Error and/or relief
The court erred in including nonvictims in its postconviction protective order under section 136.2(i)(1).
First Holding:
Section 136.2(i)(1) provides that when a defendant has been convicted of a crime that requires the defendant to register as a sex offender, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The trial court does not have authority to restrain a defendant from contacting a person who was not a victim of the crime.
Authority:
People v. Pena (2025) 113 Cal.App.5th 640, 648
Second Holding:
The term “victim” under section 136.2 is not limited to only those individuals named in the charge for which the defendant was convicted. A victim may include anyone with respect to whom there is reason to believe that any crime is being or has been perpetrated or attempted to be perpetrated. Thus, a “victim of the crime” may include a person not named in the count on which the defendant was convicted, so long as that person was a victim of the same crime.
It is possible for a protective order to protect more than one person/victim and the statute does not require that a person be expressly identified in a charging instrument in order to be considered a victim. A protective order is available for one or more persons as long as each person is a ‘victim’ of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted.
Authority:
People v. Pena (2025) 113 Cal.App.5th 640, 647
People v. Walts (2025) 112 Cal.App.5th 127, 142, 143-144, fn. 4
Third Holding:
Several courts have vacated protective orders where the persons listed in the protective orders either were not present during the incident or did not suffer harm as a result of the offense for which the defendants were convicted.
Authority:
People v. Pena (2025) 113 Cal.App.5th 640, 648–649 [Person A was not present when Pena committed sexual battery against the victim]
People v. Walts (2025) 112 Cal.App.5th 127, 144 [the defendant’s ex-wife and the other children did not suffer continuous sexual abuse]
People v. Lopez (2022) 75 Cal.App.5th 227, 237 [the minor children were present but asleep during incident]