Opinion
G062134
07-01-2024
THE PEOPLE, Plaintiff and Respondent, v. SHAHID SEAN SALEEM, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher Beesley and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 19WF1585 Lance P. Jensen, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher Beesley and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Shahid Sean Saleem appeals from an order denying his request to terminate a postjudgment criminal protective order issued to protect his aunt and uncle. He contends the criminal protective order, which has a box checked to indicate it was issued under Penal Code section 136.2, subdivision (i)(1), is invalid because he was not convicted of any crime involving domestic violence. Although the protective order was not authorized by the statute checked on the form, it was authorized by section 368, subdivision (l) because Saleem was convicted of elder and dependent adult abuse. We therefore affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Saleem was charged by amended information with two counts of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1); counts 1 &2), one count of elder and dependent adult abuse under circumstances and conditions likely to produce great bodily harm and death (§ 368, subd. (b)(1); count 3), one count of making a criminal threat (§ 422, subd. (a); count 4), and two counts of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4); counts 5 &6). The victim alleged in counts 1, 3, and 4 is Saleem's uncle and the victim alleged in count 2 is Saleem's aunt.
In October 2021, Saleem pleaded guilty to counts 3 through 6. The prosecution dismissed counts 1 and 2. Saleem offered the following as the factual basis for his plea: "In Orange County, California, on 6/16/19, I did willfully and unlawfully commit assaults against [my uncle] and [my aunt] by means of force likely to produce great bodily injury. I also willfully caused mental and physical suffering on [my uncle] under circumstances likely to produce great bodily injury and he was over [the] age [of] 65. I also threatened to kill [my uncle], with intent to be taken as a threat, the threat was immediate and specific, causing [my uncle] to be in reasonable and sustained fear for his safety and the safety of his immediate family."
Pursuant to the negotiated plea, the trial court suspended imposition of sentence and placed Saleem on two years of formal probation on various terms and conditions. One such term and condition was compliance with the criminal protective order filed on October 29, 2021. The criminal protective order barred Saleem from having contact with, coming within 100 yards of, harassing, striking, threatening, or assaulting the victims. The criminal protective order was issued on a Judicial Council form with a box checked to indicate the order was made under section 136.2, subdivision (i)(1). The order will expire on October 29, 2024.
The trial court conducted a proof of completion hearing on October 28, 2022. The court deemed Saleem to have completed his mental health program, ordered that probation be deemed to be completed as to counts 3, 4, and 6, and dismissed counts 5 and 6 in the furtherance of justice. Saleem asked the court to terminate the criminal protective order. The prosecution opposed terminating the order. The trial court denied the request to terminate the criminal protective order without prejudice.
DISCUSSION
On the criminal protective order, the box is checked to indicate the order was issued under section 136.2, subdivision (i)(1). As Saleem argues, section 136.2, subdivision (i)(1) authorizes the issuance of an order restraining a defendant, convicted of a crime of domestic violence, as defined in section 13700 or Family Code section 6211, from contact with the victim. Saleem was not convicted of a crime involving domestic violence. (See § 13700, subd. (b).) The victims here were Saleem's aunt and uncle.
Family Code section 6211 defines "domestic violence" to include abuse committed against anyone related to the perpetrator "by consanguinity or affinity within the second degree." (Id., subd. (f).) A nephew is related in the third degree of consanguinity or affinity to an uncle or aunt. (People v. Williams (1997) 16 Cal.4th 635, 653.)
But the criminal protective order is not invalid simply because the wrong box was checked. The propriety of a protective order is determined by the authorizing statute, not the format or content of the Judicial Council form used. (People v. Stone (2004) 123 Cal.App.4th 153, 158.) The trial court issued the protective order using Judicial Council form No. CR-161, entitled, "CRIMINAL PROTECTIVE ORDER- OTHER THAN DOMESTIC VIOLENCE." The title of the order thus apprised Saleem of the nature of the order being issued and that the order was not for a domestic violence conviction. A postjudgment criminal protective order was authorized in this case by section 368, subdivision (l) (orders to protect victims of elder abuse) because Saleem was convicted of one count of elder abuse in violation of section 368, subdivision (b)(1).
The first two sentences of section 368, subdivision (l) read: "Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which 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."
The Attorney General argues the criminal protective order properly extends to protect both Saleem's uncle and aunt even though only Saleem's uncle was named as a victim in the elder abuse count. Saleem does not contend his aunt should not have been named as a protected person: He argues only that the criminal protective order is invalid because it was issued pursuant to section 136.2, subdivision (i)(1). In any case, the trial court correctly included Saleem's aunt as a protected party because she is an "immediate family" member of the named victim of the elder abuse count. (§ 368, subd. (l); see People v. Clayburg (2012) 211 Cal.App.4th 86, 91-92.) The trial court could correctly find too that naming Saleem's aunt as a protected person was necessary for her protection because, as part of the factual basis for his guilty plea, Saleem stated he "did willfully and unlawfully commit assaults against [my uncle] and [my aunt] by means of force likely to produce great bodily injury."
DISPOSITION
The order denying Saleem's request to terminate the criminal protective order is affirmed.
WE CONCUR: GOETHALS, ACTING P. J., DELANEY, J.