Unreported / Non-Citable
Background
Derek Joseph Tristao was subject to a domestic violence restraining order issued under Family Code section 6300 et seq. that expired on November 13, 2023. Sometime between that date and September 2025, he applied for a concealed-carry (CCW) permit, and the application was denied under Penal Code section 26202 on the ground that he was a disqualified person. On September 22, 2025, he filed a request in Merced County Superior Court for a hearing to challenge that disqualified-person determination under Penal Code section 26206.
The superior court held an electronically recorded in-camera hearing on November 19, 2025, considered sealed submissions and declarations, heard testimony from a sheriff's deputy, and denied the request. Its December 2025 orders found that the restraining order had terminated less than five years before Tristao's licensing request, that the People had met their burden by a preponderance of the evidence, and that the court had no discretion to make a contrary CCW determination. Tristao appealed to the Fifth Appellate District; the People did not appear and filed no response brief.
The Court’s Holding
Because no response brief was filed, the Court of Appeal examined the record and the opening brief under California Rules of Court, rule 8.220(a)(2). It treated the limited clerk's transcript as a judgment-roll appeal: the trial court's ruling is presumed correct, the appellant must affirmatively demonstrate reversible error from the record presented, and the appellate court may not speculate about the contents of missing proceedings. On that record, the court conclusively presumed the evidence supported the trial court's findings and reviewed only for error apparent on the face of the record.
Tristao argued the record did not show whether the earlier restraining order issued ex parte or after a hearing. The court agreed that point was absent from the record but attributed the omission to Tristao's failure to procure an adequate record: the November 19 hearing was electronically recorded but not transcribed by a court reporter, requested documents were not in the court file, and Tristao obtained no approved or settled statement and did not augment the record. The court therefore presumed the hearing established that Tristao had notice and an opportunity to be heard, and held that describing the order as a 'temporary restraining order' did not itself prove lack of notice. Even assuming for the sake of argument that no notice and hearing occurred, the court added, the January 1, 2026 amendment adding the notice-and-opportunity exception to section 26202 was not retroactive and could not provide relief from the 2025 order. The judgment was affirmed.
Key Takeaways
- An appellant challenging a disqualified-person determination must provide a record sufficient to demonstrate error rather than rely on omissions the appellant left uncorrected.
- When a hearing was electronically recorded but not transcribed, the appellant must pursue an approved or settled statement if the hearing matters to the claimed error.
- Describing a domestic violence restraining order as temporary does not establish that it issued without notice and an opportunity to be heard.
- The notice-and-hearing exception added to section 26202 effective January 1, 2026 did not apply retroactively to the trial court's 2025 order.
- The Fifth District affirmed the judgment, leaving the disqualified-person determination and the denial of Tristao's petition intact.
Why It Matters
The decision applies settled judgment-roll principles to a concealed-carry licensing dispute: silence about how a prior restraining order was issued is not affirmative proof of error when the appellant failed to procure the relevant hearing record and available filings. The court's statutory discussion is expressly conditional and separates the 2026 amendment from the law governing the 2025 ruling.
The opinion is not certified for publication and is subject to California Rules of Court, rule 8.1115(a). Its result rests on the inadequate appellate record, with nonretroactivity offered as an alternative ground rather than a factual finding that the original restraining order followed a contested hearing.