P. v. Chavarria CA2/6

Filed 6/24/13 P. v. Chavarria CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242169 (Super. Ct. No. LA070978) Plaintiff and Respondent, (Los Angeles County)

v.

JOSE CHAVARRIA,

Defendant and Appellant.

Jose Chavarria appeals from a victim no-contact order issued after he pled no contest to first degree residential burglary and was sentenced to state prison. The trial 1 court ordered appellant to stay away from the victim. We affirm and hold that the trial court had the inherent authority to issue a non-statutory protective order. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1094-1095.) On May 14, 2012 appellant burglarized Claudia's apartment, stealing her X- box game and checkbook. Appellant was on parole and lived in the main house with his mother. Claudia lived in the garage which had been converted to an apartment. She paid rent to appellant's father.

1 Appellant was ordered "not to annoy, harass, strike, threaten, assault sexually or otherwise, follow, stalk, molest, destroy or damage real or personal property, disturb the peace, keep under surveillance or block movements of the protected person Claudia [C]."

Pursuant to a negotiated plea, appellant was sentenced to four years state prison. Over defense objection, the trial court ordered appellant not to contact Claudia. Discussion Appellant argues that the trial court had no jurisdiction to issue the no- contact order. Section 136.2 provides that a trial court may issue a protective order during the pendency of a criminal trial, but not after conviction. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) Other statutes provide for protective orders in domestic violence cases (§ 1203.097), in stalking cases (§ 646.9, subd. (k)), and in enumerated sex offenses where the victim is a minor (§ 1202.05). None of those statutes apply nor did the trial court rely on them. In Townsel v. Superior Court (1999) 20 Cal.4th 1084 our Supreme Court concluded that trial courts have the inherent power to issue nonstatutory protective orders to protect trial participants. There, the defendant was convicted of murdering a witness to a crime and attempting to prevent or dissuade a witness. He was sentenced to death. Seven years after the conviction, defendant filed a habeas petition to investigate possible juror misconduct. The trial court ordered appellate counsel not to contact the jurors without first obtaining the approval of the trial court. Based on defendant's history of interfering with the judicial process by killing or threatening witnesses, the Townsel court concluded that the trial court had the inherent authority to issue a protective order to safeguard juror safety and privacy. (Id., at pp. 1094-1095.) People v. Ponce Appellant's reliance on People v. Ponce, supra, 173 Cal.App.4th 378 (Ponce) is misplaced. There, a protective order was issued after defendant pled no contest to second degree robbery with a street gang enhancement and was sentenced to state prison. We struck the order on the ground there was no evidence that Ponce threatened witnesses or the victim during the proceedings. (Id., at p. 384.) "[E]ven where a court has inherent authority over an area where the Legislature has not acted, this does not authorize its issuing orders against defendants by fiat or without any valid showing to justify the need for the order. [Citation.]" (Id., at p. 384.)