Opinion
E050844
09-08-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL STEVEN STENCIL, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Garrett Beaumont and Scott C. Taylor, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1000120)
OPINION
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed as modified.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Garrett Beaumont and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Steven Stencil appeals from a jury trial. He challenges the validity of a protective order entered by the trial court at the time of sentencing.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged in count 1 with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and in count 2 with battery against a cohabitant or girlfriend (§ 243, subd. (e)(1)). A jury found defendant guilty of both counts. The trial court sentenced defendant to three years in prison on count 1. On count 2, the court imposed 172 days in jail but stayed it pursuant to section 654. At the end of the sentencing hearing, the court signed a protective order prohibiting defendant from contacting the victim for a period of 10 years.
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, the victim testified she and defendant had a dating relationship beginning in February 2009 and began living together in March 2009. They lived together for about four months. There were other people living in the home, and the owner told defendant he had to move out after he physically abused the victim. The victim continued to live in the home. Defendant and the victim had periods of separation but continued to see one another after he moved out of the house. During their relationship, defendant regularly inflicted physical abuse on the victim.
On the evening of November 8, 2009, defendant and the victim decided to walk to a nearby grocery store. Inside the store, they got into an argument; she left the store and sat down outside. Defendant got some groceries and eventually found her where she was sitting. They then walked to a convenience store across the street.
A police officer testified he was dispatched to the area about this time because of a "disturbance" between a male and a female. Upon arrival, the officer found defendant and the victim standing in a parking lot face to face, and defendant had his hands intertwined around the back of the victim's neck. The officer testified "it looked like he was holding her so she couldn't get away." The victim appeared to be attempting to back up but defendant was holding her close. The officer exited his vehicle and approached on foot; defendant seemed agitated or angry. The victim looked to be afraid, and was looking away and down as if she did not want her face to be seen. When the officer got a closer look, he noticed the victim had redness and swelling to one of her eyes. The officer detained them, and another officer arrived soon thereafter to take over the investigation.
The victim testified the bruising near her eye had been inflicted earlier on the same day, by defendant, while they were at defendant's father's house. The father had moved out, and she and defendant were "hanging out on his property." She said defendant punched her when she refused to "smoke some weed" with him. The jury was shown a picture of the injury. Defendant also grabbed the victim around the neck and pressed his thumbs into her throat so she could not breathe. She blacked out briefly and woke up on the ground. The victim told the investigating officer she had been choked by defendant in this manner more than once. Defendant had previously pulled her hair and pushed her. She had some bruising from the encounters, as well as a bite mark on her back. The investigating officer conducted a videotaped interview with the victim at the police station, and the tape was played for the jury.
The jury also heard testimony from L.C., defendant's former girlfriend from 2005. On November 2, 2005, L.C. testified she was driving in a vehicle with defendant, and defendant became angry with her for being a "'smart ass.'" He grabbed her hair and hit her in the back of the head. She pulled over, but he would not get out of the car. Defendant wrapped his fingers around the back of her neck and pressed his thumbs into the front of her throat until she nearly passed out.
There was a scuffle between them after he choked her, and L.C. hit him as hard as she could in the face. She then jumped out of the car. Defendant also got out of the car and started throwing large rocks at her; he hit her twice with the rocks. Someone passing by called 911. Defendant ran away with L.C.'s car keys, but came back while she was waiting for the police. He threatened to kill her and then punched her in the eye. The punch knocked her out; she fell to the sidewalk. When L.C. regained consciousness she felt blood all over her face, and defendant was yelling at her. She decided not to move, and he left. Police arrived and L.C. was taken to the hospital by ambulance. She had a cracked orbit bone and her eye was swollen shut. Two weeks later, L.C. had surgery, but at the time she testified, she still had double vision in two spots in her eye.
DISCUSSION
Defendant argues the trial court improperly issued a protective order prohibiting him from having any contact with the victim for a period of 10 years. The trial court issued this protective order on an outdated version of Judicial Council Form CR-160 entitled "Criminal Protective Order—Domestic Violence." This outdated version of Form CR-160 was used in cases involving sections 136.2 (victim/witness intimidation pending trial) and 1203.097 (probation imposed for domestic violence offense). To issue the protective order, the court relied on section 1203.097, even though defendant was denied probation and sent to prison.
The revision date on the form is illegible.
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Form CR-160 was revised on January 1, 2009, to also include protective orders under subdivision (i) of section 273.5 (corporal injury to a spouse or cohabitant) and subdivision (k) of section 646.9 (stalking). Defendant contends none of the sections on either form apply in his case, because he was convicted of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) and battery against a cohabitant or girlfriend (§ 243, subd. (e)(1)).
The People essentially concede the protective order is not authorized under the sections listed on Form CR-160. However, the People contend the court had inherent authority to issue the protective order given the circumstances. The record indicates the victim was afraid to testify, and the evidence showed there were recurring, vicious attacks on the victim, as well as a similar attack on a former girlfriend.
Relying on People v. Ponce (2009) 173 Cal.App.4th 378, 383 (Ponce), defendant argues the trial court lacked inherent authority to issue the protective order. The defendant in Ponce was convicted of a robbery (§ 211), which was committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(C)). At the time of sentencing, the court used Form CR-160 to grant the prosecutor's request for a three-year protective order prohibiting contact with the victim. (Ponce, supra, 173 Cal.App.4th at pp. 380-381.) On Form CR-160, the trial court did not check the box indicating the statutory basis of the protective order. (Id. at p. 382.) The appellate court concluded there was no statutory authority for the protective order under section 136.2 or under section 1203.097. Section 136.2 only protects victims or witnesses during the pendency of a criminal action in the trial court. Section 1203.097 did not apply because this was not a domestic violence case where the defendant was placed on probation. (Ponce, at p. 382.)
The appellate court also cautioned trial courts not to exercise inherent powers in a way that negates existing statutory law regulating restraining orders. (Ponce, supra, 173 Cal.App.4th at p. 384.) "An existing body of statutory law regulates restraining orders. '"[I]nherent powers should never be exercised in such a manner as to nullify existing legislation . . . ."' [Citation.] Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives. [Citation.]" (Ibid.)We agree with Ponce and conclude the trial court in this case did not have statutory or inherent authority to issue the protective order.
The Legislature has specifically provided for the issuance of a restraining order to protect victims of domestic violence from their attackers. Subdivision (i) of section 273.5 states that if a defendant is convicted under subdivision (a) of section 273.5 of willful infliction of corporal injury on a cohabitant or former cohabitant "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. . . . This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation."
To be guilty of violating subdivision (a) of section 273.5, a defendant must willfully inflict on a cohabitant or former cohabitant "corporal injury resulting in a traumatic condition." (§ 273.5, subd. (a).) "As used in this section, 'traumatic condition' means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (c).)
In this statutory scheme, the Legislature could have provided courts with authority to issue restraining or protective orders for violations of other crimes that may be charged in domestic violence cases in lieu of section 273.5, but it did not do so. Instead, subdivision (i) of section 273.5 expressly limits the issuance of restraining or protective orders in domestic violence cases to those convicted of violating subdivision (a) of section 273.5.
Evidence presented at trial demonstrated the victim was defendant's cohabitant or former cohabitant and defendant inflicted injuries on the victim by physical force, which could have been used to charge and convict defendant with a violation of subdivision (a) of section 273.5. However, this particular offense was not alleged in the charging document. For a reason that is unclear from the record, defendant was instead charged and convicted by a jury of violating subdivision (a)(1) of section 245, assault by means likely to produce great bodily injury, and subdivision (e)(1) of section 243, battery against a cohabitant or girlfriend. Thus, to uphold the restraining order in this case on statutory grounds, we would have to insert a reference to sections 245 or 243 into subdivision (i) of section 273.5, even though these sections were not included by the Legislature. "It is an elementary principle that the judicial function is simply to ascertain and declare what is in the terms and substance of a statute, not to insert what has been omitted or omit what has been inserted." (People v. Sharp (2003) 112 Cal.App.4th 1336, 1342.)
We acknowledge the seriousness of the evidence detailing the nature and extent of violence perpetrated by defendant on two different women. Defendant put both victims at grave risk of death or serious harm, particularly given the testimony indicating he grabbed both victims around the neck and pressed his thumbs into their throats so hard they either passed out or could not breathe. There was also evidence defendant continued to contact the victim in this case during trial. Later, the victim was contacted by the probation department, and she indicated "she does not want anything to do with defendant. . . . . [I]t was a very traumatic experience for her [and] she just wants the defendant to stay away from her." Thus, under the circumstances, the trial court would certainly have been justified in having a concern about the victim's safety in the future. If defendant had been convicted of violating subdivision (a) of section 273.5, a 10-year protective order under subdivision (i) of section 273.5 would have been within the trial court's discretion.
On the other hand, we do not view this as a case where the court's very limited "inherent authority" should be used to fill any perceived gap in the statutory scheme. To interpret the court's inherent authority this broadly under the circumstances of this case would negate existing statutory authority. Defendant was sent to state prison for a period of three years. In addition, a protective order under Penal Code section 273.5, subdivision (i) is not the only remedy available to protect the victim's safety in the future. For example, if defendant continues to harass the victim and she believes he is a threat to her safety, she may seek a restraining order against him under Code of Civil Procedure section 527.6. We therefore conclude the protective order in this case is invalid and should be stricken.
DISPOSITION
The protective order prohibiting defendant from contacting the victim for a period of 10 years is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
KING
J.