Tag Archives: Protective orders

Sentencing

Case 001030

Posted on by Gary McCurdy

Error and/or relief

The trial court was not authorized to include a nonvictim step-granddaughter as a protected person in a protective order issued under section 136.2(i)(1).

Holding:

Section 136.2(i)(1) provides that When a criminal defendant has been convicted of a crime that requires the defendant to register pursuant to section 290(c), the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. To be included as a protected person under section 136.2(i)(1), the person must be a victim of one of the registrable offenses of which the defendant was convicted. The jury did not convict the defendant of any charges against [Person A] for whose benefit the protective order was issued. The trial court therefore was not authorized to include [Person A] as a protected person in the protective order issued under section 136.2(i)(1).

Authority:

PEN 136.2

People v. Walts (2025) 112 Cal.App.5th 127, 142-143

Elements of crime, Sentencing

Case 001019

Posted on by Gary McCurdy

Error and/or relief

Because their was no requisite relationship between the defendant and the victim, it was error for the court to impose a protective order.

First Holding:

Section 136.2(i)(1) and (i)(2) provide in relevant part that when a criminal defendant has been convicted of a crime involving domestic violence, as defined in Penal Code section 13700 or in Family Code section 6211, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim or percipient witness of the crime.

Authority:

PEN 136.2(i)

Second Holding:

Penal Code section 13700 defines domestic violence to mean, in relevant part, abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.

Authority:

PEN 13700

Third Holding:

Family Code section 6211 defines domestic violence to mean, in relevant part, abuse perpetrated against:

(a) A spouse or former spouse;

(b) A cohabitant or former cohabitant;

(c) A person with whom the respondent is having or has had a dating or engagement relationship;

(d) A person with whom the respondent has had a child;

(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; or

(f) Any other person related by consanguinity or affinity within the second degree.

Authority:

FAM 6211

Fourth Holding:

The defendant did not have a relationship with the victim within the meaning of either Penal Code section 13700 or Family Code section 6211. Nor did the defendant’s crimes fall within any of the other offenses enumerated in section 136.2(i), which lists other qualifying offenses including human trafficking, specified sex offenses, and participation in criminal street gang.

Therefore, the post-conviction protective order was unauthorized under section 136.2(i). It must be vacated.

Authority:

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212

Elements of crime, Sentencing, Statutory interpretation

Case 001016

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to issue protective orders, because the defendant was not convicted of a qualifying offense, and the person for whose benefit order was issued was not a victim of the defendant’s crime.

First Holding:

Section 136.2(i)(1) provides authority for the imposition of postconviction protective orders where a defendant is convicted of a qualifying domestic violence offense.

Authority:

PEN 136.2(i)(1)

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

Domestic violence is abuse committed against, among other categories of victims, a person with whom the defendant had a dating relationship. Domestic violence is abuse perpetrated against (a) a spouse or former spouse[; (b) a cohabitant or former cohabitant; (c) a person with whom the respondent is having or has had a dating or engagement relationship; (d) a person with whom the respondent has had a child; (e) [a] child of a party; or (f) any other person related by consanguinity or affinity within the second degree.

“Abuse” is the intentional or reckless causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Section 136(3) defines “victim” as any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other statute or of the United States is being or has been perpetrated or attempted to be perpetrated.

Thus, a postconviction protective order under section 136.2(i)(1) is authorized if: (1) the defendant has been convicted of one (or more) of the statutorily enumerated crimes; and (2) the protected person qualifies as a victim of said crime(s).

Authority:

PEN 13700

FAM 6211

People v. Walts (2025) 112 Cal.App.5th 127, 139

People v. Lopez (2022) 75 Cal.App.5th 227, 237

Third Holding:

Courts do not have inherent authority to issue a criminal protective order absent a statute authorizing such an order.

Authority:

People v. Corrales (2020) 46 Cal.App.5th 283, 286-287

Fourth Holding:

The defendant was not convicted of a domestic violence or other offense that authorized the court to issue a protective order under section 136.2(i)(1). His conviction did not justify a protective order. Nor was the protected person a victim of his crime.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901 [where the defendant’s convictions are not domestic violence offenses, the court does not have statutory authority to impose a postconviction protective order, and it must be stricken]

People v. Pena (2025) 113 Cal.App.5th 640, 648 [the Legislature amended section 136.2(i)(1), in 2018 to specify that a victim is only a victim of the crime the defendant was convicted of committing]

People v. Walts (2025) 112 Cal.App.5th 127, 143 [if there is no reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted is being or has been perpetrated or attempted to be perpetrated against a particular person, that person is not a victim and may not seek, or be named as protected party by, a protective order under section 136.2(i)(1)]

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Smith (2001) 24 Cal.4th 849, 852

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)

Abstracts and Minutes, Sentencing

Case 000914

Posted on by Gary McCurdy

Error and/or relief

After trial, the trial court issued a criminal protective order (CPO) barring the defendant from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting him from dissuading the victim or witnesses from attending court hearings.

The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders for the safe exchange of children and court-ordered visitation.

The CPO should not include the defendant’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. The lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly.

First Holding:

Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered.

Authority:

PEN 136.2

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2(i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. In a postconviction order, the court may bar the defendant from contacting a victim of the crime, or a percipient witness to the crime. The trial court issued the challenged CPO after trial. The trial court erred by entering a pretrial order.

Authority:

PEN 136.2(i)(1) and (i)(2)

People v. Lopez (2022) 75 Cal.App.5th 227, 236-237

People v. Walts (2025) 112 Cal.App.5th 127, 143

Third Holding:

The trial court should not have included the defendant’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. However, nothing in the record indicates that the defendant’s children were victims or percipient witnesses of that crime. As such, there was no basis to include the defendant’s children as protected parties.

Authority:

PEN 136.2(i)(1)

FAM 13700(a) and (b).)

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under sec. 136.2(i)]

Fourth Holding:

The trial court expressed its intention to let the family court deal with any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.

(Gary note: The court did not cite any authority for it order regarding modifying the CPO to permit another court to consider exceptions. When the abstract of judgment or minute order does not comport with the oral pronouncement, the court certainly has the power to make corrections. I have listed some cases on that point below, but keep in mind, they deal with abstracts of judgments and minute orders, not criminal protective orders. But remember that section 1260 grants the appellate courts very broad power to amend the judgment.)

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2