Opinion
A157321
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. RICARDO RAFAEL MORALES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR951393)
In the presence of his two children, Ricardo Rafael Morales battered his wife and broke her cell phone. The trial court issued a protective order prohibiting Morales from contacting them (Pen. Code, § 136.2) and a jury convicted him of battery of a spouse (§ 243, subd. (e)(1)), and dissuading a witness (§ 136.1, subd. (b)(1)). The court sentenced Morales to county jail and continued the protective order. (§ 136.2, subd. (i)(1).)
Undesignated statutory references are to the Penal Code.
Morales appeals, claiming the protective order must be reversed because there is insufficient evidence the children were "victims" within the meaning of section 136.2. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, Morales and E.M. were getting divorced. They had two children: an 11-year-old son and a 10-year-old daughter (collectively, children).
A.
The prosecution charged Morales with inflicting corporal injury on his wife (§ 273.5, subd. (a)), a felony, and the court issued a protective order prohibiting Morales from contacting her (§ 136.2, subd. (a)).
At the preliminary hearing, E.M. testified she and Morales got into a physical altercation in front of the children over a set of car keys. Morales pinned E.M. down, pulled the keys from her pocket, pushed her out of the car, and twisted her finger in the process. He swore at daughter and "mistreat[ed] her verbally." When E.M. threatened to call the police, Morales broke her cell phone and drove away with the children.
At the conclusion of the preliminary hearing, the court held Morales to answer the charge of inflicting corporal injury on E.M. (§ 273.5, subd. (a)) and attempting to dissuade E.M. from reporting the incident to law enforcement (§ 136.1, subd. (b)(1)).
B.
Later, the court expanded the protective order to include the children but permitted Morales to have "peaceful contact" with them pursuant to a family or juvenile court order. Morales moved to modify the protective order to name only E.M. At a hearing on the motion, E.M. described the July 2018 incident. She also testified that before the preliminary hearing, Morales smashed the windows and headlights of one of the family cars with a baseball bat while son watched. Morales "totaled the car." The court considered this testimony, and the preliminary hearing transcript, and declined to modify the protective order.
C.
The operative information charged Morales with two misdemeanors: battery upon a spouse (§ 243, subd. (e)(1)) and attempting to dissuade a victim and witness of a crime from reporting the incident to law enforcement (§ 136.1, subd. (b)(1)).
At trial, E.M. testified her marriage to Morales was ending. In July 2018, she moved out of the family house with daughter. Son stayed with Morales. Later that afternoon, E.M. and daughter drove the family's Dodge Journey—their only working car—back to the house to give Morales a ride to work. Morales, however, demanded the car keys. When E.M. refused to relinquish them, Morales pushed E.M. to the ground and grabbed the keys out of her pocket. Then Morales told daughter, " 'Little bitch, get out of the car.' "
At that point, son was near the front door of the house. Crying, daughter got out of the Dodge and began to walk toward the house. Morales forbade daughter from going inside; he said: " 'You decided to go to your mom's, so now you stay outside of my house.' " Daughter stood on the front porch. Morales told son to "get out of the house and get in the car." Son complied. Morales got in the Dodge and started to drive away, but then saw daughter start to enter the house. Furious, Morales stopped the car. "[L]ooking aggressive" and "screaming," Morales got out of the Dodge and went toward the house to stop daughter from going inside.
E.M. got between daughter and Morales and said she was calling 911. Morales took the phone, broke it in half, and told E.M. she was " 'not calling anyone.' " Then he ordered daughter to get in the car. Daughter obeyed. E.M. went up to Morales and raised her hand at him; in response, Morales twisted E.M.'s finger, and she fell to the ground, screaming. Neighbors saw what happened and told Morales "to stop, that he was hurting [E.M.]." At that point, E.M. got back in the car and tried to drive away, but Morales pushed her out of the car again. Then he "took off with the kids."
With the neighbors' help, E.M. called the police and bandaged her finger. E.M. had bruises on her finger, arms, and shoulder. Son told the police he did not see what happened between his parents.
A jury convicted Morales of both charges. The court sentenced Morales to county jail. At sentencing, Morales sought to modify the protective order, arguing "the need for a protective order" for the children was "attenuated." The court declined the request and continued the protective order until November 2021 (§ 136.2, subd. (i)(1)).
DISCUSSION
Morales contends the protective order imposed at sentencing must be reversed because there is insufficient evidence the children were "victims" under section 136.2, subdivision (i)(1). He is wrong.
Morales states the orders extending the protective order to the children and declining to modify the protective order were erroneous, but he does not support the assertion with reasoned analysis or citations to authority. The point is forfeited. (Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 504, fn. 7.)
As relevant here, the statute authorizes a postconviction protective order where "the crime qualifies as a 'domestic violence' crime" and "the protected person qualifies as a 'victim.' " (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466.) Victim is defined as any "person with respect to whom there is reason to believe that any crime . . . is being or has been perpetrated or attempted to be perpetrated." (§ 136, subd. (3).) As Morales acknowledges, a protective order issued pursuant to section 136.2, subdivision (i)(1) may protect a person who is not the "named 'victim' of the charged offense(s)." (See Beckemeyer, at pp. 464, 466-467 [domestic violence victim's son, who was physically assaulted during the charged incident, qualified as a "victim"].)
In this context, "victim" is broadly construed "to include any individual against whom there is 'some evidence' from which the court could find the defendant had committed or attempted to commit some harm within the household." (People v. Race (2017) 18 Cal.App.5th 211, 219.) 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." (Id. at p. 220.) Evidence of domestic violence committed in the presence of a child may establish the child has been harmed. (Id. at pp. 216, 220; People v. Clayburg (2012) 211 Cal.App.4th 86, 88 [order issued pursuant to similar statute barred contact with named victim's daughter, who witnessed defendant's verbal attacks and vandalism and was emotionally harmed].)
Morales claims the postconviction protective order must be reversed because there is "no evidence" he "tried to harm or actually harmed" the children. We disagree. Daughter was present while Morales physically attacked E.M., and she was not unharmed: Morales verbally mistreated daughter, calling her a " 'little bitch,' " and forbidding her from entering the house to punish her from choosing to live with E.M. Seeing that Morales was "aggressive" and "screaming," E.M. positioned her body between Morales and daughter, to protect her. Daughter cried. Son was present when Morales threw his mother to the ground and twisted her finger; he also saw Morales smash the windows and headlights of one of the family cars with a baseball bat. Thus, there is "some evidence" from which a court could conclude Morales committed or attempted to commit harm against the children. (People v. Race, supra, 18 Cal.App.5th at p. 219.)
Morales seems to suggest the protective order cannot be upheld because a witness did not testify to the emotional or psychological harm suffered by the children. We are not persuaded. It is beyond dispute domestic violence is detrimental to children. (In re T.V. (2013) 217 Cal.App.4th 126, 134.) "Domestic violence [affects] children even if they are not the ones being physically abused, 'because they see and hear the violence and the screaming.' " (Ibid.) The Legislature has found and declared "[c]hildren, even when they are not physically assaulted, very often suffer deep and lasting emotional effects" of domestic violence. (Welf. & Inst. Code, § 18290.) On this record, we have no difficulty concluding the protective order is supported by sufficient evidence the children were emotionally harmed by Morales's domestic violence toward E.M.
Morales's reliance on People v. Delarosarouda (2014) 227 Cal.App.4th 205 is unavailing. In that case, the victim testified the defendant " 'never touched' " the children and that they were in another room at the time of the domestic violence. (Id. at p. 211.) Delarosarouda vacated the postconviction protective order as to the children because there was no "evidence from which the trial court could reasonably conclude [the defendant] had harmed or attempted to harm [the children]." (Id. at p. 212.) Unlike Delarosarouda, the trial court could reasonably conclude Morales harmed or attempted to harm the children, who were present during the domestic violence.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Burns, J.