) v. DEREK JOSEPH TRISTAO, OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Merced County. Stephanie Jamieson, Judge. Tully & Weiss, Alan K. Kagawa, for Defendant and Appellant. No appearance for Plaintiff and Respondent. -ooOoo- * Before Meehan, Acting P. J., Snauffer, J. and Harrell, J. Appellant Derek Joseph Tristao appeals the trial court’s denial of his petition challenging a disqualified person determination. He contends the trial court erred in determining he was a disqualified person under Penal Code 1 section 26202 because “the record does not reflect any findings as to whether [a prior] temporary domestic violence restraining order had been issued ex parte or after a hearing.” Because Tristao failed to provide an adequate record on appeal and the provision he cites to support his position is inapplicable here, we affirm. BACKGROUND Sometime prior to November 13, 2023, a domestic violence restraining order (DVRO) was issued against Tristao under Family Code section 6300, et seq. The DVRO expired on November 13, 2023. Sometime between November 13, 2023, and September of 2025, 2 Tristao applied for a concealed carry permit, but his application was denied pursuant to section 26202. On September 22, Tristao filed a “Request [for] Hearing to Challenge Disqualified Person – PC 26206” in Merced County Superior Court. Thereafter, the following occurred in the superior court: (1) a “Report Re: Criminal History Re: [Tristao]” was filed under seal; (2) Tristao filed a declaration; (3) the court held a hearing on October 22, continuing the matter until November 19 to await a response from the People; (4) Tristao filed a declaration titled “re: Four Character Reference Letters”; and (5) the People filed a Response under seal. On November 19, the court held a hearing in camera, which was electronically recorded. The court noted it read and considered Tristao’s request and the People’s response, then heard testimony from a Merced County sheriff’s deputy. In denying Tristao’s request, the court stated: 1 Undesignated statutory references are to the Penal Code. 2 All further dates refer to the year 2025 unless otherwise stated 2. “[T]he District Attorney has met the burden of proof by a preponderance of the evidence in accordance with the strict interpretation of the law. The Court does not have the discretion to deviate from the requirements outlined in Penal Code 26202. According to these requirements, [Tristao] is considered a disqualified person because [he] had a temporary restraining order terminated less than five years prior to submitting [his] application for a concealed weapon carrier permit.” On December 8, the court issued an order after hearing, making the following findings: “1. [Tristao] has been subject to a restraining order issued pursuant to Penal Code section 26202(a)(3)(B). “2. That restraining order was terminated on November 13, 2023, which is within five (5) years of [Tristao] submitting his request for renewal of his application for a License to Carry a Weapon Capable of being Concealed (CCW). “3. The People have met their burden in establishing that [Tristao] is a disqualified person. “4. The Court has no discretion to make a contrary determination regarding the issuance of a CCW.” On December 22, the court issued another order after hearing, where it referred to the DVRO as a “temporary restraining order,” and where it otherwise restated its findings made in the November 19 minutes. Defendant filed a notice of appeal on January 5, 2026. On March 5, 2026, Tristao filed an amended notice designating the record on appeal. Therein, he requested a clerk’s transcript consisting of the notice of appeal, the amended designation of the record on appeal, the December 9 judgment/order appealed from, and a document entitled “Proof of CCW Insurance provided to Court and counsel at hearing 11/19/2025.” Tristao also requested a reporter’s transcript of the November 19 hearing, and he sought a record from an administrative proceeding entitled “Renewal of Standard CCW License Number 035860374 Denial 9-16-25.” The clerk’s transcript was filed May 15, 2026. Alongside this, the deputy appellate clerk filed a declaration, stating: 3. “[T]he following hearing(s) is/are not part of the court’s appellate record: “-Item #5b. PROCEEDINGS: (1) - The Reporter’s Transcript on Appeal for the hearing date of November 19, 2025. There was no reporter present, and the hearing was recorded via FTR Electronic Recording. “[T]he following document(s) is/are not part of the court’s record: “-#3 RECORD OF AN ADMISTRATIVE PROCEEDINGS TO BE TRANSMITTED TO THE COURT OF APPEAL: ‘Renewal of Standard CCW License Number 035860374.’ - 09/16/2025. There is no such document filed in the case. “-#4 NOTICE DESIGNATING CLERK’S TRANSCRIPT: b. (8) - Proof of CCW Insurance provided to Court and counsel at hearing. There is no such document filed in the case.” This declaration was served on Tristao, and the court notified him the record on appeal had been filed. Tristao filed his opening brief on June 25, 2026. The People did not file a response brief. DISCUSSION Because no response brief was filed, we examine the record and consider the opening brief to determine whether the trial court’s ruling was prejudicial error. (Cal. Rules of Court, rule 8.220(a)(2).) Tristao’s core argument on appeal is that “[t]he record does not reflect any findings as to whether the temporary domestic violence restraining order had been issued ex parte or after a hearing.” While true, this is primarily because Tristao failed to procure a record sufficient for the court to decide the legal issue presented. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on [the] appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 (Jameson).) Because the burden is on the appellant to show error, courts have 4. long held that the appellant is responsible for providing an adequate record on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “ ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.’ ” (Jameson, supra, 5 Cal.5th at p. 609.) The appellate court is not permitted to speculate as to the contents of the missing portions of the record or to issues that may have been raised below. (See Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Here, the record on appeal consists only of a limited clerk’s transcript. Thus, we treat this as an appeal “on the judgment roll,” to which the following rules apply: “ ‘ “Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment [or order] on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation] ... and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it ....” ’ ” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574‒575 (Elena S.).) In a judgment roll appeal, “we ‘ “must conclusively presume that the evidence is ample to sustain the [trial court’s] findings.” ’ [Citation.] Our review is limited to determining whether any error ‘appears on the face of the record.’ ” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324–325.) Here, Tristao cites section 26202, subdivision (a)(3)(B), which reads: “[A]n applicant shall be deemed to be a disqualified person and cannot receive or renew a [CCW] license … if the applicant[:] [¶] … [¶] “(3) Has been subject to any restraining order, protective order, or other type of court order issued pursuant to [Part 4 (commencing with Section 6300) of Division 10 of the Family Code] …, unless … that order expired or was vacated or otherwise canceled and the applicant did not receive notice and an opportunity to be heard before the order was issued.” 5. He accurately contends nothing in the record indicates whether the DVRO, issued sometime prior to November of 2023, was in fact issued on an ex parte basis. This is true, however, because Tristao failed—despite ample opportunity—to procure an adequate record for this court to make a proper determination. (See Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302 [“[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.”].) The register of actions shows that the following documents were filed in this case: (1) a “Report Re: Criminal History Re: [Tristao]”; (2) a declaration from Tristao; and (3) the People’s response. Tristao did not request any of these documents in his designation of the record. He did request a document entitled “Proof of CCW Insurance provided to Court and counsel at hearing 11/19/2025,” as well as a record from the administrative proceeding entitled “Renewal of Standard CCW License Number 035860374 Denial 9-16-25.” The trial court deputy clerk filed and served on Tristao an affidavit noting those documents were not part of the court’s record, yet Tristao made no further attempt to augment the record. Finally, while Tristao requested a reporter’s transcript, the November 19 hearing was electronically recorded but not transcribed by a court reporter. When notified of this fact, Tristao took no action to obtain an approved or settled statement. (Elena S., supra, 247 Cal.App.4th at p. 574 [“A proper record includes a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal.”].) Thus, we presume that at the November 19 hearing, the court was made aware that Tristao had notice of the DVRO and an opportunity to be heard. (Cal. Rules of Court, rule 8.130; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“[I]t is presumed that the unreported trial testimony would demonstrate the absence of error.”].) Simply, we are not permitted to speculate on the nature of the DVRO and must presume 6. the evidence supports the judgment. (Jameson, supra, 5 Cal.5th at p. 609; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.) As to what we glean from the limited record, the court’s November 19 minute order and December 22 order each describe the DVRO as a “temporary restraining order.” But this is not the same as demonstrating that Tristao did “not receive notice and an opportunity to be heard before the order was issued,” as required by section 26202. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2026) ch. 5-C [“There is, of course, nothing to prevent the opposing party from appearing at a hearing in which ex parte relief is sought.”].) Absent documents in the record showing otherwise, we presume Tristao had notice and an opportunity to be heard for the DVRO and find no error. (Elena S., supra, 247 Cal.App.4th at pp. 574–575.) Even assuming for the sake of argument the “temporary restraining order” was issued without notice to Tristao and opportunity to be heard, we would detect no error here. The specific portion of section 26202 Tristao relies upon was only recently added to the statute by Assembly Bill No. 1078 (2025-2026 Reg. Sess.) (Stats. 2025, ch. 570, § 8). These amendments became effective January 1, 2026. (See § 26202, former subdivision (a)(3), effective January 1, 2024 to December 31, 2025 [allowing for an exception to the “disqualified person” requirement only where the DVRO “expired or was vacated or otherwise canceled more than five years prior to the licensing authority receiving the completed application”].) Nothing in the amended statute or Assembly Bill No. 1078 shows the Legislature intended these amendments to section 26202 were to apply retroactively. (People v. Burgos (2024) 16 Cal.5th 1, 11 [“ ‘[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the [lawmakers] ... must have intended a retroactive application.’ ” Accordingly, ‘ “a statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective.” ’ ”].) Thus, even if the record before us were sufficient to show Tristao had no notice of the prior DVRO or an 7. opportunity to be heard, Tristao would not be entitled to the relief sought. Section 26202 did not provide for such relief at the time of the order in this case. DISPOSITION The judgment is affirmed. 8.