People v. Flores CA3

Filed 1/6/16 P. v. Flores CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ---- THE PEOPLE, C076882

Plaintiff and Respondent, (Super. Ct. No. CM039476)

v.

JOSE LUIS FLORES,

Defendant and Appellant.

We are here called upon to decide whether the trial court had the authority to enter a domestic violence protective order pursuant to Penal Code section 136.2 (as that statute read at the time of defendant’s sentencing) after defendant killed his mother’s dog by hanging it from a fence near her house and was thereafter convicted of cruelty to animals in violation of Penal Code section 597, subdivision (a). (Unless otherwise stated, statutory references that follow are to the Penal Code.) Because defendant was not convicted of a crime of domestic violence, we hold the court did not have the authority to enter an order pursuant to section 136.2. We will order the protective order stricken.

FACTS AND PROCEEDINGS

Defendant lived with his mother on-and-off for five years. The mother had a small dog. The morning of the incident, the mother and her daughter from out of town

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(defendant’s sister) left to run errands. They returned home to find the dog missing. A neighbor discovered the dog on a fence, hanged by its neck with a red shoelace. After discovering the dog, the neighbor saw defendant. She asked him if he killed the dog. Defendant responded by touching his hand to his chest twice and smiling. The neighbor took that as a yes. When police arrived, defendant was drinking beer in the backyard. He denied killing the dog but said he might have told his mother he wished she was “under ground.” He also complained that his mother was “always ‘fucking’ with him, and he was tired of it, . . . .” At trial, the jury convicted defendant of cruelty to an animal. (§ 597, subd. (a).) A charge of attempted criminal threats (§§ 422, subd. (a), 664) was dismissed on defendant’s motion. At sentencing, the trial court imposed a protective order, pursuant to section 136.2, ordering that defendant was not to contact, molest, threaten, or disturb the peace of his mother and that he was required to stay at least 400 yards away from her. On appeal, defendant challenges that order as unauthorized. The People concede the protective order was not within the court’s authority.