Filed 5/8/18 P. v. Hopkins CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT STEPHEN HOPKINS,

Defendant and Appellant.
C084796

(Super. Ct. No. CRF1700467)



Defendant Robert Stephen Hopkins pled no contest to a domestic violence charge. On appeal, he contends the trial court erred in issuing criminal protective orders in favor of his wife, M. H., and their son, J. H., who was seven years old at the time of the incident. He further argues the trial court erred in imposing a $500 domestic violence fee, and the People agree with this argument. We strike the $500 domestic violence fee and otherwise affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2017, defendant pled no contest in case No. CRF17467 to inflicting corporal injury on his spouse. (Pen. Code, § 273.5, subd. (a).) The parties agreed to a sentencing lid of three years in state prison and the possibility of probation. Defendant also admitted he violated probation in case No. CRF15352.
Defendant agreed in his plea form that the court could consider the police report as proof of the factual basis for his plea. The parties also stipulated during the plea hearing that the factual basis for defendant’s plea “comes from [the police report].” The probation report summarized the police report as follows: “On March 19, 2017, at approximately 12:30 p.m., [defendant] pinned [J. H.] to a chair and was yelling at him when [M. H.] interjected and told him to leave [J. H.] alone. She attempted to pull [defendant] off of [J. H], and [defendant] slapped her in the face with his open right hand. All of her attempts to stop him were unsuccessful, so she walked outside and went to the garage to smoke a cigarette. [¶] During the course of pinning [J. H.], [defendant] pulled back his right arm and struck [J. H.]. in the chest. [A relative] pulled [defendant] off of [J. H.] and forced him out of the house.” Defendant burst into the garage a few minutes later and “screamed at [M. H.] to leave.” When she failed to move, defendant grabbed her neck, slapped her in the face, dragged her by the arm off the couch where she had been sitting, and threw her to the ground. As a result, M. H. suffered an abrasion under her eye and scratches on her leg. Defendant also threw a lit cigarette at M. H., burning her wrist.
In May 2017, the trial court denied probation and sentenced defendant to state prison for three years, plus eight months consecutive for the violation of probation. The trial court also imposed fees and fines including a “$500 domestic violence fee . . . pursuant to [section] 1203.097.”
In addition, the court issued criminal protective orders prohibiting defendant from contacting or coming within 100 yards of M. H. and J. H. for a period of 10 years. (§ 273.5, subd. (j).) The court noted defendant was “now abusing his child [J. H.],” who was also “a victim.” In addition, “[o]ther people in the residence have to pull [defendant] off of [J. H.] and force [defendant] out of the house. . . . [¶] . . . [¶] [Defendant] was always verbally abusive towards the children, calling them terrible names, telling them they were dumb.” M. H. reported the children were also “doing better with Defendant out of the house,” and she was requesting no contact with defendant. Defendant also had a history of domestic violence, including a misdemeanor domestic violence conviction in 2004. He had also violated probation in 2004 and 2005 by failing to complete a batterers’ treatment program and by failing to have no contact with the victim.
Defendant filed a timely appeal. He did not seek a certificate of probable cause.
DISCUSSION
I
The No Contact Orders
Defendant contends the trial court erred in issuing a no contact order in favor of J. H. and stay away orders in favor of J. H. and M. H. Relying on People v. Delarosarauda (2014) 227 Cal.App.4th 205, defendant argues there was no evidence J. H. was a victim under the meaning of sections 273.5, subdivision (j) (section 273.5(j)) or 136.2, subdivision (i)(1) (section 136.2(i)(l)). Defendant further argues neither section 273.5(j) nor section 136.2(i)(1) authorizes stay away orders.
When interpreting a statute, we view the statutory enactment as a whole; consider the plain, common sense meaning of the language used in the statute; and seek to effectuate the legislative intent evinced by the statute. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1421.)
A
Protective Order In Favor Of J. H.
Under section 273.5(j), when a defendant is convicted of violating section 273.5, subdivision (a): “the sentencing 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. 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.” Section 273.5, subdivision (a) applies only if the victim is a spouse, cohabitant, fiancée, or parent of the offender’s child. (§ 273.5, subd. (b).) As such, section 273.5(j) does not authorize a trial court to issue a protective order in favor of a child of a victim, such as J. H.. (People v. Delarosarauda, supra, 227 Cal.App.4th at p. 213).
However, a criminal protective order could have been lawfully issued as to J. H. under section 136.2(i)(1), which provides: “In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 . . . the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. . . . It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and his or her immediate family.” Accordingly, the trial court was statutorily required to consider imposition of a protective order under section 136.2(i)(1) as part of the sentence in light of defendant’s conviction for section 273.5.
“[F]or purposes of a section 136.2 protective order, ‘victim’ is broadly defined in section 136 as any person against whom there is reason to believe a crime has been committed” or attempted to be committed. (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466; see also People v. Delarosarauda, supra, 227 Cal.App.4th at p. 211 [accord]; People v. Race (2017) 18 Cal.App.5th 211, 219 [“the term ‘victim’ pursuant to section 136.2 criminal protective orders must be construed broadly to include any individual against whom there is ‘some evidence’ from which the court could find the defendant had committed or attempted to commit some harm within the household”].) “[I]n determining whether to issue a criminal protective order pursuant to section 136.2, a court may consider all competent evidence before it.” (Race, at p. 220.)
Here the trial court had sufficient competent evidence to determine whether defendant had committed or attempted to commit a crime against J. H. According to the probation report’s summary of the police report, defendant yelled at J. H., pinned him to a chair, and struck him in the chest. J. H. witnessed as defendant slapped M. H. after she unsuccessfully tried to pull him off J. H.. Defendant only let go of J. H. when another resident forced him to stop. In addition, M. H. reported the children were “doing better with Defendant out of the house,” and had requested no contact with defendant.
As such, the trial court had authority to issue a protective order in favor of J. H. under section 136.2(i)(1). It is of no consequence that the trial court erroneously relied on section 273.5(j), since “ ‘ “[n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976.)
We shall direct the trial court to correct the protective order by checking the section 136.3(i)(1) box and removing the check from the section 273.5(j) box in order to specify the statute under which the protective order was properly issued.
B
Authority To Issue A “Stay Away” Order
Despite the plain language in section 273.5(j) and section 136.2(i)(1) stating the court shall consider issuing an order restraining the defendant from any contact with the victim, defendant contends those sections do not authorize “stay away” orders. In support of his argument, defendant relies on People v. Selga (2008) 162 Cal.App.4th 113. Defendant misconstrues this court’s opinion in Selga.
In Selga, while the criminal proceedings were pending, the trial court had issued criminal protective orders pursuant to former section 136.2 in favor of the defendant’s ex-girlfriend and her boyfriend, both victims of the defendant’s crimes. During sentencing, the court modified the protective order in favor of the boyfriend, changing it to a postconviction probation condition pursuant to section 1203.097, subdivision (a)(2). (People v. Selga, supra, 162 Cal.App.4th at pp. 115-117, 119.) Selga found the trial court had erred, since, at that time, former section 136.2 applied only during the pendency of criminal proceedings. (Selga, at p. 118; see also People v. Ponce (2009) 173 Cal.App.4th 378, 382 [same].) In addition, the boyfriend “did not qualify as a person who could be protected under section 1203.097, subdivision (a)(2)” in a postconviction protective order. (Selga, at p. 119.) In other words, Selga addressed whether a
 
postconviction protective order can be issued for a person whose relationship to the defendant does not fall within those described in section 1203.097, subdivision (a)(2), not whether former section 136.2 authorized a court to impose a stay away provision in a protective order. The court remanded the case to allow reissuance of the order under the correct section (§ 1203.1, subd. (j)), if the trial court so desired. (Selga, at p. 121.)
The plain language of sections 136.2(i)(1) and 273.5(j), i.e., permitting a trial court to restrain a defendant from any contact with the victim is broad and encompasses “stay away” orders. (See Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 958 [“In 1996 Assembly Bill No. 2224 (1995-1996 Reg. Sess.) was passed to broaden the court’s authority to issue ex parte no-contact and stay-away orders under the Domestic Violence Prevention Act. (Stats. 1996, ch. 904, § 1, p. 4989.)” (italics added)]; see also People v. Petty (2013) 213 Cal.App.4th 1410 [upholding a stay-away protective order issued under § 1203.1, subd. (j)].) There was no error.
II
Domestic Violence Fee
As both parties correctly note, the trial court erroneously ordered defendant to pay a $500 domestic violence fee. A fine pursuant to section 1203.097, subdivision (a)(5) is to be imposed only when a defendant is “granted probation.” (§ 1203.097, subd. (a)(5); see also People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520.) Because defendant was sentenced to prison, the fee was unauthorized.
DISPOSITION
The $500 domestic violence fee is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and  
corrected protective order and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation and a copy of the corrected protective order to the appropriate entities.



/s/
Robie, Acting P. J.



We concur:



/s/
Murray, J.



/s/
Duarte, J.