Opinion
D072600
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO C. RAMOS, Defendant and Appellant.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD270746) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Roberto C. Ramos pleaded guilty to one count of dissuading a witness (Pen. Code, § 136.1, subd. (a)(1)) and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). Ramos also admitted he personally inflicted great bodily injury on a victim (§ 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise specified. --------
Ramos was sentenced to a term of four years eight months in state prison. The court also issued a 10-year protective order as to all three victims pursuant to section 136.2, subdivision (i)(1).
Ramos appeals challenging only the issuance of the postjudgment protective order. Ramos acknowledges he did not object to the order in the trial court but contends the trial court did not have jurisdiction to issue the order. We will find the crimes committed in this case involved domestic violence within the meaning of section 136.2, subdivision (i)(1), thus the trial court had jurisdiction to issue the protective order. Accordingly, we will affirm the judgment and order.
STATEMENT OF FACTS
This appeal is from a conviction following a guilty plea. Accordingly, we take the facts of the offenses from the probation report and the statements of witnesses at the sentencing hearing.
Ramos went to a house where his girlfriend, Danielle A., was visiting her friend, Ariel T., and Ariel T.'s mother Suzanne T. Ramos assaulted Ariel T. and Danielle A. with a golf club and a taser. Suzanne T. was present and witnessed the assault.
DISCUSSION
Ramos contends the trial court lacked jurisdiction to issue a postjudgment protective order. Ramos did not object to the order and did not challenge the factual basis for such order. Rather, Ramos argues that section 136.2 only authorizes trial judges in criminal cases to issue protective orders during the pendency of the criminal case. However, subdivision (i)(1) authorizes the issuance of such postjudgment orders in cases where the defendant has been convicted of crimes involving acts of domestic violence. The subdivision provides in part:
"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 a victim of the crime. The order may be valid for up to 10 years, as determined by the court."
In People v. Beckemeyer (2015) 238 Cal.App.4th 461, 463-464, 467, this court addressed the interpretation of section 136.2, subd. (i)(1). We discussed the distinction between the general power to issue protective orders during the pendency of a criminal case and the power to issue postjudgment orders in cases where the defendant has been convicted of a crime involving domestic violence. The court in Beckemeyer said, in part:
"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. [Citation.] 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. Section 136.2, [subdivision] (i)(1) states: 'In all cases in which a criminal defendant has been convicted of a crime involving 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.'
"Thus, section 136.2, [subdivision] (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.' The code defining 'domestic violence' referenced in section 136.2, [subdivision] (i)(1) states domestic violence includes abuse committed against a person with whom the defendant has had a dating relationship. [Citation.] Because defendant was dating Majka, he committed a crime that qualifies as a 'domestic violence' crime, and he does not dispute that Majka qualifies as a 'victim' for purposes of a section 136.2, [subdivision] (i)(1) protective order. However, he contends that Majka's son, Jakubiak, does not qualify as a 'victim' within the meaning of section 136.2, [subdivision] (i)(1) because Jakubiak was not in a statutorily defined domestic relationship with defendant." (Beckemeyer, supra, at pp. 465-466; italics omitted.)
Ramos did not object to the protective order, however his challenge to the order is on the ground the court lacked jurisdiction. That issue is not forfeited as the order would be unauthorized if Ramos's position was correct. (People v. Ponce (2009) 173 Cal.App.4th 378, 381-382.) Although the issue of jurisdiction was not forfeited, Ramos did not challenge the factual material upon which the order is based.
During her statement to the court at sentencing, Danielle A. told the court she had been in a domestic relationship with Ramos for more than four years. Thus, the attack on her and the other two women involved acts of domestic violence. Indeed, Ramos's statements to the probation officer make clear Ramos was motivated to attack the women because of the betrayal of his domestic relationship with Danielle A.
As we pointed out in Beckemeyer, supra, 238 Cal.App.4th at pages 465 to 466, the trial court does have jurisdiction to issue a postjudgment protective order where the defendant is convicted of crimes "involving domestic violence." The unchallenged record in this case is that the attack by Ramos on his girlfriend and her two friends plainly involved acts of domestic violence. Accordingly, the trial court's criminal protective order was properly issued under section 136.2, subdivision (i)(1). There was no error.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.