P. v. Robertson

Filed 10/22/07 P. v. Robertson CA3

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In a fit of anger, defendant James Robertson ripped two hanks of hair from the head of his fiances six-year-old son when he picked the child up by his hair. Thereafter, defendant pleaded guilty to one count of willfully and unlawfully inflicting cruel and inhuman corporal punishment and injury, resulting in a traumatic condition, upon a child in violation of Penal Code section 273d. (Unspecified section references that follow are to the Penal Code.) The court sentenced defendant to state prison.

The sole issue on appeal concerns a protective order made by the court following sentencing. The court ordered defendant not to have any contact with or be in [the] presence of [the victim or his mother]. And there is prohibitions [sic] on visitation. I dont have the specific code sections, but those will be ordered as well.

On appeal, defendant contends the court had no jurisdictional power to make the no contact order; the People concede the error.

We agree. Several Penal Code sections mandate or allow no contact orders at the time of sentencing in certain circumstances. Most relevant here is section 273d, subdivisions (c)(2) and (5), which allow the court to issue a protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions, but only if the defendant is granted probation. ( 273d, subd. (c).) Others include section 1202.05, subdivision (a), which requires the court to prohibit all visitation between a defendant convicted of committing various sex offenses and the minor victim; section 646.9, subdivison (k), which allows a trial court to issue a no contact order valid for up to 10 years in stalking cases; section 1203.1, subdivision (i)(2), which permits a trial court to impose a no contact order as a condition of probation; and section 3053.2, subdivision (a), which states that, at the request of the victim, the parole authority must impose a form of no contact order as a condition of parole. None of these statutory provisions mandating or authorizing no contact orders apply in this case.

The only Penal Code section that could reasonably justify the no contact order is section 136.2, which allows a court broad authority to issue no contact orders in criminal cases upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur . . . . ( 136.2, subd. (a)(4).) However, the issuing court must have jurisdiction over the pending matter. ( 136.2, subd. (a).)

Based on the statutory jurisdiction requirement, People v. Stone (2004) 123 Cal.App.4th 153 held that section 136.2s application is limited to the pendency of a criminal proceeding because section 136.2 is aimed at protecting only victim[s] or witness[es]. (Id. at p. 159.) Section 136.2s purpose of protecting victims and witnesses is an indication of [section 136.2s] limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them. (Ibid.)

Since the court sentenced defendant to state prison rather than granting probation, the trial court did not have the authority to impose the protective order beyond the pendency of the proceedings in this case. Therefore, we are compelled to reverse the no contact order in the judgment.

DISPOSITION

The no contact order is stricken and the judgment is otherwise affirmed.

HULL, J.

We concur:

NICHOLSON , Acting P.J.

CANTIL-SAKAUYE , J.

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