Opinion
C072928
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON PAUL FERGUSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF122187)
Defendant Jason Paul Ferguson pleaded no contest to inflicting corporal injury on a cohabitant with prior convictions for the same offense, and admitted he inflicted great bodily injury in doing so. (Pen. Code, §§ 273.5, subds. (a), (e)(1), 12022.7, subd. (e).) Defendant also admitted a prior strike conviction. (§ 667, subd. (e)(1).) The trial court sentenced defendant to a 15-year state prison sentence in accordance with the plea bargain. The court also imposed a three-year criminal protective order pursuant to section 646.9, subdivision (k), as to the victim and three minors.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant contends the criminal protective order was not authorized as to the three minors because nothing in the record indicates their relationship to the victim, the defendant, or the instant offense. We agree the protective order was not authorized as to the minors, and we shall order their names stricken from it. We also conclude that, as to the victim, the protective order should have issued pursuant to either sections 136.2, subdivision (i)(1), or 273.5, subdivision (i), not section 646.9, subdivision (k). There being no substantive difference between the two sections, we modify the protective order to issue under section 273.5, subdivision (i).
FACTUAL AND PROCEDURAL BACKGROUND
The record contains no preliminary hearing transcript, and defendant waived preparation of a presentence probation report.
The only facts of the crime appear in the plea form signed by the parties and the court: "[O]n or about September 27, 2012, the Defendant punched his cohabitant, Amy McConnel[l], multiple times in the face, causing loss of consciousness, black eyes, multiple contusions to her face and neck, bleeding from her eyes and nose, and a broken nose. The Defendant dragged Ms. McConnel[l] to the bathroom by her hair, where he made her get into the shower to wash the blood from her face. The Defendant forced her to keep her face in the water and yelled at her to stop bleeding. The Defendant eventually allowed Ms. McConnel[l] to leave the bathroom. Ms. McConnel[l] escaped their apartment in her bra and panties. The Defendant found her a short time later and was forcibly escorting her back to their apartment when officers arrived."
The box labeled "Police Report" was checked, indicating these facts came from a police report; however, the police report is not part of the record on appeal.
The plea form also indicated defendant was previously convicted of a section 422, making criminal threats, a serious felony offense within the meaning of section 667, subdivision (e)(1). The form also indicated that he was previously convicted twice of section 273.5, subdivision (a).
Following defendant's negotiated plea, defendant was sentenced to a stipulated 15-year prison term.
The trial court also granted the prosecution's request for a protective order using Judicial Council form CR-160 (rev. Jan. 2009), indicating that the order was issued pursuant to section 646.9, subdivision (k). This order directed defendant not to have any contact for three years with Ms. McConnell, Jaymes M. (born July 2002), Jazmy B. (born August 1998), and Alyssa B. (born April 1997). Defendant did not object to the order.
DISCUSSION
Defendant contends on appeal that the trial court had no authority to enter a protective order under section 646.9, subdivision (k), in favor of the three named minors. We review the trial court's order granting a protective order under the abuse of discretion standard of review. (Cf. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.)
We reject the People's assertion that we may not consider this issue on appeal because defendant failed to object in the trial court. Defendant's claim is cognizable on appeal because imposition of a protective order absent statutory authorization would result in an unauthorized sentence in excess of the trial court's jurisdiction. (People v. Ponce (2009) 173 Cal.App.4th 378, 381-382 (Ponce); see also People v. Scott (2012) 203 Cal.App.4th 1303, 1310-1311 [no forfeiture where the challenge on appeal is to an unauthorized nonpunitive sentencing directive].)
Defendant is correct that the protective order was not authorized in this case by section 646.9 for any of the protected individuals. Section 646.9 punishes stalking (§ 646.9, subd. (a)), and subdivision (k) of that section pertains to victims of that offense. Subdivision (k)(1) of section 646.9 provides in pertinent part: "The sentencing court . . . 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." The People do not contend that section 646.9 authorized the trial court to issue a no contact order here and we agree with their implied concession that it did not, as defendant was not convicted of stalking. (See People v. Clayburg (2012) 211 Cal.App.4th 86, 88, 91 (Clayburg).)
As to Ms. McConnell, however, a criminal protective order could have been lawfully issued under section 136.2, subdivision (i)(1), or section 273.5, subdivision (i). Both parties agree that the trial court had the authority to issue a protective order under either of these provisions. However, the record here shows that the trial court signed a written order presented by the prosecutor with the section 646.9, subdivision (k), box checked. It does not appear that the trial court considered the legal authority for the order or noticed that the section 646.9, subdivision (k), box had been checked.
The Judicial Council form used here includes boxes for orders under sections 136.2, 273.5, subdivision (i), and 646.9, subdivision (k).
Section 136.2, subdivision (i)(1), provides: "In all cases in which a criminal defendant has been convicted of a crime of 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 the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail, or whether imposition of sentence is suspended and the defendant is placed on probation. 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 the victim and his or her immediate family." (Italics added.)
Subdivision (i) of section 273.5 similarly provides: "Upon conviction under 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. 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." (Italics added.)
As can be seen, the court was statutorily required to consider imposition of a protective order as a part of the sentence in light of defendant's conviction for section 273.5. (§§ 136.2, subd. (i)(1); 273.5, subd. (i).) However, the wrong box was checked by the prosecutor. " ' "No 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.) In other words, it would not matter even if the trial court had relied on an erroneous statute, as sections 136.2, subdivision (i)(1), and 273.5 subdivision (i), provided authority to issue a criminal protective order for Ms. McConnell, the victim.
The same cannot, however, be said of the minors identified on the order as protected persons. Defendant is correct there is no evidence in the record supporting the inclusion of the minors in the scope of the protective order. We are not persuaded by the People's assertion that "it is reasonably inferable" that the three minors are Ms. McConnell's children and that all three have some relationship to the offense which "would have been disclosed on the record" had there been a preliminary hearing, or probation report. The record is simply silent as to whom these minors are and we cannot infer their relationship to the case from a silent record.
" '[J]udicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the " 'legal principles governing the subject of [the] action.' " ' " (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264-1265; accord, Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337.) Trial courts do not have inherent authority to issue protective orders. (Ponce, supra, 173 Cal.App.4th at pp. 384-385.) The authority is strictly statutory. The plain language of sections 273.5, subdivision (i), and 136.2, subdivision (i)(1), provide for a protective order to issue in favor of the victim of the domestic violence. The record shows only that defendant's cohabitant, Ms. McConnell, was the victim of a single assault. The three minors were not alleged to be victims of the assault, and the stipulated factual basis does not suggest they were present, suffered emotional trauma or otherwise victimized by the crime for which defendant was convicted.
The People rely on Clayburg, supra, 211 Cal.App.4th 86 in asserting a protective order under section 273.5, subdivision (i), or 136.2, subdivision (i)(1), could be extended to the children. That reliance is misplaced.
At issue in Clayburg was a protective order issued pursuant to section 646.9. However, the pertinent language of section 646.9, considered by the Clayburg court, is very similar to the language of sections 136.2, subdivision (i)(1), and 273.5, subdivision (i). As we have noted, section 646.9, subdivision (k)(1), 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." (Italics added.) It is the italicized language upon which the People apparently rely.
In upholding the restraining order, which named the daughter of the victim as a protected person in addition to the victim, the Clayburg court rejected the defendant's assertion that the order was unauthorized because their daughter was not a named victim of the stalking charge. (Clayburg, supra, 211 Cal.App.4th at pp. 90-93.) The court eschewed a "literal reading" of the first sentence of section 646.9, subdivision (k)(1), one that it concluded would result in a " ' "a grotesque caricature of the Legislature's purpose." ' " (Clayburg, at p. 91.) Instead, the Clayburg court read the two sentences together, stating: "To strictly construe the statute and read the first sentence to the exclusion of the second would defeat Legislative 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." (Ibid.) Based on the two sentences in section 646.9, subdivision (k)(1), set forth above, the Clayburg court concluded that a restraining order protecting the child of the named victim was authorized, reasoning: "the Legislature intends that the courts protect a child of a named victim. The second sentence [of section 646.9, subdivision (k)(1)], to a certainty, shows that the Legislature has a legitimate concern for the 'safety' of a child of a named victim. We also observe that the actual definition of the crime of stalking speaks to the fear suffered by a member of the named victim's 'immediate family.' (§ 646.9, subd. (a).) Our construction of the statute 'promotes justice.' A contrary construction would, in our view, defeat justice." (Clayburg, at p. 89.) Thus, the Clayburg court held that "a member of the immediate family of a stalking victim . . . who suffers emotional harm, here a child, is a 'victim' for purposes of a postconviction restraining order." (Id. at p. 88, italics added.)
In Clayburg, the daughter witnessed her mother's stalking behavior directed towards her father, the named victim. On one occasion, defendant pounded a golf club on the front porch, and demanded custody of daughter. The daughter heard the pounding and ran into her room crying. (Clayburg, supra, 211 Cal.App.4th at p. 89.) On another occasion, the daughter heard a voicemail message from the defendant in which the defendant told the father, " 'The devil wants you. God is going to let him get you and you are going to like it because you are his [the devil's] brother.' " The message scared the daughter and she asked the victim, " 'Daddy, why is . . . Mommie saying the devil is going to get you?' " (Id. at pp. 89-90.) On yet another occasion, steer manure was dumped on the front porch and driveway of the home where the daughter and her father resided, and the defendant later admitted to her daughter that she had dumped it there. (Id. at p. 90.) On still another occasion, the daughter was awakened by window glass shattering in her home after defendant had broken three windows. (Ibid.) The daughter provided testimony in which she said these incidents made her " 'feel scared and just nervous' " and she sometimes stayed at a relative's house because she was afraid. At all times, she carried on her person a previously issued restraining order prohibiting the defendant from contacting her. (Ibid.) The Clayburg court concluded that, because the victim's daughter suffered emotionally, was traumatized by the defendant's conduct, and was the recipient of a previously issued civil restraining order she felt compelled to carry at all times, the daughter was "a person who is within the 'wider net' of the second sentence of [section 646.9, subdivision (k)(1)]." (Clayburg, at p. 91.)
Clayburg does not support the inclusion of the minors as protected parties here. Aside from the absence of any evidence regarding the minors' relationship to the victim, Ms. McConnell, there is no evidence indicating they were victims or otherwise suffered emotional harm as a result of defendant's commission of the offense for which he was convicted. Indeed, the record does not even indicate they were present when defendant attacked Ms. McConnell.
DISPOSITION
The names of the minors Jaymes M., Jazmy B., and Alyssa B. are stricken from paragraph 4 of the protective order. The protective order is also modified to reflect that it is issued under section 273.5, subdivision (i). In all other respects, the judgment of conviction and sentence are affirmed.
MURRAY, J. We concur: NICHOLSON, Acting P. J. HULL, J.