prison prior. The plea included a stipulated five-year upper term, suspended; three-years
felony probation; and a dismissal of count 2 and all additional allegations in the
information. At the October 14 sentencing, over the objections of defendant and A.H.,
the court reissued a criminal protective order (CPO) using Judicial Council form CR-160
preventing defendant from initiating any contact whatsoever with A.H. for three years.
Defendant's sole contention on appeal is that the court erred in refusing to
terminate the CPO or otherwise modify it to allow some contact between him and A.H.
Respondent the People agree with defendant and request that this case be remanded to
allow the trial court to consider a more narrowly tailored protective order.
As we explain, we affirm the CPO with a minor modification. We conclude the
court properly exercised its broad discretion under section 1203.097, subdivision (a)(2)
when it issued the CPO preventing defendant from initiating any contact whatsoever with
1 All further statutory references are to the Penal Code, unless otherwise specified. 2
A.H., pending a showing by defendant that he was making at least some progress in
addressing his anger management issues and drug addiction, a showing he had yet to
make on this record. However, we further conclude the CPO should be modified to allow
A.H. to initiate contact, if any, with defendant that is acceptable and welcomed by her.
OVERVIEW
The CPO was initially issued by the court on August 8, 2016. It required
defendant to avoid any "personal, electronic, telephonic, or written contact" with A.H.,
including through a third-party (except an attorney of record), and to stay more than 100
yards away from her (sometimes collectively, stay-away provision). It was reissued three
days later, on the same terms.
At the September 23 hearing, the prosecutor noted for the record that he was
agreeing to the plea in part because A.H. had been "very uncooperative" at the August 19
preliminary hearing when, over the People's objection, she invoked her alleged Fifth
Amendment privilege against self-incrimination. At the conclusion of the hearing, the
court asked the probation department to make a recommendation at the upcoming
sentencing whether the CPO should remain in effect.
The October 6 probation report noted that in late September A.H. requested that
the CPO be lifted. The report further noted that A.H. advised probation that she intended
to appear at the October 14 sentencing and request the termination of the CPO; that she
and defendant had been working on their marriage and she believed it was in "God's
hands"; and that she had not wanted the CPO issued in the first instance. The probation
report recommended that defendant be ordered not to "annoy, harass, or threaten" A.H.
3
either "personally or through a third party," ostensibly what defendant refers to as a
"good conduct order," but stopped short of recommending there be no contact whatsoever
between defendant and A.H.
At the October 14 sentencing, A.H. asked the court to terminate the CPO. In so
doing, she stated that she had known defendant for 25 years; that they were high school
"sweetheart[s]" and had "reconnected" about three years ago; and that they had been
married for over a year. A.H. also informed the court that she had an associate's degree
and was one year away from obtaining her bachelor degree in business administration;
that she had the support of her church, her pastor, and her "woman's cell groups"; that
other than the two domestic violence incidents, there had been no other occurrences of
"abuse" between her and defendant, including during a "cool-down period" between the
May 23 incident and defendant's arrest in early August; and that she had a "safety plan"
in place if "things g[o]t out of control in the future," as her sister lived only two doors
down.
The court noted A.H. appeared to be "very stable" and a "very good person," but
expressed concern for her welfare absent the CPO because the instant offense was "very
serious," and defendant had yet to enroll in anger management classes and show he was
making progress. The defense argued rather than imposing the CPO that prevented any
contact between defendant and A.H., the court instead should impose a good conduct
order, as noted, which the defense represented was also what A.H. wanted. The defense
further argued that the stay-away provision in the CPO violated his and A.H.'s
constitutional rights to marital privacy and family associations. The court kept the CPO
4
temporarily in place, asked for further briefing from the parties and a supplemental report
from probation, and set the matter for hearing on November 4.
The probation department's November 1 supplemental report stated defendant
admitted "consuming methamphetamine" on October 30. Defendant also had yet to
enroll in a 52-week certified anger management program. As a result, the November 1
report recommended that the CPO remain intact and that a hearing be set in late
December to review defendant's progress.
Defendant's brief in support of his motion for termination or modification of the
CPO argued the prior domestic violence incident that took place in October 2014,
resulted in him pleading no contest to a mere misdemeanor violation of section 273.5,
subdivision (a); that when the CPO issued in the instant case, it was without any input
from A.H.; that A.H. believed the police officer report concerning the May 23 incident
contained exaggerations and untruthful information about what had taken place; and that
defendant and A.H. had lived together peacefully as husband and wife after the incident.
At the November 4 hearing, the defense informed the court that defendant had
enrolled in, but not yet started, an anger management program. The defense argued
section 1203.097, subdivision (a)(2), discussed in detail post, gave the court the
discretion to impose a good conduct CPO without any "residence exclusion or stay-away
conditions."
The court denied defendant's request to terminate or modify the CPO to allow him
some contact with A.H. In so doing, it found that the real problem in this case was
defendant's "long-standing" substance abuse, as both domestic violence incidents
5
centered around defendant and his drug use; that defendant continued to abuse drugs,
including as recently as October 30 when he admitted using methamphetamine; and that
defendant's ongoing drug use and anger management issues were a "very strong red flag"
that something else could potentially happen to A.H.
Near the conclusion of the hearing, the court encouraged defendant to appeal the
issue of whether A.H.'s desire to have contact with him "trump[ed] the statutory analysis"
required for domestic violence victims. The court set the matter for hearing in 90 days
and suggested defendant attend anger management classes and stay sober, all of which it
noted would "go a long way to convincing the court that it's an appropriate modification"
of the CPO.
The record shows the probation department, postappeal,2 filed a February 2, 2017
update informing the trial court that defendant had reenrolled in a 52-week anger
management course on January 4; that defendant had attended four of the five scheduled
sessions; that defendant had failed to attend the February 1 class "without a valid
excuse"; and that the program director had reported defendant did not take the program
seriously and had been a "constant disruption" in class. At the February 2 hearing, the
court refused to modify the CPO and set a review hearing for May 2017.
At the May 3 hearing, the defense informed the court of defendant's termination
from the anger management and "GEO Reentry Services" programs. The court
summarily revoked defendant's probation and issued a bench warrant for his arrest. The
2 A supplemental clerk's transcript was included in the appellate record. 6
May 8 petition to revoke probation stated that defendant also had tested positive for
methamphetamine on November 1 and December 1, 2016, and on February 2, 2017; and
that defendant thereafter had failed to contact or report to probation as required.
DISCUSSION
A. Governing Law
We note the challenged stay-away provision in the CPO, preventing defendant
from having any contact with A.H., is not technically a condition of his probation but
instead was issued under section 1203.097 governing domestic violence. Subdivision (a)
of this statute provides in relevant part: "If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family Code,[3] the terms of
probation shall include all of the following: . . . (2) A criminal court protective order
protecting the victim from further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or stay-away conditions."
(Italics added.)
As noted, defendant pleaded no contest to a violation of section 273.5, subdivision
(f)(1). This subsection applies when an individual has been convicted of violating "this
section for acts occurring within seven years of a previous conviction" under subdivision
(a) of section 273.5 among other statutes. Subdivision (a) in turn provides it is a felony
for any person to "willfully inflict[] corporal injury resulting in a traumatic condition
3 Section 6211, subdivision (a) of the Family Code defines "[d]omestic violence" to include "abuse perpetrated against . . . [a] spouse or former spouse." 7
upon a victim described in subdivision (b)"; "victim" is defined in subdivision (b) to
include a defendant's "spouse or former spouse" (§ 273.5, subd. (b)(1)).
Finally, subdivision (g) of section 273.5 is also implicated in this case. It
provides: "If probation is granted to any person convicted under subdivision (a), the
court shall impose probation consistent with the provisions of Section 1203.097." (Italics
added.)
" 'As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We
begin with the plain language of the statute, affording the words of the provision their
ordinary and usual meaning and viewing them in their statutory context, because the
language employed in the Legislature's enactment generally is the most reliable indicator
of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in
the statutory language. [Citation.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265
(Cornett); People v. Overstreet (1986) 42 Cal.3d 891, 895 [noting when "statutory
language is clear and unambiguous, there is no need for construction and courts should
not indulge in it"].)
Here, we conclude from the plain language of subdivision (a)(2) of section
1203.097 that a court has the discretion to impose a "residence exclusion" and/or a "stay-
away condition" when "appropriate." (Cornett, supra, 53 Cal.4th at p. 1265.) Factors a
court may consider in determining whether one or more of such conditions are
"appropriate" include "the seriousness of the facts before the court, the probability of
future violations, and the safety of the victim and his or her immediate family." (§ 273.5,
8
subd. (j); see People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [noting in giving words
their " 'usual and ordinary meaning,' " a reviewing court construes " 'them in light of the
statute as a whole and the statute's purpose' " (italics added)].)
We further conclude the same rules generally applicable to a challenge to a
condition of probation also apply to a challenge to a CPO issued under section 1203.097,
subdivision (a)(2) when a defendant is on probation for violation of section 273.5. (See §
273.5, subd. (g) [requiring consistency between a grant of probation for a violation of
subdivision (a) of section 273.5 and the provisions of section 1203.097].) Thus, we
conclude the terms of a CPO issued under section 1203.097, subdivision (a)(2) must be
both reasonable and narrowly tailored to accomplish the state interests in reforming and
rehabilitating the defendant offender, while at the same time protecting his or her victim
from domestic violence. (See People v. Jungers (2005) 127 Cal.App.4th 698, 704
(Jungers).)
B. The CPO Was Reasonable
A condition of probation will be upheld unless it (1) has no relationship to the
crime of which the defendant was convicted, (2) relates to conduct that is not criminal,
and (3) requires or forbids conduct that is not reasonably related to future criminality.
(People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin); see People v. Lent (1975) 15
Cal.3d 481, 486 (Lent).) Our high court has clarified that this "test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term."
(Olguin, at p. 379.) "Generally, we review the court's imposition of a probation condition
9
for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143 (Shaun
R.).)
Here, we conclude the requirement in the CPO that defendant avoid all contact
with A.H. was both reasonable and "appropriate" under 1203.097, subdivision (a)(2) as it
was directly related to defendant's conviction on count 1 and also to his future
criminality. (See Olguin, supra, 45 Cal.4th at pp. 379–380; see also People v. Carbajal
(1995) 10 Cal.4th 1114, 1121.)
Indeed, in pleading no contest on count 1, defendant admitted to "willfully
inflict[ing]" corporal punishment on A.H., causing her to suffer a "traumatic condition"
as defined by statute. (See § 273.5, subds. (a) & (b); see also subd. (d) [defining
"traumatic condition" to include an injury resulting from "strangulation or suffocation,
whether of a minor or serious nature, caused by a physical force"].) This crime also
violated subdivision (f)(1) of this statute, as it was defendant's second qualifying offense
against A.H. in about a two-year period. (See id., subd. (f)(1) [noting this subdivision
applies if it is a defendant's second conviction for domestic violence under subdivision
(a) within a seven-year period].)
But there's more. The record shows the trial court was concerned for A.H.'s safety
and welfare because defendant repeatedly violated the terms of his probation, including
by failing to participate meaningfully in at least two separate 52-week anger management
programs and by testing positive for methamphetamine month after month. The court
noted the strong connection between defendant's drug use and the incidence of domestic
violence against A.H.
10
On this record, we conclude the stay-away provision in the CPO requiring
defendant avoid all contact with A.H. for three years was "appropriate" under subdivision
(a)(2) of section 1203.097, as it was reasonably related to the goals of protecting A.H.
from further incidents of domestic violence while at the same time incentivizing
defendant to engage in services to prevent or reduce the likelihood of further incidents of
such violence. (See Lent, supra, 15 Cal.3d at p. 486; see also § 273.5, subd. (j).).
C. The CPO was Constitutionally Valid
Particularly germane to the instant case, "[j]udicial discretion to set conditions of
probation is further circumscribed by constitutional considerations." (People v. O'Neil
(2008) 165 Cal.App.4th 1351, 1356 (O'Neil).) A probation condition that imposes
limitations on a person's constitutional rights, including the right to "free association and
marital privacy" (see Jungers, supra, 127 Cal.App.4th at p. 704), both of which are
potentially implicated in the instant case, should "closely tailor those limitations to the
purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In
re Sheena K. (2007) 40 Cal.4th 875, 890.) "Certain intrusions by government which
would be invalid under traditional constitutional concepts may be reasonable at least to
the extent that such intrusions are required by legitimate governmental demands." (In re
White (1979) 97 Cal.App.3d 141, 149–150.)
"The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant's constitutional rights—bearing in mind, of course, that perfection in such
11
matters is impossible, and that practical necessity will justify some infringement." (In re
E.O. (2010) 188 Cal.App.4th 1149, 1153.) We independently review constitutional
challenges to a probation condition. (Shaun R., supra, 188 Cal.App.4th at p. 1143.)
This court's Jungers opinion informs our analysis on this issue. There, the
defendant pleaded no contest to committing corporal injury on the victim, the mother of
his child, in violation of section 273.5, subdivisions (a) and (b)(4). The defendant was
granted probation, one of the conditions being he could have only "mutual" contact with
the victim. (Jungers, supra, 127 Cal.App.4th at p. 701.) After violating probation by,
among other things, contacting or attempting to contact the victim, the court ordered that
defendant have no contact with her, stating that the victim could contact defendant, but
defendant could not contact her. The defendant later married the victim and like the
defendant in the instant case, filed a motion to modify what he referred to as a condition
of his probation restricting association between them. The motion included a declaration
from the victim wife stating that she "wanted to have contact with her husband" while he
was in a residential treatment program and that she "did not fear for her safety." (Id. at
p. 701.)
The trial court in response "clarified its ruling" by stating that the order did not
preclude any contact between the defendant and his wife but instead precluded him from
initiating that contact. (Jungers, supra, 127 Cal.App.4th at pp. 701–702.) Specifically,
the trial court ruled the victim "can contact [the defendant]. He cannot contact her. He
cannot initiate contact. She can write to him. He may not write her. She can call him.
He may not call her. She can visit him at [the residential treatment program]. He may
12
not go to her home." (Ibid.) Like the defendant in the instant case, the defendant in
Jungers argued on appeal that this restriction violated inter alia his right to association
and to "marital privacy." (Id. at pp. 700–706.)
In affirming this order, we concluded the defendant's "reasonable expectations of
free association and marital privacy" were necessarily restricted because of his felony
conviction for domestic violence. (Jungers, supra, 127 Cal.App.4th at p. 704.) We
further concluded this restriction was thus valid because it was reasonably necessary to
accomplish the needs of the state and it was narrowly tailored to accomplish this goal.
(Ibid.)
In addressing the state's needs and interest, we recognized in Jungers that
elimination of domestic violence was a "compelling state interest": "Consistent with the
Legislature's response to the problem of domestic violence, section 273.5 punishes a
defendant who inflicts corporal injury on a spouse. . . . 'The statute reflects legislative
recognition of the high incidence of violence in intimate relationships and the state's
interest in encouraging nonviolent intimate relationships.' " (Jungers, supra, 127
Cal.App.4th at pp. 703–704.) We further recognized that when a defendant convicted of
domestic violence is granted probation, as was the case here, the terms of probation
"shall" include a CPO issued pursuant to section 1203.097, subdivision (a)(2), even if the
victim did not fear for his or her safety and did not want such an order, as is also the case
here. (See Jungers, at pp. 704–705, fn. 3 [noting that "victims of domestic violence often
remain in abusive relationships" and that "domestic violence statutes are meant to protect
'victims from participation or complicity in their own predicament' "].)
13
We thus found in Jungers that, although the court's order curtailed the defendant's
rights of association and marital privacy, "it legitimately and reasonably operated to
accomplish the needs of the state in addressing domestic violence by rehabilitating [the
defendant] and protecting [the victim]." (Jungers, supra, 127 Cal.App.4th at p. 705.) As
such, we further found the state's compelling interest in protecting victims of domestic
violence justified the restriction on the defendant's right to initiate contact with the
victim. (Ibid.)
Finally, Jungers found the protective order was also narrowly drawn because it
"did not impose a complete ban on association or marital privacy, but only a narrowly
tailored condition consistent with [the defendant's] rehabilitation and the safety of the
victim." (Jungers, supra, 127 Cal.App.4th at p. 705.) Thus, unlike the CPO at issue in
the instant case, the protective order in Jungers allowed the victim to initiate contact with
defendant on terms acceptable to her even if the defendant could not initiate contact with
the victim. (Ibid.) As such, we concluded in Jungers that the protective order was a
"reasonable restriction on the manner in which [the defendant] may communicate with
[the victim]" (ibid), and that therefore the order did "not interfere with [the defendant's]
martial relationship to an impermissible degree" (ibid.).
It can hardly be doubted that elimination of domestic violence and the protection
of its victims such as A.H. are a compelling state interest. (See Jungers, supra, 127
Cal.App.4th at pp. 703–704.) We also note the trial court was required to issue a CPO,
although the court could exercise discretion on its terms, even if A.H. did not want
protection in the first place. (See § 273.5, subd. (g) & 1203.097, subd. (a)(2).)
14
Here, as already noted defendant made little, if any, progress in addressing his
anger management issues and drug abuse after the CPO and its stay-away provision went
into effect. Not only did he continually violate the terms and conditions of his probation
as a result, but his behavior—and the risks it potentially presented to A.H.—were even
more concerning given his lengthy criminal history, which consisted of 13 felony, and
seven misdemeanor, convictions (the instant offense being his 13th). Finally, the instant
offense against A.H. was "very serious" and involved violence, as also noted by the trial
court.
We thus independently conclude under the facts of this case that the state interest
in protecting A.H. from further incidents of domestic violence justified the intrusion on
defendant's rights of association and marital privacy by limiting his ability to initiate
contact with A.H. (See Jungers, supra, 127 Cal.App.4th at p. 704; see also § 273.5, subd.
(j) [noting that when convicted under subdivision (a) of this statute, a court "shall also
consider issuing an order restraining the defendant from any contact with the victim,
which may be valid for up to 10 years, as determined by the court]", italics added.)
The question becomes whether the CPO at issue here was narrowly drawn. We
note the CPO is silent on whether A.H. may initiate contact with defendant, in contrast to
the order at issue in Jungers that expressly allowed the victim wife to contact her
offender husband. Although there is no prohibition in the CPO preventing A.H. from
contacting defendant on terms that are acceptable and welcomed by her, we note her
doing so and defendant's response to such contact likely would result in a violation of the
CPO.
15
Following Jungers, we thus modify the CPO at issue to clarify that A.H. may
initiate contact with defendant but not vice-versa. Thus, if A.H. writes defendant,
defendant may write back. Defendant, however, may not initiate written contact with
A.H. If A.H. calls defendant and he does not answer the call, defendant may call her
back; but he cannot initiate telephone contact with A.H. Likewise, A.H. may visit
defendant at his home, but defendant cannot initiate contact and visit A.H. at her home.
Modified accordingly, the CPO will not preclude all future contact between
defendant and A.H., but rather limit the manner in which such contact may take place in
order to protect A.H. from further incidents of domestic violence and to incentivize
defendant to participate in programs designed to reduce or eliminate any such future
incidents. (See Jungers, supra, 127 Cal.App.4th at p. 705.)
16
DISPOSITION
We direct the trial court to modify the CPO it issued on October 14, 2016, to allow
A.H. to initiate contact with defendant on terms acceptable to and welcomed by her, as
discussed in this opinion. However, the portion of the CPO preventing defendant from
initiating contact with A.H. shall remain in effect until otherwise directed by the
trial court or until the CPO expires.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that a criminal protective order (CPO) prohibiting a domestic violence defendant from initiating contact with the victim was a reasonable and constitutional exercise of discretion, but it modified the order to allow the victim to initiate contact with the defendant.
Issues
Whether the trial court abused its discretion in issuing a CPO that prohibited all contact between a domestic violence defendant and the victim.
Whether the CPO violated the defendant's constitutional rights to marital privacy and free association.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We further conclude the CPO should be modified to allow A.H. to initiate contact, if any, with defendant that is acceptable and welcomed by her.”
“The state's compelling interest in protecting victims of domestic violence justified the restriction on the defendant's right to initiate contact with the victim.”