Opinion
A149913
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC M. FRANCIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16-NF-002881-A)
Eric Francis pleaded no contest to stalking Diana Doe, his former girlfriend and the mother of his children. (Pen. Code, § 646.9, subd. (a).) At time of sentence, the trial court issued postconviction criminal protective orders requiring Francis have no contact with Doe for 10 years and no contact with their two teenaged sons for three years. Francis argues the children's protective order violated his plea agreement, was not statutorily authorized, and amounts to a termination of his parental rights. We will modify the challenged protective order but otherwise affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the presentence probation report and preliminary hearing testimony.
In February 2016, Francis and Doe lived together with their two sons in Snohomish, Washington. On February 6, 2016, Doe and Francis were arguing near a stove with a pot of boiling water, when Doe felt boiling water hit her waist and thigh. Doe suffered permanent scarring from the burns. She left and stayed at a friend's house. The prosecutor asked Doe, "Did you see where the pot, the boiling water . . . , had gone that was on the stove?" She answered, "Afterwards, I noticed that it was in front of the computer where my son was sitting."
Although Doe told police Francis "poured boiling water on her," at the preliminary hearing she testified she did not see how the boiling water hit her.
On February 8, 2016, Francis and Doe met to discuss ending their relationship. Francis told Doe he had broken a television because "he was angry [she] wouldn't come home." While Doe took him to buy a replacement, Francis made several comments about O.J. Simpson, his traumatic brain injury, and what Simpson had done to Nicole Simpson. Doe then returned with Francis to their previously shared home. Doe stayed outside because she did not feel safe, and they argued about a gun Doe sold without Francis's permission. While Doe stood near the door to the home, Francis went inside saying, "If that's the only way you think that I can kill myself." Hearing rummaging in the kitchen, Doe walked quickly to her car. Francis returned with a butcher knife. Doe entered her car and was backing out of the driveway when Francis threw the butcher knife towards her. It landed on the ground. Francis was arrested after Doe reported the incident to Washington authorities. When Francis posted bail, Doe left Washington with their children to move to Daly City.
In early March 2016, Doe contacted the Daly City Police Department because, since her move to California, Francis had sent her hundreds of text messages and several e-mails in which he threatened to commit suicide. On March 16, 2016, she contacted the police again because Francis told her he had a new gun and was planning to come to Daly City and take the children by any means necessary. Although Doe gave him her attorney's contact information, Francis sent the following series of texts to Doe: " 'No, I'm coming tomorrow. You will have to have me killed. I'm done with your games.' 'You don't want to be reasonable then this is the only option I have. I'm not asking for anything but to be fair. But I swear [o]n the kids the cops come and they will have to kill me.' 'Just so you know. I know you never planned on doing the right thing. So tomorrow know this. I do not plan to leave alive. I hope they do kill me because living without them is not an option. I intend to make them shoot me and it will be in front of you.' 'I told you I was slipping. I told you what this was doing to me and now you will see how much I slipped[.] [Y]ou ignored me when I pleaded with you[.] I begged you but your inability to deal with reality led to this. I begged you to bring them home. Now they can bury me. You're a great mother to let it go this far and fuck . . . those cops. I'm coming there to die.' " Doe was afraid of Francis. She was also frightened for her children, fearing "they will be in the middle of . . . his rage, his anger, his volatile mentality and myself being in danger."
Doe obtained emergency protective orders in San Mateo County and Snohomish County, which forbade Francis from contacting either Doe or their sons. Doe also obtained sole custody of the children. Nonetheless, Francis continued to text Doe, contacting her via a new phone number she had not shared with him. Francis continued to state he was coming to Daly City and, if police tried to stop him, he would commit "suicide by cop" in front of her. Doe then noticed charges on their joint checking account being made at places along the route from Washington to California. She alerted Daly City police, who asked Doe and her children to leave their home. When Francis arrived at the Daly City house later that day, carrying a stun gun, he was arrested for stalking.
After Francis was arrested and a felony complaint was filed, Doe obtained a criminal protective order prohibiting Francis from contacting her or their sons. Francis continued to write letters addressed to their sons, as well as some addressed directly to Doe. Although the letters to the children are not in the record before us, Doe testified one letter addressed to the children was apologetic but also contained a letter to her.
On August 10, 2016, the San Mateo County District Attorney filed a one-count felony information alleging that between February and June 2016, Francis stalked Doe (§ 646.9, subd. (a)). The following September, Francis agreed to plead no contest to the stalking charge, in exchange for a maximum sentence of two years in prison, restitution, and a "no contact order up to 10 years with victim." (Italics added.) Francis signed a change of plea form and initialed his understanding of the agreement. After waiving his constitutional rights, Francis entered a plea as agreed. Facts presented at the preliminary hearing, as well as those presented in police reports, were stipulated by defense counsel and served as the factual basis for Francis's plea.
The probation officer's presentence report recommended issuance of a criminal protective order protecting "the victim." Nonetheless, at sentencing, defense counsel indicated an understanding that a postconviction protective order would be entered in favor of the children. In defense counsel's argument for probation, he suggested Francis was taking responsibility for his actions and "will go through the court system in the future and regain some contact with his children." (Italics added.) The trial court asked the prosecutor for the proposed order, to which the prosecutor replied, "I did not fill out a new one." Although Francis did not object to the children's protective order, he asked the trial court to mark box 16(b) on the order form, which allows peaceful contact for any prospective court-ordered visitation. Specifically, defense counsel confirmed Francis wished to proceed with sentencing, but stated: "With regards to the no contact order, which my client understands . . . he has to abide by, would there be a provision where if the family court becomes involved at some point that he can have access to the children?" (Italics added.) The trial court responded, "Okay. So I'll check that box."
Item 16(b) on Judicial Council Forms, form CR-160 (rev. July 1, 2014), provides for "peaceful contact with the protected persons named above, as an exception to the 'no contact' or 'stay-away' provision . . . only for the safe exchange of children and court ordered visitation as stated in: [¶] . . . [¶] any Family, Juvenile, or Probate court order issued after the date this order is signed."
Thereafter, the trial court sentenced Francis to the middle term of two years in prison. The court indicated it would enter a 10-year protective order for Doe, but only a three-year order for the children, which necessitated preparation of a second form. The trial court recessed while the prosecutor prepared an additional proposed order. During that recess, Francis was transported back to his holding cell. Accordingly, although judgment had already been entered, the matter was continued for entry of the postconviction protective orders.
When the matter was recalled approximately 10 days later, Francis made a Marsden motion, which was heard and denied. The trial court also entered two postconviction criminal protective orders. One of the orders, issued pursuant to section 646.9, subdivision (k), prohibits Francis from having any contact or coming within 100 yards of Doe for a period of 10 years. The other, issued pursuant to section 136.2, prohibits Francis from having any contact with his sons for three years. Despite the court's prior indication it would allow contact for later ordered visitation, box 16(b) was not checked on the latter order. Francis filed a timely notice of appeal, and the trial court issued a certificate of probable cause (§ 1237.5).
II. DISCUSSION
Francis contends imposition of the protective order barring contact with his children violated the terms of his plea bargain. In the alternative, he contends the trial court had no authority under section 136.2 to prohibit contact with his sons because they were not "victims." Francis also argues the restraining order violates his due process rights and is an unlawful de facto termination of his parental rights. Finally, he insists we must, at a minimum, correct the trial court's "clerical error" in failing to check box 16(b). We agree the protective order in favor of the children should be modified to reflect the trial court's intent to check box 16(b). We reject Francis's other arguments. A. Violation of Plea Agreement
" '[P]lea negotiations and agreements are an accepted and "integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments. [Citations.]' [Citation.] A plea agreement 'is a tripartite agreement which requires the consent of the defendant, the People and the court.' [Citations.] 'Acceptance of the agreement binds the court and the parties to the agreement.' " (People v. Feyrer (2010) 48 Cal.4th 426, 436-437, superseded by statute on other grounds as stated in People v. Park (2013) 56 Cal.4th 782, 789 & fn. 4.) "The court, of course, always retains the discretion not to sentence in accordance with the terms of the plea, especially if it subsequently learns of facts or law that render the agreed sentence inappropriate. (§ 1192.5.) As a general rule, if the result will be an increased punishment, the court must allow the defendant to withdraw the plea." (People v. Akins (2005) 128 Cal.App.4th 1376, 1385-1386, italics omitted.) "Failure of the state to honor the agreement violates the defendant's due process rights for which the defendant is entitled to some remedy." (People v. Lopez (1998) 66 Cal.App.4th 615, 636.)
Francis argues his sentence included an order prohibiting contact with his sons that went beyond the scope of the plea agreement. He contends his due process rights were violated because the trial court failed to give an oral section 1192.5 admonishment at the time it took his plea, and then "the sentencing judge also did not recognize her duty to either comply with the negotiated plea agreement or offer [Francis] an opportunity to withdraw his plea."
Francis's argument requires us to consider " 'two related but distinct legal principles.' " (People v. Villalobos (2012) 54 Cal.4th 177, 181.) The first principle is, " 'before taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea.' " (Ibid., italics added.) The second principle is that the parties must adhere to the terms of a plea bargain. (Id. at p. 182.) "In analyzing claims of plea bargain violations, courts distinguish between two facets of plea-taking: advisements and agreement. Each gives rise to a different inquiry, though the two aspects are sometimes confused. With respect to the first facet, the question is whether the court properly advised the defendant concerning plea consequences. With respect to the second facet, the question is whether specific terms or consequences became part of the plea bargain. Thus a defendant's 'claim as to the asserted breach of the plea agreement is distinct from the question whether the trial court properly fulfilled its duty to advise him regarding the direct consequences of his plea.' " (People v. Knox (2004) 123 Cal.App.4th 1453, 1459.)
" 'In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction.' (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) 'This judicially mandated rule of criminal procedure encompasses only primary and direct consequences of a defendant's impending conviction as contrasted with secondary, indirect or collateral consequences.' [Citation.] The advice requirement generally extends only to 'penal' consequences [citations], which are 'involved in the criminal case itself' [citation]. [¶] A consequence is deemed to be 'direct' it if has ' " 'a definite, immediate and largely automatic effect on the range of the defendant's punishment.' " ' " (People v. Moore (1998) 69 Cal.App.4th 626, 630, italics added.) The requirement that a defendant be advised of the direct consequences of the plea is not constitutionally mandated. (People v. Walker (1991) 54 Cal.3d 1013, 1022, overruled on another point by People v. Villalobos, supra, 54 Cal.4th at p. 183.) A defendant asserting error in an advisement must establish prejudice; i.e., he would not otherwise have entered the plea. (People v. McClellan (1993) 6 Cal.4th 367, 378.) Moreover, any claim of error arising from a misadvisement is forfeited on appeal when the defendant does not object to imposition of a sentence that is at variance with the advisement given. (Id. at p. 377.)
"[C]onstitutional due process require[s] that 'both parties, including the state, must abide by the terms of [a plea] agreement' and '[t]he punishment may not significantly exceed that which the parties agreed upon.' [Citation.] A defendant forfeits a claim that his punishment exceeds the terms of a plea bargain when the trial court gives a section 1192.5 admonition and the defendant does not withdraw his plea at sentencing. ([citation]; see § 1192.5 [requiring trial court, upon approving a plea, to inform defendant that its approval is not binding and that defendant may withdraw the plea if the court withdraws its approval before sentencing].)" (People v. Villalobos, supra, 54 Cal.4th at p. 182.)
Assuming Francis is raising a misadvisement claim, the People suggest the court did not err because entry of the protective order was only a collateral consequence of Francis's plea, not a direct consequence. Francis disagrees. We need not decide whether entry of the challenged protective order is a collateral or direct consequence because, even if it is a direct consequence of Francis's plea, Francis forfeited his argument because he did not object at sentencing and on appeal has made no attempt to show he would not have entered his plea if properly advised. (See People v. McClellan, supra, 6 Cal.4th at pp. 376-378, 380-381.)
Turning to whether the plea agreement was violated, we similarly find Francis's argument forfeited. At sentencing, Francis neither objected nor moved to withdraw his plea. Francis suggests there was no forfeiture because the trial court did not orally advise him, pursuant to section 1192.5, the plea could be withdrawn if the court imposed punishment beyond that negotiated. "Absent compliance with the section 1192.5 procedure, the defendant's constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing." (People v. Walker, supra, 54 Cal.3d at p. 1025.) But, Francis signed a written plea form, after reviewing it with his attorney, that advised him of his right to withdraw his plea if the court withdrew its consent to "any sentence limitation agreement." During his plea colloquy, Francis told the trial court he had read the form and understood it. Thus, Francis was adequately advised of his statutory right to withdraw his plea. (See People v. Silva (2016) 247 Cal.App.4th 578, 590, fn. 14 ["section 1192.5 admonitions can be oral or they can be provided in a written plea form . . . in which defendant acknowledges his receipt and understanding"]; People v. Panizzon (1996) 13 Cal.4th 68, 83 ["a court may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment"].)
Despite having received a written admonition, Francis did not object or move to withdraw his plea on the grounds that the challenged protective order breached the plea agreement. When the section 1192.5 admonition is given and the defendant does not ask to withdraw the plea or otherwise object to a sentence purportedly exceeding a plea bargain, he has forfeited the right to complain later. (People v. Walker, supra, 54 Cal.3d at pp. 1025-1026.) Francis forfeited his argument that imposition of the children's protective order violated his plea agreement. B. Statutory Basis
In the Marsden hearing, held between sentencing and entry of the challenged protective order, Francis indicated some desire to withdraw his plea, but for different reasons.
Alternatively, Francis maintains the trial court lacked statutory authority to issue the protective order prohibiting contact with his sons for three years. Specifically, Francis argues the protective order is unauthorized because section 136.2, subdivision (i)(1), allows a protective order to restrain contact only with "the victim," and his sons were not the named victims of the stalking offense. Issues of statutory construction are reviewed de novo. (People v. Delarosarauda (2014) 227 Cal.App.4th 205, 210 (Delarosarauda).) " ' "We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings." ' " (People v. Therman (2015) 236 Cal.App.4th 1276, 1279.)
"Section 136.2, subdivision (a) authorizes a trial court to issue protective orders to protect 'a victim or witness' in a criminal matter. (§ 136.2, subd. (a)(1).) . . . [¶] The courts have construed section 136.2, subdivision (a) to authorize imposition of protective orders only during the pendency of the criminal action. [Citations.] Thus, once the defendant is found guilty and sentenced, the court's authority to issue a protective order under section 136.2, subdivision (a) generally ceases. [Citations.] [¶] However, in 2011, the Legislature responded to this restrictive judicial construction by creating an exception to the preconviction limitation of a section 136.2 restraining order for domestic violence cases. (Stats. 2011, ch. 155, § 1.) Effective January 1, 2012, the Legislature added section 136.2, subdivision (i) to the statutory scheme so that a 10-year postconviction protective order would be permissible when a defendant was convicted of a domestic violence offense. . . . [¶] Thus, section 136.2(i)(1) authorizes a postconviction restraining order (1) when the crime qualifies as a 'domestic violence' crime, and (2) the protected person qualifies as a 'victim.' " (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465-466, italics added & omitted, fns. omitted.) Francis concedes he committed a crime against Doe (stalking) that qualifies as "domestic violence." However, he contends the children do not qualify as "victim[s]" under section 136.2, subdivision
Section 13700, subdivision (b), defines " '[d]omestic violence' " as "abuse committed against . . . a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." " 'Abuse' " is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (§ 13700, subd. (a).)
We disagree with Francis that, on the record before us, the protective order was not authorized by the version of section 136.2, subdivision (i)(1) in effect at the time. Former section 136.2, subdivision (i), provided, in relevant part: "(1) In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, . . . 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. . . . 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 a victim and his or her immediate family." (Stats. 2015, ch. 60, § 1, italics added.) As used in section 136.2, subdivision (i)(1), " '[v]ictim' means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state . . . is being or has been perpetrated or attempted to be perpetrated." (§ 136, subd. (3).)
The People do not assert section 646.9, subdivision (k), authorized the court to include the children as protected persons. They briefly attempt to justify the postconviction protective order on the basis of section 136.2, subdivision (a), but we are unpersuaded. (See People v. Beckemeyer, supra, 238 Cal.App.4th at p. 465 ["courts have construed section 136.2, subdivision (a) to authorize imposition of protective orders only during the pendency of the criminal action" (italics added)].)
Section 136.2, subdivision (i)(1) was amended in 2017 to read: "[T]he court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. . . . 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 a victim and his or her immediate family." (Stats. 2017, ch. 270, § 1, italics added.)
We are not the first to construe this statutory provision. The term "victim," as used in section 136.2, has been held to be broad enough to protect the named victim's immediate family when the family members have themselves been physically or emotionally harmed. (People v. Beckemeyer, supra, 238 Cal.App.4th at pp. 464, 466, 467 [domestic violence victim's son, who was physically assaulted during incident, qualified as a victim]; People v. Clayburg (2012) 211 Cal.App.4th 86, 88, 92 (Clayburg).) In other words, "victim" includes any individual against whom there is "some evidence" from which the trial court could find the defendant committed or attempted to commit some harm. (People v. Race (2017) 18 Cal.App.5th 211, 219; accord, Delarosarauda, supra, 227 Cal.App.4th at p. 212; Clayburg, at p. 88.)
In Clayburg, the Second District Court of Appeal considered a protective order imposed under section 646.9, subdivision (k)(1). (Clayburg, supra, 211 Cal.App.4th at p. 88.) The defendant was convicted of stalking her former husband, who was the primary custodial parent of their minor daughter. At sentencing, the trial court ordered the defendant "not have any contact with [her] daughter for 10 years." (Id. at p. 88.) Similar to former section 136.2, subdivision (i)(1), section 646.9, subdivision (k)(1) provides: "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." (Italics added; accord, Clayburg, at pp. 88-89.)
The daughter in Clayburg testified as a witness to the defendant's stalking. (Clayburg, supra, 211 Cal.App.4th at pp. 89-90.) In particular, the daughter testified that on one occasion she heard her mother pounding a golf club on her father's front porch and demanding custody. The daughter ran to her room in tears. (Id. at p. 89.) On another day, the daughter was scared when she overheard her mother's voicemail for the father, which said, " 'The devil wants you. God is going to let him get you and you are going to like it because you are [the devil's] brother.' " (Ibid.) On another occasion, the daughter was awakened by the sound of shattering glass when the defendant broke three windows in the home where the daughter and father resided. The daughter testified she sometimes stayed elsewhere because these incidents made her " 'feel scared and just nervous.' " (Id. at p. 90.) At all times, the daughter carried a previously issued restraining order that prohibited the defendant from contacting her. (Ibid.)
On appeal, the defendant argued the restraining order was unauthorized because her daughter was not the victim named in the information. (Clayburg, supra, 211 Cal.App.4th at pp. 89, 90.) The reviewing court affirmed "by reading [section 646.9, subdivision (k)(1)'s] two sentences together." (Clayburg, at p. 89; accord, id. at p. 91.) It explained: "Were we to put horse blinders on and read the first sentence in isolation, [the defendant] would prevail. This is the literal reading of the first sentence. To so construe the statute we would subscribe to the 'dictionary school of jurisprudence.' But we do not read the statute 'in a way that yields "a grotesque caricature of the Legislature's purpose." ' " (Id. at p. 91.) Reading the two sentences of the statute in pari materia, the court declared, "it is apparent that the Legislature wants the judiciary to protect the child of a named stalking victim. The statute is 'remedial' and consistent with time-honored precedent, must be liberally construed to effectuate the object and purpose of the statute and to suppress the mischief at which it is directed. [Citation.] To strictly construe the statute and read the first sentence to the exclusion of the second would defeat Legislative intent and defeat justice." (Ibid.) The Clayburg court held that "a member of the immediate family of a stalking victim (§ 646.9, subd. (a)) who suffers emotional harm . . . is a 'victim' for purposes of a postconviction restraining order." (Clayburg, at p. 88, italics added.)
In a dissenting opinion, Justice Perren criticized the majority's construction, arguing it obliterated the Legislature's clear distinction between a "victim" and "his or her immediate family." (Clayburg, supra, 211 Cal.App.4th at pp. 94-95 (dis. opn. of Perren, J.).) Justice Perren reasoned: "The first sentence of subdivision (k) instructs that the court may issue an order 'restraining the defendant from any contact with the victim.' (Italics added.) The second sentence, however, tells us that in determining the length of the restraining order, the court may consider 'the safety of the victim and his or her immediate family.' If 'victim' was meant to include a child of the family, this qualification would be unnecessary." (Clayburg, at p. 94.)
Francis argues Clayburg was wrongly decided and urges us to follow Delarosarauda, supra, 227 Cal.App.4th 205, in which another division of the Second District agreed with the construction advocated by Justice Perren in his Clayburg dissent. (Delarosarauda, at p. 212.) In Delarosarauda, the defendant was convicted of corporal injury to a cohabitant (§ 273.5, subd. (a)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and assault with a deadly weapon (§ 245, subd. (a)(1)). (Delarosarauda, at pp. 207, 208.) At sentencing, the trial court issued a criminal protective order that prohibited the defendant from contact with his cohabitant, son, and stepdaughter for 10 years. (Delarosarauda, at pp. 208-209.) Delarosarauda remanded for modification to delete the children's names from the protective order (id. at pp. 213-214), concluding that former section 136.2, subdivision (i)(1), did not authorize the protective order as to the defendant's son and stepdaughter because they were not " 'victims.' " "[The defendant] was convicted of assaulting [his cohabitant]. On the record before the trial court, there was no reason to believe that any crime was being or had been perpetrated or attempted to be perpetrated against [his son] or [stepdaughter]. [The cohabitant] testified that [the defendant] 'never touched' the children, and no evidence suggests [he] ever attempted to harm them. [The cohabitant] thought the children were in another room at the time of the incident." (Delarosarauda, at p. 211.) Delarosarauda also distinguished Clayburg factually, pointing to evidence in Clayburg that the defendant caused the victim's child to suffer emotional harm while in the case before it no evidence suggested the victim's children "were similarly targeted or harmed." (Delarosarauda, at p. 212.) "[A]bsent evidence from which the trial court could reasonably conclude [the defendant] had harmed or attempted to harm [the cohabitant's children], the court lacked authority to issue the no-contact protective order as to the children under [former] section 136.2, subdivision (i)(1)." (Delarosarauda, at p. 212.)
A few months after Delarosarauda was decided, the Legislature amended provisions relating to preconviction protective orders in section 136.2, subdivision (a)(1), by adding subparagraph (G)(iv)(2): "For purposes of this subdivision, a minor who was not a victim of, but who was physically present at the time of, an act of domestic violence, is a witness and is deemed to have suffered harm within the meaning of paragraph (1)." (Stats. 2014, ch. 673, § 1.3, eff. Jan. 1, 2015.) No change was made to the definition of victim in sections 136 or 136.2, subdivision (i).
Delarosarauda then turned to the similar language found in section 273.5, subdivision (j) and concluded the plain language of that section also makes clear the trial court "lacked authority to issue a protective order as to [the children]. First, [the children] are not victims under section 273.5, subdivision (j). [The cohabitant] confirmed that [the defendant] never used physical force against them [citation]. Second, . . . the second sentence of section 273.5, subdivision (j)—addressing the length of the restraining order—does not modify the term 'victim' in the first sentence or expand it to include the children." (Delarosarauda, supra, 227 Cal.App.4th at p. 213.)
Delarosarauda's holding is of limited assistance in the stalking context. In defining that offense, the Legislature explicitly recognized family members of the direct victim. "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . ." (§ 646.9, subd. (a).) Thus, we agree with the Clayburg court that the Legislature clearly intended to protect a stalking victim's immediate family members.
Francis insists the record is devoid of evidence supporting the trial court's implicit conclusion his sons were victims of a crime. Francis is correct that his sons were not alleged in the complaint or information to be victims of the stalking offense. However, "in considering the issuance of a criminal protective order, a court is not limited to considering the facts underlying the offenses of which the defendant finds himself convicted . . . . Rather, in determining whether to issue a criminal protective order pursuant to section 136.2, a court may consider all competent evidence before it." (People v. Race, supra, 18 Cal.App.5th at p. 220.)
The record before us supports the trial court's implied finding that the children were emotionally harmed by Francis's offense. At least one of the children witnessed at least one of the domestic violence incidents (the Washington boiling water incident) that precipitated and is intertwined with Francis's stalking. Francis's statements at sentencing, as well as the probation officer's presentence report, support an inference that the children were aware of his admitted threats to abduct them and threats to commit suicide in a manner in which they would likely be present. They undoubtedly were also aware of, and emotionally traumatized by, the forced evacuation of their Daly City home necessitated by Francis's actions, as well as by continuing to receive letters from Francis even after his arrest and issuance of the initial no contact order. At sentencing, the court indicated the children were suffering night terrors as a result of Francis's behavior and stated, "[Francis] engaged in some pretty horrific acts of stalking, terrifying both his former wife and his kids."
Substantial evidence supports the trial court's implicit finding that the children were themselves stalking victims or suffered emotional harm as a result of being exposed to Francis's stalking of Doe. C. Termination of Parental Rights
Francis also insists the challenged protective order violates his due process rights and is an unlawful de facto termination of his parental rights. We reject the argument for reasons stated in People v. Race, supra, 18 Cal.App.5th at page 220: "First, defendant was afforded due process in that he was given ample opportunity to argue against the issuance of the protective order. . . . Second, the criminal protective order is not the functional equivalent of an order terminating parental rights. . . . [U]nlike a parent who has had his parental rights terminated, defendant can move the court to rescind the order upon his release from prison. (§ 136.2, subd. (a)(1)(G)(i); Delarosarauda, supra, 227 Cal.App.4th at p. 211.) Moreover, section 136.2 provides mechanisms for cooperation between the criminal, juvenile, and family law courts to permit communication by the subject of the criminal protective order with members of his family if appropriate. (§ 136.2, subds. (e)(3), (f); Delarosarauda, supra, at p. 211.)" (Race, at p. 220.) D. Clerical Error
Francis contends the trial court inadvertently failed to check the box allowing an exception to the "no contact" order for prospectively ordered visitation. By failing to address the argument, the People concede the omission was due to clerical error. The record is clear that the trial court intended to check box 16(b) on the Judicial Council form, but inadvertently failed to do so simply because of clerical error and the delay in entering the order. Accordingly, we will order the children's protective order modified to reflect the trial court's expressed intention. (Cf. People v. Mesa (1975) 14 Cal.3d 466, 471-472 ["[e]ntering the judgment in the minutes being a clerical function ( . . . § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error"]; Cal. Rules of Court, rule 8.155(c)(1) ["reviewing court may order the correction . . . of any part of the record"].
III. DISPOSITION
The matter is remanded with directions to modify the November 18, 2016 protective order (in favor of the children) by checking the box numbered 16(b). The trial court shall forward a copy of the corrected protective order to the appropriate entities. As modified, the order is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.