Error and/or relief
Whether or not the court had the right to issue a protective order during the proceedings prior to entry of judgment, the court failed to terminate the protective order following the judgment. Remanded for that purpose.
First Holding:
The trial court issued a pretrial criminal protective order on behalf of the victim after the defendant entered his plea. The trial court did not make any findings on the record but ordered no contact with the victim and a 100-yard stay away order There were no objections from counsel. According to the criminal protect order, the orders remain in effect until further court order.
The court had no authority to issue a protective order under section 136.2(a) after sentencing, and it did not issue one. But the order that it made after the guilty plea stated it was to remain in effect until further order of the court, which the court never made. We therefore remand to the trial court to issue a proper notice of termination of protective order so that proper authorities will know that the order has expired.
Authority:
People v. Lopez (2022) 75 Cal.App.5th 227, 236
Second Holding:
Section 136.2 is limited to the pendency of a criminal action because section 136.2 is aimed at protecting only victims or witnesses.
Authority:
PEN 136.2(a)
People v. Selga (2008) 162 Cal.App.4th 113, 118
People v. Stone (2004) 123 Cal.App.4th 153, 159 superseded in statute as stated in Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 960, related to the issuance of restraining orders in domestic violence cases
(Gary Musings:
(This case had an interesting twist. The attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436. A Wende brief is filed when appointed counsel determines that there are no arguable issues to raise in the appeal. After setting forth the statements of the case and facts sufficient to guide the Court of Appeal, the brief asks the appellate court to independently review the entire record to determine whether there are issues that counsel should brief. The defendant is given an opportunity to submit a supplemental brief in which the defendant argues whatever the defendant believes to be an issue.
(The Wende brief process is available only in appointed appeals, and applies only to the first appeal of right–essentially to the direct appeal from the conviction initiated within the timeframe for the filing of a notice of appeal following entry of judgment. Wende was California’s ultimate answer to the U.S. Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738. In essence, I assume there was concern that appointed counsel may have less incentive to go the whole mile for the client.
(Keep in mind we’re talking about conditions more than 60 years ago, around the time Gideon v. Wainwright (1963) 372 U.S. 335 extended the Sixth Amendment right to counsel to the states under the Fourteenth Amendment. While I am certain that there were many attorneys who diligently sacrificed many hours for their indigent client, I also assume that there must have been concern that maybe not all attorneys put in as much effort on appointed cases as they would for their wealthy clients. The independent review of the record by the court was designed to protect the indigent defendants from inadequate effort.
(There’s probably much more to it than I stated, and perhaps I even have missed the mark on why Anders came about. But regardless of what was written, I suspect there was some wink wink nod nod behind the scenes recognizing that some cases demonstrated a tad bit of underrepresentation. Maybe I’m wrong. It doesn’t change the quirk in this case, however.
(By the way, the same concern–whatever it might have been–does not arise with retained counsel. Presumably retained attorneys have a financial incentive to do as much as they possibly can for their clients.
(All that is background–accurate or not–for the twist in this case. The defendant’s supplemental brief essentially was a challenge to his guilty plea. Thus, a certificate of probable cause would normally be required, under section 1237.5 and Rules of Court, rule 8.304(b). Had appointed counsel attempted to raise the arguments the defendant raised on his own, the court would not have been permitted to address the issues, because there is no latitude when an issue requires a certificate of probable cause and one has not been issued.
(But in this case, the court concluded that Wende requires it to conduct a full review of the record and to address with reasons all of the issues presented by the defendant in a supplemental brief. Specifically, in People v. Kelly (2006) 40 Cal.4th 106, the Supreme Court imposed a judicial principle that when an indigent defendant submits a supplemental brief following counsel’s filing of a Wende brief, the appellate court must address all of the issues raised and state reasons for its conclusions on their merits.
(In this case, the Court of Appeal concluded that the lack of a certificate of probable cause was not a bar to its review of the issues raised by the defendant himself in a supplemental brief, in compliance with Wende and Kelly.
(Keep in mind that this is NOT a published opinion, and thus cannot be cited to compel an appellate court to ignore the absence of a certificate of probable cause when reviewing a defendant’s post-Wende supplemental brief. But Wende and Kelly were published opinions, and there’s no reason that I am aware of that counsel could not urge the court to grant a petition for rehearing if the court declined to address the defendant’s supplemental brief issues because of a lack of a certificate of probable cause.)
Authority (the middle two only in Gary Musings):
People v. Wende (1979) 25 Cal.3d 436
Gideon v. Wainwright (1963) 372 U.S. 335
Anders v. California (1967) 386 U.S. 738
People v. Kelly (2006) 40 Cal.4th 106