California Court of Appeal Feb 11, 2014 No. E057197Unpublished
Filed 2/11/14 P. v. Inzunza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057197
v. (Super.Ct.No. RIF1206657)
JUAN FRANCISCO INZUNZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed with directions
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Francisco Inzunza pled guilty to willful discharge of
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a firearm in a grossly negligent manner (count 1 – Pen. Code, § 246.3)1, felon in
possession of a firearm (count 2 – § 29800, subd. (a)(1)), and possession of
The court sentenced defendant to an aggregate term of incarceration of six years eight
months. The court additionally issued a criminal protective order under section 136.2
requiring defendant neither have contact with nor come within 100 yards of Prisca
Rodriguez, defendant’s ex-wife, or either of his two minor children for a period of 10
years.
On appeal, defendant contends the court erroneously issued the criminal protective
order because defendant’s ex-wife and children were not victims or witnesses to the
offenses for which he was convicted and were not victims, in the instant case, of
domestic violence. The People dispute whether defendant’s children were victims or
witnesses of the offense, but concede the offenses were not statutory acts of domestic
violence and that the court erroneously issued the protective order because such orders
are limited to the pendency of the criminal action. The People maintain that since the
instant criminal proceeding concluded at entry of judgment, issuance of the protective
order exceeded the court’s authority. We agree with the People and strike the protective
order. The judgment is affirmed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
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FACTS AND PROCEDURAL HISTORY
On September 7, 2012, the People charged defendant by felony complaint with the
willful discharge of a firearm in a grossly negligent manner (count 1 –§ 246.3), of being a
felon in possession of a firearm (Count 2 – § 29800, subd. (a)(1)), of being a felon in
possession of ammunition (count 3 – § 30305, subd. (a)), and possession of
methamphetamine (count 4 – Health & Saf. Code, § 11377). The People additionally
alleged defendant had a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12,
subd. (c)(1)) and had suffered a prior prison term (§ 667.5, subd. (b)).
On September 25, 2012, defendant entered into a plea agreement in which he pled
guilty to counts 1, 2, and 4, and admitted the prior strike allegation. In return, it was
agreed both count 3 and the prior prison allegation would be dismissed and defendant
would be sentenced to the midterms, doubled due to the strike, on each of his offenses.
The factual basis for defendant’s plea consisted of defendant’s in-court admission he had
a previous conviction for a felony and knew he could not possess a firearm, that he
negligently discharged the weapon in the air, and was in possession of
methamphetamine.2
After accepting defendant’s plea, the People offered the in-person statement of
Pedro Perez, defendant’s former brother-in-law. Defense counsel objected to Perez’s
2 Although not required, “the ‘better approach’ in this circumstance is for counsel’s stipulation to include reference to a particular document that provides an adequate factual basis, . . . [S]uch reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, . . .” (People v. Palmer (2013) 58 Cal.4th 110, 118.)
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statement noting he was not a victim. The court apparently overruled the defense
objection in an off-the-record discussion. Perez stated “my entire family was in danger
that day, even though [defendant] doesn’t look at it that way. [¶] So we, my wife, my
daughters have all been affected. And they are fearful that when he gets out, even if he’s
kicked out to Mexico, when he gets out and returns, he wants to do something against my
children.”
The People then offered the statement of Rodriguez. Defendant again objected on
the same basis, noting she was not present when the offenses occurred. The court
implicitly overruled defendant’s objection. Defendant stated his son and daughter were
present during the offenses “playing in the street.” When the court queried defendant
whether he realized how he must have traumatized his children by firing a gun in front of
them, defendant countered “It wasn’t in front of the house. I was down the street because
of the rage, my wife didn’t leave the kids to me when she went to Mexico for her
brother’s funeral, which it hurt me as well.” Defendant indicated he remained in the car
when he fired the shots.
The court asked Rodriguez whether she wanted the requested restraining order
against defendant to include both her and her children. She agreed. The court responded,
“I’m going to give her one. I think this case happened in a – it’s basically a domestic
violence case. As he said, he’s enraged against his wife.” Defense counsel objected
noting Rodriguez “doesn’t qualify. The victim is a person who lived down the street.”
The prosecutor observed, “The neighbor called the police, but the aunt also called the
police, and the kids were present. They’re all victims.” Defendant apparently agreed:
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“Yeah, they’re victims.”
The court reiterated, “All right. I’m going to give you a criminal protective
order.” Defense counsel again objected, “Your Honor, I would object to that. CPS
statute talks about how the case has to be a domestic violence case. Specifically says that
the abuse must be committed against one of the protected parties, spouse, former spouse,
et cetera. And the only victim in this case is” the neighbor.3 Defense counsel observed
“There are no victims here which fall underneath the domestic violence” rubric.
The court noted, “I absolutely totally disagree. [Defendant] said the reason he
came there is he was enraged that his wife placed the children at the aunt’s instead of
allowing him to have custody while she went to Mexico. He was enraged at her for not
letting him have contact. It is absolutely a domestic violence case.” “His kids were the
direct victims. Since the gun was fired in the air in [their] presence, they meet the code,
and she is their caretaker.” Defense counsel responded, “Well, your Honor, the –
factually, the gun was not fired in front of the children. It was fired outside of their
presence. The only person we know of in the vicinity of the gun being fired, direction of
the gun was up in the air, is the named victim in the Complaint which are none of these
persons.”4
The court noted defendant “said his children were playing in the street.” The
3 It appears defense counsel was referring to section 13700, subdivision (d), pursuant to which a court may issue a criminal protective order via section 136.2, subdivision (i)(1).
4 The complaint does not name any person or persons as the victim or victims.
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prosecutor added “[h]is daughter said she saw him with the gun.” Defense counsel
responded, “[a]t the house. When she was asked had she ever seen him with a gun at the
house, and she said yes.” The court replied “I’m issuing the [protective order]. You’re
welcome to appeal the order.” The court reasoned “[t]his is absolutely [] domestic
violence. [Defendant], I want to make sure you understand the order. I’m issuing the
order for ten years. It orders you to stay completely away from her, both of your
children, until further order of the Court.”5
Defendant noted he would be deported upon completion of his sentence. The
court issued the order on Judicial Council Form CR-161, titled “Criminal Protective
Order – Other Than Domestic Violence.” The court checked the box indicating the order
was issued pursuant to section 136.2. The second page of the protective order, citing to
People v. Stone (2004) 123 Cal.App.4th 153, notes under a section labeled “Warnings
and Notices”, that “[o]rders under [] section 136.2 are valid as long as the court has
jurisdiction over the case. They are not valid after imposition of a state prison
commitment.” The court immediately thereafter sentenced defendant to state prison as
contemplated in his plea agreement.
5 Part of the difficulty for the parties and the court below to argue and make factual determinations in the first instance, and for the parties and this court on appeal to review such findings, is that the factual basis for the plea did not contain any specifics regarding the context of the offenses. Rather, the factual basis for the plea consisted solely of an admission to the clinical statement of the offenses contained in the complaint. (See fn. 2.) Thus, the argument and findings regarding the protective order were based predominantly on the contradictory statements of the background of the offenses made by counsel.
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DISCUSSION
Defendant contends the court erred in issuing a criminal protective order pursuant
to section 136.2 because his ex-wife and children were not victims or witnesses to the
offenses for which he was convicted and were not victims of domestic violence in the
instant case. The People disagree with defendant’s argument that his children were not
victims of the instant crimes; however, the People concede none of the subjects of the
protective order were victims of domestic violence and issuance of the protective order
exceeded the court’s authority because the pendency of the criminal proceeding had
ended. We agree with the People and strike the criminal protective order.
Restraining orders “issued pursuant to section 136.2 [] authorize[] any court with
jurisdiction over a criminal matter which has a ‘good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to
occur,’ to issue a restraining order.” (People v. Stone, supra, 123 Cal.App.4th at pp. 158-
159, italics added.) In cases in which a defendant is neither charged nor convicted of
domestic violence, “a criminal protective order must be based on a finding of good cause
to believe an attempt to intimidate or dissuade a victim or witness has occurred or is
reasonably likely to occur. That finding may be based on the underlying charges and the
circumstances surrounding the commission of the charged offenses, but a mere finding of
past harm to the victim or a witness is not sufficient.” (Babalola v. Superior Court
(2011) 192 Cal.App.4th 948, 964, italics added.)
“Although section 136.2 does not indicate on its face that the restraining orders it
authorizes are limited to the pendency of the criminal action in which they are issued or
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to probation conditions, it is properly so construed. It authorizes injunctions only by
courts with jurisdiction over criminal proceedings and is aimed at protecting only
‘victim[s] or witness[es],’ an indication of its limited nature and focus on preserving the
integrity of the administration of criminal court proceedings and protecting those
participating in them.” (People v. Stone, supra, 123 Cal.App.4th at p. 159, italics added;
accord People v. Selga (2008) 162 Cal.App.4th 113, 118-119; People v. Ponce (2009)
173 Cal.App.4th 378, 383; Babalola v. Superior Court, supra, 192 Cal.App.4th at p.
965.)6
Although none of the aforementioned cases involved domestic violence, none of
them narrowed their holdings to those involving only nondomestic violence offenses.
(Babalola v. Superior Court, supra, 192 Cal.App.4th at p. 965.) Indeed, in Babalola the
court noted “section 136.2, subdivision (a)(1), expressly authorizes ex parte criminal
protective orders in domestic violence cases and we have no doubt such emergency
orders are proper in cases involving violent crimes in other contexts as well, provided
there is an adequate showing of the need for a temporary order and the court thereafter
schedules a hearing to consider whether the order should continue for the duration of the
criminal case. [Citations.]” (Ibid., italics added.) Thus, albeit in dictum, the court
6 Shortly after the opinion in Babalola was published, the Legislature responded to Ponce and People v. Selga (2008) 162 Cal.App.4th 113 by strengthening the protections available to victims of domestic violence offenses through the addition of subdivision (i) to section 136.2. That subdivision, alone under section 136.2, allows protective orders to continue beyond the expiration of the criminal proceedings only when a defendant has been convicted of domestic violence offense. (2011 Legis. Bill Hist. CA S.B. 723.)
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explicitly observed that even in domestic violence cases, any order issued pursuant to
section 136.2, subdivision (a)(1), would be limited to the duration of the criminal
proceedings. (Ibid.)
Here, the People concede the case did not involve an offense of domestic violence.
The court’s order specifically indicated it was issued in a case “other than domestic
violence.” Defendant was neither charged nor convicted of any crime of domestic
violence as enumerated in section 1300, subdivision (b). Even if the court had issued the
protective order pursuant to section 136.2, subdivision (a)(1), the duration of the criminal
protective order must be limited to the duration of the criminal proceedings. (Babalola,
supra, 192 Cal.App.4th at p. 965.) The court’s order would, therefore, be invalid after
defendant was committed to state prison. The court sentenced defendant to prison
immediately after issuing the protective order. Thus, the court acted beyond its authority
in issuing a protective order extending 10 years beyond the judgment in this case. The
protective order is therefore stricken.
DISPOSITION
The criminal protective order issued by the court below on September 25, 2012,
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is stricken. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a criminal protective order issued under Penal Code section 136.2 must be limited to the duration of the criminal proceedings, and therefore the trial court exceeded its authority by issuing a 10-year order after sentencing.
Issues
Whether the trial court erred in issuing a criminal protective order under Penal Code section 136.2 when the defendant was not convicted of a domestic violence offense.
Whether a criminal protective order issued under Penal Code section 136.2 may extend beyond the conclusion of the criminal proceedings.
Disposition. Affirmed with directions
Quotations verified verbatim against the opinion
“It authorizes injunctions only by courts with jurisdiction over criminal proceedings and is aimed at protecting only ‘victim[s] or witness[es],’ an indication of its limited nature”
“the duration of the criminal protective order must be limited to the duration of the criminal proceedings.”
“the court acted beyond its authority in issuing a protective order extending 10 years beyond the judgment in this case.”