Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR544468
Richman, J.
Defendant Dario Joseph Carafa appeals from the order adding a condition of probation that directs him to have no contact with a minor sexual abuse victim.
In August 2008 it came to the attention of law enforcement authorities that defendant—then aged 18—might be having improper sexual relations with a 14-year-old girl. Whether the relations were consensual or amounted to rape was an open question. When contacted, the victim told police that she had run away from home and was spending considerable time in defendant’s company.
A complaint was filed charging defendant with three felony counts of unlawful sexual conduct with a minor (Pen. Code, § 261.5), and a misdemeanor charge of unlawfully tattooing the minor. At defendant’s arraignment on the complaint on September 18, 2008, the prosecutor advised the court that she was requesting a “criminal protective order” because “We have information that the minor and the defendant continue to see each other. She’s 14 and she’s truant. She’s having trouble doing what she needs to do. So we need an order keeping them apart.” The court explained to defendant, “you have a right to a hearing before I issue a criminal protective order. This order will prohibit you from having contact with the victim in this case. Do you agree to the issuance of that order without a hearing?” Defendant replied, “Yes.”
Further statutory references are to the Penal Code unless otherwise indicated
That same day the court issued a “Criminal Protective Order—Other Than Domestic Violence (CLETS-CPO) (Penal Code § 136.2).” Headed “Order Pending Trial,” the order directed defendant to “take no action,” and “have no personal, electronic, telephonic, or written contact” with the minor, and not come within 100 yards of her.
“CLETS” is an acronym for California Law Enforcement Telecommunications System, an electronic identification system administered by the Department of Justice. (See Gov. Code, § 15100 et seq.; People v. Martinez (2000) 22 Cal.4th 106, 113.) We assume that “CPO” is an acronym for Criminal Protective Order.
Defendant’s felony preliminary hearing was scheduled for November 19, 2008. On that date, the parties reached a negotiated disposition. Defendant agreed to enter a plea of no contest to one of the unlawful sexual conduct charges in exchange for dismissal of all other charges, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and understandings that he would be admitted to probation and would not be sentenced to state prison unless he violated the conditions of his probation.
On February 6, 2009, the court suspended imposition of sentence and admitted defendant to three years’ probation upon specified conditions, among which were that defendant serve five months in the county in jail, and that he avoid the victim and have no contact “either directly or indirectly” with her.
At the end of the hearing, the prosecutor raised “Your Honor, one further matter. [¶]... [¶] Although the court has as a term of probation no contact, I’ve been told it’s also a good idea to actually get—the CPO [criminal protective order] that’s in here now says pending trial. So I was looking for a form and couldn’t find one. I will rewrite it and give it to Mr. Turer [defense counsel] in advance, and then we can serve it. But the CPO... would then go into CLETS.” The court responded “That can be submitted in chambers if Mr. Turer approves.”
The prosecutor’s “further matter” was the subject of a hearing conducted on February 25, 2009, because Mr. Turer did not approve. He told the court “There is no need for a criminal protective order” because “There has been no contact whatsoever between these people since way back when these charges were first brought.”
When the court inquired if the order made at the time of defendant’s arraignment “remains in effect,” the prosecutor responded: “No, because the check mark is on ‘order pending’—if you look up at the boxes, the check mark is ‘order pending trial.’ So our office now... in cases where we want to be sure CLETS reflects that there is to be no contact, we prepare a new order because now we check ‘order post trial.’ [¶]... [¶] I’ve tried to just check a new—just scratch it out and check the new box. Apparently that doesn’t work. I apparently need to do a whole new order.” Defense counsel Turer argued that a new order would be “redundant.” Taking the position that “I’m not going to issue a new criminal protective order without a hearing,” the court scheduled one for the following month.
On March 25, the court heard defense counsel, citing People v. Stone (2004) 123 Cal.App.4th 153, argue that a new order required the court “to make a finding that there’s some risk in the future to Mr. Carafa’s attempting to have some contact with this young lady,” and that “[t]here’s no evidence, [not] one iota of evidence, to suggest that Mr. Carafa has any intention, desire, or that the young lady has any concern that he’s going to try to contact her.” The trial court decided that “once I have issued a condition of probation that prohibits contact, I believe the appropriate way to enforce that prohibition is through the CLETS system. And the criminal protective order is the mechanism to obtain that result.” The court added that “if I had fully understood the legal issue I don’t think I would have set it for hearing.”
The court vacated the previous order and issued a “Protective Order In Criminal Proceeding (CLETS) (Penal Code §§ 136.2 and 1203.097(a)(2)).”
Defendant reiterates the argument made at the March 25 hearing—the “post-trial criminal protective order... was unauthorized by law” because there was no showing of prospective harm, as required by section 136.2. Nevertheless, defendant states in his brief “it is questionable whether section 136.2 is applicable at all post-sentencing.” This is true, and it is also why defendant’s contention is without merit.
The pertinent language of section 136.2 states that “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, any court with jurisdiction over a criminal matter may issue orders including.... [¶] Any order issued pursuant to Section 6320 of the Family Code” or “Any order protecting victims of violent crime from all contact by the defendant....” (§ 136.2, subds. (a)(1) & (a)(7)(A).) The cited provision of the Family Code specifies that “The court may issue an ex parte order enjoining a party from... contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of... the other party,... on a showing of good cause....” (Fam. Code, § 6320, subd. (a).)
The Attorney General directs our attention to section 1203.097, which provides in pertinent part: “If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] (1) A minimum period of probation of 36 months... [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions.” (§ 1203.097, subd. (a).) Family Code section 6211 defines “domestic violence” as “abuse perpetrated against” specified classes of persons, including “A person with whom the respondent is having or has had a dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).) Unlike many provisions of the Penal Code that have designated predicate offenses, section 1203.097 is not limited to situations where a criminal defendant is charged with one of those offenses, but instead imposes a mandatory duty in all cases where the victim comes within the definition of a victim of domestic abuse as defined by Family Code section 6211. (See People v. Cates (2009) 170 Cal.App.4th 545, 550-551.)
This is the key. Defendant clearly had what amounts to a “dating relationship” with the victim. The court had before it information that the victim had been “seeing” defendant for “about a year.” She called defendant her “boyfriend,” and he call her his “girlfriend.” They had sex more than a dozen times over the course of at least a year. The teenage girl thus met the definition of a victim of domestic abuse under Family Code section 6211, which in turn activated the mandatory application of section 1203.097.
Defendant’s reliance, in the trial court and here, upon People v. Stone, supra, 123 Cal.App.4th 153, is misplaced. That decision explicitly holds that the “only purpose” of section 136.2 “is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.” (Id. at p. 159.) “[T]he restraining orders authorized by section 136.2 are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them.” (Id. at p. 160; see People v. Selga (2008) 162 Cal.App.4th 113, 118-119 [“protective orders issued under section 136.2 were operative only during the pendency of the criminal proceedings and as prejudgment orders”]; People v. Ponce (2009) 173 Cal.App.4th 378, 383 [same, plus section 136.2 “authorizes only a limited duration protective order”].) Although section 1203.097 is not mentioned, it may well have figured in the court’s thinking, as evidenced by the court noting, “Here, the restraining orders... were not a probation condition, as appellant was not given probation.” (People v. Stone, supra, at p. 160.)
If the defendant is not admitted to probation, but is sentenced to state prison, neither section 136.2 nor section 1203.097 is operative. (See People v. Ponce, supra, 173 Cal.App.4th 378; People v. Stone, supra, 123 Cal.App.4th 153.) But if the defendant who has committed an offense against a domestic abuse victim under Family Code section 6211 is granted probation of at least three years’ duration, section 1203.097 requires (“shall include”) a criminal protective order. Because it is mandatory, the protective order does not have to meet the good cause requirement of section 136.2. Given the circumstances of defendant’s situation, imposition of a protective order in accordance with section 1203.097 was virtually a ministerial duty. This, we believe, is the import of the trial court’s comment that once it “fully understood the legal I don’t think I would have set it for hearing” to consider an evidentiary need for a new protective order under section 136.2.
In Selga, the defendant was admitted to probation, but the protective order was nevertheless reversed because it was issued in favor not of the victim, but the boyfriend she took up with after her relationship with the defendant ended. (See People v. Selga, supra, 162 Cal.App.4th 113, 119 [“there is no provision in section 1203.097 for the protection of a current boyfriend of a person actually entitled to protection”].)
It seems to be true, as noted by defendant’s trial counsel, that there is a measure of redundancy, in that the no contact prohibition is a condition of defendant’s probation as well as the subject of the new order. Nevertheless, the redundancy appears to have purpose. The probation condition may be enforced by the court and probation authorities of Sonoma County, while the order can have statewide application. In any event, the trial court is to be commended for making any additional overlap when it vacated the first order.
The order is affirmed.
We concur: Kline P.J., Lambden, J.