Opinion
D074284
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SANTOS CONDE, Defendant and Appellant.
Rachel M. Ferguson, under appointment of the Court of Appeal, on behalf of Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, on behalf of the Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF000862) APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed in part, reversed in part, and remanded with instructions. Rachel M. Ferguson, under appointment of the Court of Appeal, on behalf of Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, on behalf of the Plaintiff and Respondent.
Following Anthony Santos Conde's plea of no contest to willful corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), the court sentenced Conde to three years in prison and issued a 10-year stay-away protective order naming the cohabitant and four children who resided with the couple. Conde contends the trial court lacked authority to include any children on the postconviction protective order. The People contend the court had authority to issue the order to protect the 18-month-old child who was in the room at the time of the incident. We agree with the People and remand the matter for reconsideration of the issuance and terms of the protective order.
Further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Conde and Yvonne C. lived together, along with two children in common, as well as two of Yvonne's children from a previous relationship. On May 24, 2018, Conde was in a bedroom with his 18-month-old son, who was crying when Yvonne, his girlfriend and the child's mother, entered the room.
Facts are taken from the probation report.
Conde was bothered by Yvonne's presence, and he shoved her shoulders, causing her head to hit the wall. Yvonne went to the living room, where Conde yelled at her and threatened to strike her, holding his fist up in her face. Yvonne dared Conde to hit her, telling him she would call the police if he did. He grabbed her by the hair, pulled her to the ground, and dragged her to the kitchen. Then Conde took rope from outside, untangling it. Yvonne was afraid Conde would tie her up and beat her, but he eventually released her and apologized. After Yvonne picked up their daughter from school, she reported the incident at the police station.
The prosecutor reported to the court that the police report said Conde was holding the child and Conde shoved Yvonne because she wanted Conde to hand her the child. The police report is not in the record before us, but both the probation report and the prosecutor's offer of proof regarding the child's presence place the child in the room at the time Conde shoved Yvonne.
When police interviewed Conde, he admitted he had argued with Yvonne, but he denied being physical. Police arrested Conde, and he was charged with corporal injury of a cohabitant. (§ 273.5, subd. (a).) Conde was on probation at the time of his arrest.
On May 29, 2018, the court issued a criminal protective order under section 136.2, identifying Yvonne as the protected person.
Conde entered a plea of no contest and was sentenced to three years in prison. The People sought a ten year stay-away order under section 273.5, subdivision (j) and asked the court to include the children in the protective order. Yvonne indicated she did not want a protective order, and she filed a petition to modify the terms. She was not present at any of the hearings discussing the matter.
The court reviewed Yvonne's petition, acknowledging that Yvonne wanted to keep the family together, but expressing concern about whether she could protect the children given Conde's previous domestic violence charge and convictions for violent offenses, a misdemeanor battery, and assault, and numerous probation violations.
The court imposed a 10-year protective order, including a "Jungers type of protective order" for the duration of the prison term: While Conde is incarcerated, he is permitted contact with Yvonne and the children if Yvonne or the children initiate the contact. However, once released, the order reverts to a stay-away order, including the children. Post incarceration, the order is subject to modification.
People v. Jungers (2005) 127 Cal.App.4th 698, 704-705.
The court justified its decision by noting a child was in the room when Conde attacked Yvonne, creating a physical risk of harm and long-term psychological harm due to the child's observation of the incident.
DISCUSSION
Conde argues the inclusion of the four children in the protective order is not appropriate because it is not authorized by statute, as the children were not victims of the crime within the meaning of section 273.5, subdivision (j). The People concede that the inclusion of the children who were not present at the crime was erroneous but contend the protective order should extend to the child who was present during the attack. We agree that the court was authorized to include in the protective order the child who was present at the incident, and we remand the matter to the trial court for reconsideration.
Our determination relies on the statutory interpretation of sections 273.5 and 132.6. When we interpret a statute, we view the statute as a whole, considering the plain, commonsense meaning of the statute's language, and we seek to effectuate its legislative intent. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1421.)
A. Section 273.5
Conde argues that the plain meaning of the language in section 273.5 excludes immediate family members of victims of domestic violence from being included in a postconviction protective order issued under that section, leaving the court without authority under this statute to include children in the protective order. We agree.
Section 273.5, subdivision (j) provides that upon conviction for willful infliction of corporal injury upon a cohabitant, the sentencing court must consider issuing a postconviction restraining order for up to 10 years prohibiting any contact with the victim. (§ 273.5, subds. (a)-(d), (j).) A defendant who willfully inflicts corporal injury resulting in a traumatic condition upon a victim is guilty of a felony. (§ 273.5, subd. (a).)
Subdivision (b) offers a list of potential victims: the offender's spouse or former spouse, cohabitant or former cohabitant, fiancé or fiancée, someone with whom the offender has, or previously had, an engagement or dating relationship, or the mother or father of the offender's child. (§ 273.5, subd. (b)(1)-(4).) In addition to the limitation created by the enumerated list of possible victims, the statute limits the court's authority to issue the protective order under section 273.5 to those against whom the defendant used physical force. (§ 273.5, subd. (j); People v. Delarosarauda (2014) 227 Cal.App.4th 205, 213 (Delarosarauda).)
The People point to no evidence indicating Conde used physical force against any of the children or that any of the children suffered physical harm as a result of Conde's actions. Although the youngest child was in the room at the time Conde inflicted physical injury against Yvonne, there is no evidence that the child suffered any physical harm. The other three children were not present in the home at the time. Accordingly, the court was not authorized under section 273.5 to include the children in the postconviction stay-away order. (See Delarosarauda, supra, 227 Cal.App.4th at p. 213.)
B. Section 136.2
Section 136.2, subdivision (i) authorizes a court to issue a postconviction protective order for up to 10 years if a defendant is convicted of a domestic violence offense and the protected person qualifies as a victim. (See People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465-466 (Beckemeyer).)
Section 13700, subdivision (b), defines "[d]omestic violence" as "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." Family Code section 6211, subdivision (e) includes abuse perpetrated against "[a] child of a party" in the definition of " ' domestic violence.' " The parties do not dispute that Conde pled no contest to a crime of domestic violence.
At issue is whether any of the children fall within the statutory definition of "victim." Case law addressing section 136.2, subdivision (i)(1) has applied the term to include any person against whom there is reason to believe a crime has been committed or attempted to be perpetrated. (Delarosarauda, supra, 227 Cal.App.4th at p. 212.)
In Delarosarauda, for example, the court issued a postconviction protective order forbidding contact with the named victim of the crime, as well as the defendant's son and stepdaughter. (Delarosarauda, supra, 227 Cal.App.4th at p. 209.) The named victim reported that the defendant had " ' never touched' " the children; she thought they were in another room at the time of the incident. (Id. at p. 211.) The appellate court concluded that "absent evidence from which the trial court could reasonably conclude that appellant had harmed or attempted to harm [the children], the court lacked authority to issue the no-contact protective order as to the children under section 136.2, subdivision (i)(1)." (Id. at p. 212.) Although there was no evidence the defendant in Delarosarauda had harmed or attempted to harm the children (id. at p. 211), eliminating them as victims under section 136.2, the court noted that the subject of a protective order did not need to be a named victim of the offense for which the defendant was convicted. (Delarosarauda, at p. 212.) A court could issue a protective order with respect to someone against whom "some evidence" suggested the individual had been harmed or targeted by the defendant. (Ibid.; People v. Race (2017) 18 Cal.App.5th 211, 219 (Race).) Thus, a third person assaulted during a domestic violence incident meets the definition of a victim for purposes of a protective order issued under section 136.2, subdivision (i)(1). (Beckemeyer, supra, 238 Cal.App.4th at p. 463.)
Moreover, even when a child is not the primary target of domestic violence, he or she can be harmed. The Legislature has found and declared, "[c]hildren, even when they are not physically assaulted, very often suffer deep and lasting emotional effects" of domestic violence. (Welf. & Inst. Code, § 18290.) Penal Code section 136.2, subdivision (a)(2) recognizes that a minor who is not a victim but is present is deemed to have suffered harm. Thus, evidence of domestic violence in the presence of a child can be the basis of a court determining the minor has been harmed by the defendant's domestic violence actions. Additionally, in considering whether to issue a criminal protective order pursuant to section 136.2, subdivision (i)(1), a court may consider all competent evidence before it. (Race, supra, 18 Cal.App.5th at p. 220.)
Domestic violence is detrimental to children. (In re T.V. (2013) 217 Cal.App.4th 126, 134 [discussing spousal abuse].) Ongoing domestic violence in the presence of a child typically presents a substantial risk that the child will encounter violence and suffer harm. (In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454 [ongoing domestic violence fails to protect children]; see also In re Heather A. (1996) 52 Cal.App.4th 183, 195 & fn.11 [discussing negative effects of domestic violence on children in the home], abrogated on other grounds in In re R.T. (2017) 3 Cal.5th 622, 628.) Additionally, to protect minors, Welfare and Institutions statutes permit courts to assert jurisdiction over children pursuant to section 300, subdivision (b) when a child is at substantial risk of suffering serious physical harm due to parents' failure or inability to protect the child. (Welf. & Inst. Code, §§ 300, subd. (b), 355, subd. (a).)
Here, there is "some evidence" the defendant had committed or attempted to commit harm against the child who was present in the room (see Race, supra, 18 Cal.App.5th at p. 219) because the offer of proof and the probation report both placed the 18-month-old child in the room when Conde shoved Yvonne against the wall. Accordingly, the court was authorized under section 136.2 to name the 18-month-old child in the protective order. Should the court continue to include the 18-month-old in the postconviction protective order on remand, we direct the court to amend the order to refer to section 136.2.
C. Section 646.9
The People cite a third statute in their briefing, section 646.9, because the language in section 646.9, subdivision (k)(1) is substantially similar to language found in sections 273.5 subdivision (j) and 136.2, subdivision (i)(1). Section 646.9 addresses the crime of stalking and, like sections 136.2 and 273.5, it directs the court to consider issuing a restraining order prohibiting the defendant from contacting the victim for up to 10 years. (§ 646.9, subd. (k).) The second sentence of section 646.9, subdivision (k) states: "It is the intent of the Legislature that the length of any restraining order be based upon 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."
The People cite People v. Clayburg (2012) 211 Cal.App.4th 86 (Clayburg), which analyzes section 646.9, subdivision (k)(1). In Clayburg the trial court issued a postconviction order prohibiting the defendant from having contact with the victim's daughter. (Id. at p. 88.) Division Six of the Court of Appeal, Second Appellate District affirmed the trial court's action, finding the statutory reference to the victim's immediate family supported the court's inclusion of the victim's daughter in the order. (Id. at p. 91.) The Court of Appeal explained that the trial court's inclusion of the victim's daughter, who had been emotionally traumatized by the defendant's conduct, was authorized by the statute because of the language in the second sentence, which had to be read in conjunction with the first sentence. (Id. at pp. 91-92.)
In contrast, Division Four of the Court of Appeal, Second Appellate District concluded that nothing in the second sentence of the subdivision suggests it modifies the scope of the restraining order; it merely means the court should consider the safety of the victim's immediate family in determining the duration of the protective order. (Delarosarauda, supra, 227 Cal.App.4th at pp. 211-212.) Division Four also noted that Clayburg was factually distinguishable because there was reason to believe a crime had been perpetrated or attempted against the victim's daughter in Clayburg, giving the court authority under section 136.2 to include the child in the protective order. (Delarosarauda, at p. 212.)
We do not need to resolve this apparent split of legal authority to reach a conclusion here. The People only challenge Conde's request to lift the protective order as to the 18-month-old child who was present at the incident. For purposes of section 136.2, victim is broadly defined as "any person against whom there is reason to believe a crime has been committed" (Beckemeyer, supra, 238 Cal.1pp.4th at p. 466), and as we explained ante, that gives the court authority under that statute to include the 18-month-old child in the order.
While Conde is under the supervision of the California Department of Corrections and Rehabilitation, the protective order permits contact between him, Yvonne, and all four children as long as Conde does not initiate communications. Even before the trial issued this postconviction protective order, though, Yvonne filed a petition to modify a protective order, making it clear that she wanted contact with Conde because of their shared children and her desire that he have contact with the children. Given Yvonne's preference not to be included in a protective order, and the court's authority to include only one of the four children initially named in the protective order, the trial court may wish to modify or lift the order. Accordingly, we remand the matter to the trial court for reconsideration.
DISPOSITION
We remand the matter and direct the trial court to lift the protective order as to the three children who were not present at the time of the incident. We invite the court to reconsider the protective order in its entirety in light of its limited authority and Yvonne's desire to engage in contact with Conde, but we express no opinion as to whether the court should modify or lift it with respect to Yvonne and the 18-month-old child. Should the court continue to include the youngest child in the protective order, we direct it to amend the order to refer to section 136.2, subdivision from which its authority derives. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.