Opinion
G061996
01-11-2024
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Super. Ct. No. 22NF0768 Michael J. Cassidy, Judge. Reversed.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
The trial court sentenced Joshua Allen Aubrey to a three-year prison term after a jury found him guilty of felony false imprisonment, robbery, and assault with a deadly weapon. The court thereafter issued a criminal protective order protecting the victim of Aubrey's crimes. Aubrey argues that order was issued in error as it was without any statutory basis; the Attorney General agrees the order was unauthorized. We agree the criminal protective order was issued in error and reverse that order.
FACTS
During the early morning hours of March 24, 2022, D.S. was walking home after getting off work when he saw a woman he knew sitting in a nearby parked car. After she called him over to the car, D.S. walked to the car and started talking with the woman. He noticed there was a person in the backseat of the car who was slumped over as if asleep. Suddenly, the person in the backseat opened the car door, grabbed D.S., and pulled him into the car. The woman simultaneously pushed D.S. into the backseat and then shut the car door. D.S. recognized the person who had pulled him into the backseat of the car as his former drug dealer, Aubrey.
After he was pulled into the car, Aubrey placed D.S. into a chokehold, said "I got you now, motherfucker. I told you I would get you," and told the driver to start driving. Aubrey kept D.S. in "an extremely hard choke hold" while he beat him over the head with a baton; meanwhile, the woman rummaged through D.S.'s pockets. Thirty minutes later, D.S. was left on the side of the freeway without his belongings, which included his wallet, his iPhone, the backpack he carried to work, and his shoes (he was told to kick them off). Bleeding profusely, he walked in his socks to the next freeway exit and found help at a nearby hotel.
During a search of Aubrey's motel room later that day, police officers found D.S.'s backpack, cell phone, identification, and credit cards, among other items. They also found a baton.
PROCEDURAL HISTORY
Aubrey was charged in an amended information with felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a); count 1); robbery (§§ 211, 212.5, subd. (c); count 2); and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found Aubrey guilty on all counts as charged. The trial court sentenced Aubrey to a three-year prison term by imposing the middle term of three years on count two, a concurrent middle term of two years on count 1, and a concurrent middle term of three years on count 3. The trial court stayed execution of sentence on counts 1 and 3 pursuant to section 654. The trial court thereafter issued a criminal protective order. Aubrey timely appealed.
All further statutory references are to the Penal Code.
DISCUSSION
Aubrey argues, and the Attorney General concedes, the criminal protective order was unauthorized. We agree. Section 136.2, subdivision (a) authorizes the issuance of a criminal protective order protecting witnesses and victims during the pendency of a criminal trial. Here, the subject criminal protective order was issued after Aubrey was convicted and the trial court had pronounced judgment.
Section 136.2, subdivision (i) authorizes postconviction criminal protective orders only if the defendant has been convicted of certain specified crimes. Aubrey was not convicted of any of those crimes. Furthermore, the circumstances did not otherwise warrant the issuance of a postconviction criminal protective order in this case. (See People v. Ponce (2009) 173 Cal.App.4th 378, 384-385.) Neither the prosecution nor the victim had requested that such an order be issued. The criminal protective order was therefore issued in error.
DISPOSITION
The postjudgment criminal protective order is reversed.
WE CONCUR: GOETHALS, ACTING P. J., SANCHEZ, J.