Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF109182A
HULL, Acting P. J.Defendant entered a negotiated plea of guilty to child abuse (Pen. Code, § 273a, subd. (a)) and was granted probation on the condition, among others, that he stay away from all members of his family. (Further undesignated section references are to the Penal Code.) Defendant appeals, contending the trial court abused its discretion in imposing the stay-away order. We conclude the stay-away order was not authorized by section 1203.097, the section on which the trial court relied, and strike it. However, we remand to permit the trial court to determine whether and to what extent to impose a stay-away order under section 1203.1. In all other respects, we affirm the judgment.
Facts and Proceedings
In light of defendant’s guilty plea, the facts are taken from the prosecution’s recital of a factual basis for the plea.
On August 9, 2008, defendant was arguing with his wife when his 15-year-old son E.P. intervened. Defendant struck E.P. in the face.
Defendant was charged with assault with a deadly weapon (a guitar) or by means of force likely to produce great bodily injury with respect to E.P. (§ 245, subd. (a)(1)), child abuse or endangerment under conditions likely to cause great bodily injury with respect to E.P. (§ 273a, subd. (a)), criminal threats with respect to defendant’s wife, J.G. (§ 422), and two counts of child abuse or endangerment under conditions not likely to cause great bodily injury with respect to defendant’s other two children, A.P. and M.P. (§ 273a, subd. (b)). He pleaded not guilty on all counts.
On August 22, defendant withdrew his not guilty pleas and entered a negotiated plea of guilty to the single charge of child abuse or endangerment with respect to E.P. On motion of the People, all other charges were dismissed. Imposition of sentence was suspended, and defendant was placed on formal probation for a period of five years on the condition, among others, that he stay away from J.G., stay at least 100 yards away from E.P., A.P. and M.P., and serve 180 days in county jail. Defendant was also ordered to have no personal, electronic, telephonic, or written contact with any of his family or have any contact with them through a third party other than an attorney of record. However, defendant was permitted to have peaceful contact with his family for the safe exchange of children in the event of a future visitation order.
Discussion
Defendant contends the trial court abused its discretion in imposing the stay-away order as a condition of probation. He argues the court could impose such a condition only with respect to the victim, and here the only victim of the crime to which he pleaded guilty was E.P.
The trial court entered the stay-away order pursuant to section 1203.097. It states in relevant 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: [¶]... [¶] (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)(2), italics added.) Defendant argues only E.P. is a “victim” within the meaning of the foregoing provision.
In People v. Selga (2008) 162 Cal.App.4th 113 (Selga), the defendant entered a negotiated plea of guilty to stalking his ex-girlfriend, Christina Reyes, possessing methamphetamine, and disobeying a court order, and was granted probation. As a condition of probation, the court entered a protective order pursuant to section 1203.097 on behalf of both Reyes and her current boyfriend, Julian Huck. Evidence had been presented that the defendant threatened both Reyes and Huck. (Id. at pp. 115-116.)
We concluded the trial court was without authority to enter a protective order under section 1203.097 as to Huck. By its express terms, section 1203.097 is limited to “victims” who fall within the terms of section 6211 of the Family Code, which encompasses “cohabitants and spouses, as well as former cohabitants and spouses, those who have or have had a dating or engagement relationship, one with whom the defendant has had a child, the child of a defendant, or any other person related by consanguinity or affinity within the second degree.” (Selga, supra, 162 Cal.App.4th at p. 119.) Although Huck may have been a “victim” within the meaning of section 1203.097, he did not fall within the terms of Family Code section 6211.
The People contend the other members of defendant’s family clearly fall within the terms of Family Code section 6211, and section 1203.097 authorizes protective orders for both direct and indirect victims. According to the People, defendant “struck his 15-year-old son in the face as his other two children stood by and watched because his son intervened in an argument between him and his wife.”
However, assuming the People are correct about indirect victims, they overstate the record in this matter. At the change of plea hearing, the prosecution recited the following factual basis for defendant’s plea: “August 9, 2008, City of Stockton, San Joaquin County, the defendant got in an argument with his wife and 15-year-old [E.P.]... intervened. The defendant struck [E.P.] in the face. [E.P.] received bruising and swelling to his face.” Although defendant’s wife appears to have been present at the time of the altercation, there is no mention of the whereabouts of defendant’s other two children.
The People alternatively contend the stay-away order is authorized by section 1203.1. That section permits the trial court to grant probation for up to five years “upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a).) The People argue a stay-away order covering all members of defendant’s family “is directly related to the crime [defendant] was convicted of and to potential future criminality.” According to the People, defendant “has demonstrated a propensity for violence towards his family,” such that a protective order limited to defendant’s family is not arbitrary or unreasonable but rather “is appropriate for his family’s safety.”
In Selga, we noted the trial court “enjoys wide discretion under section 1203.1 to impose a stay-away order as a condition of probation.” (Selga, supra, 162 Cal.App.4th at p. 118.) However, because the record in Selga demonstrated the trial court relied on section 1203.097 rather than section 1203.1 (id. at p. 119), we struck the protective order and remanded the case to permit the court to reconsider the issue under section 1203.1. (Id. at p. 121.)
The same situation is presented here. The trial court entered its protective order pursuant to section 1203.097. However, there is nothing in the record to support a finding that defendant’s other two children were “victims” of the offense to which defendant pleaded guilty. Therefore, the matter must be remanded to permit the trial court an opportunity to reconsider the issue under section 1203.1.
Disposition
The stay-away order is stricken as to J.G., A.P., and M.P. The matter is remanded to the trial court to determine whether to impose a stay-away order as to those family members as a condition of probation under Penal Code section 1203.1. In all other respects, the judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.