Filed 9/22/17 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Dennis Hernandez was charged by a domestic violence information with one count of stalking in violation of Penal Code section 646.9, subdivision (a) (count 1), (further code references are to the Penal Code) one count of making harassing telephone calls in violation of section 653m, subdivision (a) (count 2), five counts of making criminal threats in violation of section 422, subdivision (a) (counts 3‑7), and three counts of making false bomb threats in violation of section 148.1, subdivision (a) (counts 8‑10). He pleaded guilty to all counts and admitted he was released on bail at the time of the stalking in false bomb reports.

Hernandez was sentenced to a term of three years eight months in prison. At sentencing, the trial court issued a protective order, the scope of which is the subject of this appeal. The protected persons identified in the protective order are K.H., her two children, her mother, and six coworkers. Hernandez argues the protective order was unauthorized in scope under section 646.9, subdivision (k) (section 646.9(k)) because it prohibits him from having contact with persons who, he contends, were not stalking victims. We conclude the protective order was authorized by section 646.9(k) as to K.H.’s children and mother, and by section 136.2, subdivision (i)(1) (section 136.2(i)(1)) as to all those named as protected persons. We therefore affirm.

BACKGROUND

I. Facts From the Preliminary Hearing

Testimony at the preliminary hearing produced the following facts.

Hernandez and K.H. were married in April 2008. They had two children together, M.H. and S.H., before divorcing in October 2013. K.H. had sole physical custody of M.H. and S.H., and Hernandez had visitation rights. After the divorce, K.H. and the children moved in with her mother, E.R.

Starting in February 2014, Hernandez called K.H. incessantly and at all hours of the day and night. In all, he called her 253 times. At first, she answered the telephone and told Hernandez to stop calling her, but he would continue to call and leave messages. In the calls, Hernandez accused K.H. of being a bad mother. Toward the end of February 2014, he sent her a text message threatening her life and E.R.’s life.

K.H. worked at LGC Geotechnical (LGC) in San Clemente. Hernandez also called K.H. at her workplace and sent text messages there. K.H. changed her telephone number and only gave the new number to her co-workers and immediate family. Somehow Hernandez got the number and continued calling until he was arrested.

Hernandez sent K.H. over 300 text messages consisting of 343 pages when printed. He repeatedly accused K.H of being a bad mother, said he was going to report her to child protective services, and called her a slut and a prostitute. In one message, he told K.H. she was going to die. The message read: “I have to clear up with the private investigator but that’s cool because you are F*** whatever dead. It’s on your shoulders, girl.” Hernandez also sent a text message that said, “[y]our boyfriend’s knees c[a]ps need to be broken,” and “I also, know where you sleep. Who knows, something might happen to you and your mom.” In another text message, Hernandez said, “[j]ust think about my name when you might be tied up one day and you need more than not” and “[y]ou’re fucking done, you are fucking done . . . I just don’t care anymore K[.H.], I just don’t care about myself, about nobody.” In another text message, Hernandez said: “I e-mailed your job naked pictures of you. I hired somebody to beat the fuck out of your boyfriends. I hired somebody to fuck you over physically. I know where you sleep, I know where your boyfriend sleeps and I already paid people to fucking do it.”

K.H. later found out that Hernandez had e‑mailed naked photographs of her to her boss. Hernandez sent another text message that said, “f I were you I would sleep with one eye open. It’s amazing what people do for money, including you. You pushed me too far. I should have just broke your nose like your other boyfriend.”

The Attorney General argues Hernandez forfeited his challenge to the scope of the Final Protective Order by failing to object to it. “As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. [Citation.] But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction.” ([i]People v. Ponce (2009) 173 Cal.App.4th 378, 381.) In Ponce, the defendant did not object in the trial court to a three‑year protective order issued under section 136.2. The Court of Appeal concluded the defendant did not forfeit his claim that the protective order was of an unauthorized duration because he challenged the order’s jurisdictional validity. (People v. Ponce, supra, 173 Cal.App.4th at pp. 381‑382.)

Hernandez contends the Final Protective Order is unauthorized or beyond the trial court’s jurisdiction because it extends to persons who, he claims, were not stalking victims within the meaning of section 646.9(k). Hernandez therefore did not forfeit his challenge to the Final Protective Order.

II. The Final Protective Order Is Authorized by
Section 646.9(k)

Hernandez was charged and convicted under count 1 of stalking in violation of section 646.9, subdivision (a). The trial court issued the Protective Order pursuant to section 646.9(k)(1), which provides: “The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. 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.”

Hernandez argues the Final Protective Order is unauthorized in scope because section 646.9(k) allows a protective order to restrain contact only with the victim, while the Final Protective Order extends protection to persons in addition to K.H., the only named stalking victim. We reject placing such a narrow scope on the protection afforded by section 626.9(k). In interpreting section 646.9, we follow this advice given in People v. Clayburg (2012) 211 Cal.App.4th 86, 89 (Clayburg) to “use some common sense” and to “ask ourselves: what is the Legislature trying to accomplish?” The Legislature defined the crime of stalking in these terms: “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.” (§ 646.9, subd. (a), italics added.) This definition evinces an intent to protect the immediate families of persons who are stalked or harassed. The second sentence of section 646.9(k)(1) also evinces such intent by directing trial courts to consider “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” in setting the length of a protective order.

The trial could find, and correctly found, that naming M.H., S.H., and E.R. as protected persons was necessary to protect them from Hernandez. Hernandez admitted he made threats to inflict injury on K.H. and her family. It therefore would make no sense to exclude K.H.’s children and mother from the scope of the Final Protective Order and expose them to future harm. Hernandez’s narrow definition of victim would, we believe, defeat rather than promote the Legislature’s purpose of protecting stalking victims and their families. “[W]e have no doubt that the Legislature intends to protect the immediate family of a stalking victim.” (Clayburg, supra, 211 Cal.App.4th at p. 92.)

In reaching this conclusion, we are guided by Clayburg, supra, 211 Cal.App.4th 86. In that case, the defendant was convicted of stalking her ex‑husband, who was the father of their daughter. The trial court issued a protective order under section 696.9(k)(1) to protect the ex‑husband and daughter. (Id. at p. 88.) The majority opinion in Clayburg rejected the argument that the trial court was authorized only to issue an order protecting the “victim” (i.e., the ex‑husband). The majority opinion construed the two sentences of section 646.9(k)91) together and rejected the defendant’s literal reading of the first sentence as only protecting the named stalking victim: “Were we to put horse blinders on and read the first sentence in isolation, [the defendant] would prevail.” However, to do so would “‘yield[] “a grotesque caricature of the Legislature’s purpose.”‘“ (Clayburg, supra, at p. 91.) The majority opinion applied rules of statutory construction and construed the two sentences of section 646.9(k)(1) together to conclude: “t is apparent that the Legislature wants the judiciary to protect the child of a named stalking victim. The statute is ‘remedial’ and consistent with time‑honored precedent, must be liberally construed to effectuate the object and purpose of the statute and to suppress the mischief at which it is directed. [Citation.] To strictly construe the statute and read the first sentence to the exclusion of the second would defeat Legislature intent and defeat justice. Such a construction would not suppress the mischief at which it is directed. For the same reasons, we cannot construe the second sentence so as to relate only to the length of the restraining order. The second sentence must be read, not in isolation, but in conjunction with the first sentence.” ([i]Clayburg, supra, at p. 91.)

The Clayburg majority opinion also concluded its interpretation was supported by article I, section 28 of the California Constitution, the victims’ bill of rights. Subdivision (e) of section 28 states, in relevant part: “As used in this section, a ‘victim’ is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representation of a crime victim who is deceased, a minor, or physically or psychologically incapacitated.” (Cal. Const., art. I, § 28, subd. (e), italics added.)

Hernandez contends Clayburg is distinguishable because the Court of Appeal concluded the daughter had suffered emotionally and was traumatized from the defendant’s conduct. (Clayburg, supra, 211 Cal.App.4th at p. 91.) The daughter had testified in the trial court the defendant’s conduct made her feel scared and nervous. (Id. at p. 90.) Such direct evidence of harm is not necessary to afford protection to families under section 646.9(k), particular when, as in this case, the matter is resolved by plea without an opportunity for taking testimony. Here, it is sufficient that Hernandez admitted he made threats to harm K.H. and her family.

Hernandez argues that Clayburg was wrongly decided and urges us to follow People v. Delarosarauda (2014) 227 Cal.App.4th 205 (Delarosarauda), in which the Court of Appeal disagreed with the Clayburg majority opinion’s interpretation of section 646.9(k). In Delarosarauda, the defendant was convicted of assaulting his spouse. At sentencing, the trial court issued a criminal protective order under section 136.2(i)(1)^[1] prohibiting the defendant to contact his spouse, son, or stepdaughter for 10 years. (Delarosarauda, supra, at p. 209.) The Court of Appeal concluded that section 136.2(i)(1) did not authorize the protective order as to defendant’s son and stepdaughter because they were not “‘victims,’” that is, “there was no reason to believe that any crime was being or had been perpetrated or attempted to be perpetrated against [them].” (Delarosarauda, supra, at p. 211.) The Court of Appeal expressed disagreement with the Clayburg majority opinion’s interpretation of section 646.9(k) and, in particular, the majority opinion’s conclusion that the second sentence in section 646.9(k) modified the first sentence, thereby expanding the meaning of “‘victim’” in the first sentence to include “‘a member of the immediate family of a stalking victim . . . who suffers emotional harm.’” (Delarosarauda, supra, at p. 212.) The court concluded the language in section 136.2(i)(1) providing that “the duration of any restraining order issued by the court be based upon . . . the safety of the victim and his or her immediate family” does not modify the term “‘victim’” in the first sentence and “[t]hus, any restraining order issued under this provision must be limited to prohibiting contact with the victim.” (Delarosarauda, supra, at p. 212.)

We disagree with Delarosarauda’s interpretation of section 646.9(k) because it is contrary to the Legislature’s intent to protect family members against whom stalkers have made credible threats. Delarosarauda also did not consider the Clayburg majority opinion’s citation to the victims’ bill of rights, which defines victim to include a person who suffers direct or threatened harm. (Cal. Const., art. I, § 28, subd. (e).)

M.H., S.H., and E.R., are members of K.H.’s immediate family, and Hernandez admitted he made a threat to inflict injury on them. The trial court therefore did not err by making them protected persons under the Final Protective Order.

III. The Final Protective Order Is Authorized by
Section 136.2.

Section 136.2 authorizes the inclusion of K.H.’s coworkers (Colson, Boratynec, Amado, Dyekman, Haven, and Cox) as well as M.H., S.H., and E.R., as protected persons in the Final Protective Order. Section 136.2(i)(1), quoted in full above in footnote 1, authorizes a postconviction protective order “(1) when the crime qualifies as a ‘domestic violence’ crime, and (2) the protected person qualifies as a ‘victim.’” (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466 (Beckemeyer).) For purposes of a section 136.2 protective order, “‘victim’” is broadly defined in section 136, subdivision (3) as “any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated.” (Italics added.)

Hernandez admitted he made a threat to injure M.H., S.H., and E.R. They are therefore victims under section 136. K.H.’s coworkers at LGC also are victims within the meaning of section 136. Hernandez pleaded guilty to three counts of making false bomb threats and admitted that on March 14, 17, and 22 he made bomb threats to LGC. The LGC building was occupied at the times the bombs were supposed to explode and had to be evacuated. There was testimony at the preliminary hearing that Hernandez had left a voicemail message at LGC in which he said “[t]his bomb that I set up for you guys is really going to be horrible and you guys are probably going to lo[]se business over it and I hope so.” Colson forwarded this message to a sheriff’s deputy.

Beckemeyer, supra, 238 Cal.App.4th 461, supports our conclusion that K.H.’s coworkers were victims within the meaning of section 136. In Beckemeyer, the defendant was convicted of the attempted murder of his girlfriend and assault with a deadly weapon on her son. (Id. at pp. 463‑464.) The trial court issued a postconviction protective order under section 136.2(i)(1) restraining the defendant from having contact with the girlfriend and her son for 10 years. (Beckemeyer, supra, at p. 464.) On appeal, the defendant contended the protective order was invalid as to the son because he was not a victim of domestic violence. (Id. at p. 466.) The Court of Appeal upheld the protective order because (1) the crime committed against the girlfriend satisfied the requirement of a domestic violence crime, and (2) the son qualified as a victim because section 136 defines victim broadly to include any person against whom there is reason to believe a crime has been committed. (Beckemeyer, supra, at p. 466.) “Because defendant was convicted of committing a crime against [the son] during the domestic violence incident, [the son] readily falls within the definition of victim.” (Ibid.)

In this case, Hernandez left threatening voicemail messages and bomb threats against LGC in connection with his acts of domestic violence against K.H. Her coworkers at LGC “readily fall[] within the definition of victim.” (Beckemeyer, supra, 238 Cal.App.4th at p. 466.) Hernandez threatened to inflict injury on M.H., S.H., and E.R. They too are victims within the meaning of section 136.2.

Hernandez argues the Final Protective Order was not issued under section 136.2, as was the Initial Protective Order. On the Final Protective Order, the box next to “Order under Penal Code, § 136.2” was not checked. We do not believe, however, the validity of a protective order should be a matter of checking a particular box on a form. The substance of the order controls over its form. (Snapp v. State Farm Fire & Cas. Co. (1964) 60 Cal.2d 816, 821; Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 28 [“this court will not be bound by the form of the order but will look to its substance to determine its real nature”]; Brown v. Wells Fargo Bank, N.A. (2012) 204 Cal.App.4th 1353, 1356 [“[o]n appeal, the substance and effect of the order controls, not its label”].) The Final Protective Order was authorized as to all named protected persons under section 646.9(k) and section 136.2. We affirm the order regardless of which boxes were checked.

DISPOSITION

The judgment, including the Final Protective Order, is affirmed.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.