Opinion
B224625
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. FREDDY FOSTER, Defendant and Appellant.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA366432)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Affirmed as modified.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Freddy Foster appeals from his conviction of misdemeanor battery upon a cohabitant and the issuance of a criminal protective order (Pen. Code, § 136.2) following that conviction. We direct modification of the order and, as modified, affirm.
FACTS AND PROCEEDINGS
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Donald Walker rented a room in his house to appellant Freddy Foster and appellant's girlfriend, Shonette. On January 1, 2010, appellant and Shonette got into a heated argument at home. As their argument grew louder, Walker called the police. When the police arrived, one officer saw a fresh scrape or abrasion on Shonette's upper lip, and a second officer heard appellant say to Shonette, "You are not going to tell 'em, right?" Shonette told the officers that her "boyfriend," whom she did not identify as appellant, had departed from the scene after punching her in the mouth. As the officers continued their investigation, Shonette admitted lying and told them appellant had, in fact, punched her. According to the officers, Shonette told them she initially directed their attention away from appellant because she was afraid of him. Based on Shonette's injury and the officers' assessment of Shonette's and appellant's credibility, the officers arrested appellant.
The People filed an information alleging appellant committed felony corporal injury to a cohabitant. (Pen. Code, § 273.5, subd. (a).) Appellant pleaded not guilty. A jury acquitted appellant of the charged felony, but convicted him of the lesser included offense of misdemeanor battery of a cohabitant. (§ 243, subd. (e)(1).) At sentencing, appellant refused probation. The court sentenced him to 365 days in county jail with 234 days presentence custody credit, consisting of 117 days actual custody and 117 days good time/work time. This appeal followed.
DISCUSSION
1. Duration of Criminal Protective Order
A. Trial Court Proceedings
At the end of appellant's preliminary hearing in January 2010, the magistrate issued a protective order under Penal Code section 136.2. The order itself is not in the record. An order issued under section 136.2, commonly called a "criminal protective order," prohibits a defendant from intimidating or harming witnesses and victims for participating in criminal proceedings. Section 136.2, subdivision (a) states: "[U]pon 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, but not limited to, the following: [¶] . . . [¶] (7)(A) Any order protecting victims of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant." At appellant's sentencing hearing in April 2010, the court ordered the protective order to remain in effect for three years from the magistrate's issuance of it on January 5, 2010.
All undesignated code references are to the Penal Code.
B. Parties' Contentions on Appeal
Appellant contends the court erred because a protective order under Penal Code section 136.2 may not continue past the end of the criminal proceedings from which it sprang. Citing People v. Stone (2004) 123 Cal.App.4th 153 (Stone), and People v. Selga (2008) 162 Cal.App.4th 113 (Selga),appellant contends the order is operative only as a prejudgment order during pendency of a criminal proceeding. (Selga, at pp. 118-119.) Appellant refers us to this language from Stone:
"Although [Penal Code] section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the
criminal action in which they are issued or to probation conditions, it is properly so construed. It authorizes injunctions only by courts with jurisdiction over criminal proceedings and is aimed at protecting only 'victim[s] or witness[es],' an indication of its limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them. This is in stark contrast to Code of Civil Procedure section 527.6 which is applicable to protect any 'person who has suffered harassment,' . . . The narrower scope of [Penal Code] section 136.2 suggests that the Legislature did not intend it to authorize restraining orders beyond those germane to the proceedings before the criminal court. [¶] . . . [¶] . . . Here [in Stone], the restraining orders were issued for three years. They were not limited to the pendency of the criminal proceeding and were not a probation condition, as appellant was not given probation. The restraining orders therefore transcended the authorization of [Penal Code] section 136.2 and must be reversed." (Stone, supra, 123 Cal.App.4th at pp. 159-160.)
In 2008, in response to Stone, supra, 123 Cal.App.4th 153, the Legislature amended section 136.2 because it considered Stone's interpretation of "good cause" did not provide adequate protection to victims of domestic violence. (Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 959-964.) The Legislature did not address the other ground on which the Stone court reversed the criminal protective order, namely that the order could not be issued for a three-year period and was "limited to the pendency of the criminal proceeding." (Stone, supra, at p. 160.)
Respondent Attorney General agrees with appellant that the protective order expired upon termination of the criminal proceedings against him. Appellant and respondent disagree, however, on what marks the end of the proceedings. Appellant asserts the proceedings ended when the court pronounced sentence and remanded him to the Los Angeles County Sheriff Department's custody on April 27, 2010, to serve his county jail sentence. Respondent asserts, on the other hand, the proceedings ended when appellant completed his jail sentence.
Neither side cites any authority for its position.
C. Analysis
Penal Code section 136.2 is one of many statutes that authorize court orders to protect victims and witnesses. (See, e.g., Pen. Code, § 273.5, subd. (i) [protective order of maximum of 10 years following conviction of felony domestic violence]; Pen. Code, § 646.9 [protective order of maximum of 10 years following conviction of stalking]; Pen. Code, § 1203.097 [domestic violence probation terms must be for a minimum of three years and must include a criminal protective order]; Pen. Code, §§ 422.85, 422.88 [protective order of unstated duration following conviction of designated hate crimes]; Pen. Code, § 3053.2 [protective order of unstated duration when person convicted of domestic violence is placed on parole]; Pen. Code, § 3053.4 [protective order of unstated duration when person convicted of hate crime is placed on parole]; Code Civ. Proc., § 527.6, subd. (d) [civil harassment order duration of three years]; see also Fam. Code, § 6345 [three-year renewal of family law orders to protect parties' safety].) Some of these orders carry a maximum duration; others have no express time limit. Penal Code section 136.2 is one of the latter.
The parties frame the issue for us as "when do criminal proceedings end:" appellant posits it is the time that judgment is entered; respondent counters with the completion of sentence. To some degree, the issue presented by the parties is at odds with the language of the statute. Section 136.2 does not use the term "criminal proceedings." The operative language is:
"(a) Except as provided in subdivision (c), 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, but not limited to, the following [enumerated types of orders] . . . ."
The only time period mentioned in the statute is the time a court possesses the power to issue an order. Any "court with jurisdiction over a criminal matter" (§ 136.2, subd. (a)) may issue a section 136.2 order. Neither party disputes that the trial court here had jurisdiction over the criminal matter when the magistrate issued the original protective order after the preliminary hearing and when the sentencing judge issued the order at the close of the case.
The dilemma presented by the statutory language is not, "When do criminal proceedings end?" It is: "What is the duration of a criminal protective order when the Legislature has not expressly stated a time period?"
Three published Court of Appeal opinions have addressed the duration of orders under Penal Code section 136.2. (See People v. Ponce (2009) 173 Cal.App.4th 378, 381 (Ponce); Selga, supra, 162 Cal.App.4th at pp. 118-119; Stone, supra, 123 Cal.App.4th at pp. 159-160.) After correctly observing that the statute itself does not provide a maximum duration for the order, the Stone court construed section 136.2 as limiting the order to "the pendency of the criminal action." (Stone, at p. 159.) It concluded orders under section 136.2 are aimed at protecting victims and witnesses, thereby preserving "the integrity of the administration of criminal court proceedings." (Stone, at p. 159.) Because of the limited nature of section 136.2 orders, "the Legislature did not intend it to authorize restraining orders beyond those germane to the proceedings before the criminal court." (Stone, at p. 159.) If section 136.2 were not so limited, there would be considerable overlap of section 136.2 and civil restraining orders issued pursuant to Code of Civil Procedure section 527.6. Stone did not purport to define the end of criminal proceedings.
Code of Civil Procedure section 527.6 has several procedural safeguards not contained in Penal Code section 136.2, including the requirement for a hearing on the restraining order petition, the taking of testimony, proof by clear and convincing evidence, and a three-year time period. (Code. Civ. Proc., § 527.6, subd. (d).)
Stone was followed by Selga. In Selga, the defendant was convicted of stalking his ex-girlfriend (§ 646.9), misdemeanor violation of a court order (§ 273.6) and a drug offense. The issue presented to the Court of Appeal was whether a protective order issued to protect the ex-girlfriend and her current boyfriend was lawful. Much of the discussion addressed the validity of the order as a probation term under section 1203.097, a section that makes mandatory certain protective orders in domestic violence probation cases. Early in the proceedings, the trial court had issued section 136.2 orders to protect the ex-girlfriend and her current boyfriend. A family law order was also issued, and these orders became part of the probation conditions under section 1203.097. The defendant argued the orders were not statutorily authorized. The Court of Appeal concluded that neither section supported the issuance of the orders in question. Relying on Stone, the court stated that protective orders under section 136.2 "were operative only during the pendency of criminal proceedings and as prejudgment orders." (Selga, supra, 162 Cal.App.4th at pp. 118-119.)
The third case is Ponce, supra, 173 Cal.App.4th at page 383. There, the defendant was sentenced to a 13-year prison term for robbery and gang findings. Ponce held a three-year protective order was not authorized by section 136.2 because the victim had not been threatened or dissuaded from testifying and because a section 136.2 order cannot extend beyond the conclusion of criminal proceedings. The court agreed with Selga that section 136.2 authorizes only a "limited-duration protective order," which is " 'operative only during the pendency of criminal proceedings and as prejudgment orders.' " (Ponce, at p. 383.)
We agree with these cases that Penal Code section 136.2 orders are only operative prejudgment, and a three-year order is not authorized by section 136.2 if the duration of the order extends beyond the imposition of sentence. Unlike the other criminal protective order statutes cited earlier, section 136.2 is designed to protect witnesses and victims from being intimidated to give testimony. No testimony is forthcoming after the defendant has been sentenced. In contrast, the Legislature has expressly authorized protective orders during the extended time a defendant is on probation, as sentence has not been imposed and the court continues to have jurisdiction over the defendant (Pen. Code, § 1203.097; see 3 Witkin, Cal. Criminal Law (3d. ed. 2000) Punishment, § 502, p. 683.) Probation violation hearings may take place at which witnesses and victims may testify. The Legislature has also seen fit to require the imposition of protective orders of up to 10 years in certain domestic violence and stalking cases. These orders may be issued without regard to whether the defendant is sentenced to state prison, to county jail, or placed on probation. (Pen. Code, §§ 273.5, subd. (i), 646.9.) Similar language is not found in Penal Code section 136.2.
In theory, a three-year order would be authorized in the rare criminal case that took longer than three years to come to trial. We do not express an opinion on whether the trial court has the authority to issue an order under section 136.2 postjudgment in cases in which sentence has been recalled under section 1170, subdivision (d).
Given the different approaches the Legislature has taken to criminal protective orders in a variety of settings, it is unlikely the Legislature intended the expiration of orders under section 136.2 to be measured by the defendant's sentence. In the present case, an extended order, even under respondent's theory, would only have been for one year. But the rule offered by respondent is that the order may extend until the defendant's sentence has been served. If that were to be so, in three strikes and other life sentence cases, the order would remain in effect for life.
We conclude that the protective order in this case expired by law at the time defendant was sentenced. We do not direct the trial court to strike the order because there may be valid reasons to maintain the order as part of defendant's criminal history. (See §§ 136.2, subd. (h) [protective order database], 273.75 [same].) Accordingly, we direct the trial court to modify the order so that it expired at the time of sentence.
2. Sufficiency of the Evidence of Battery
Appellant was convicted of misdemeanor battery, which involves a willful touching that is harmful and offensive. Accidental touching is not battery. (People v. Lara (1996) 44 Cal.App.4th 102, 107-108; see also § 242.) Appellant contends the record contains no substantial evidence that he willfully touched Shonette in a harmful or offensive way. He notes no witness, including Landlord Walker who was in the house during their argument, testified to seeing him hit Shonette, and Shonette testified no battery occurred. Instead, she told the jury that she lost her balance because she had been drinking and fell as she threw an ashtray at appellant while they argued. During her fall, she testified, she injured her lip.
Appellant's contention asks us to weigh the jury's credibility determinations, which we may not do. (People v. Lee (2011) 51 Cal.4th 620, 632.) Here, there was sufficient evidence to support the conviction for battery. Landlord Walker called the police because Shonette and appellant were arguing. When the police arrived, they saw Shonette's lip was freshly injured. After the officers overheard appellant ask Shonette whether she was going to say anything to the police, Shonette initially told police she had been arguing with her boyfriend who was no longer there. Shonette then told an officer she hurt her lip after falling because she had been drinking, but the officer smelled no alcohol or other signs she had been drinking or was drunk. She then admitted, the officers testified, that appellant had punched her. The jury was free to determine who was telling the truth about the events at issue - Shonette (appellant did not testify) or the officers - and we may not overturn the jury's determination that the officers were more credible than Shonette.
DISPOSITION
The matter is remanded to the trial court to modify the criminal protective order to state it expired upon the date appellant was sentenced. As modified, the judgment is affirmed.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.