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C.A. Says Criminal Restraining Orders May Only Cover Victims of Convicted Offenses
Opinion Declines to Find That Defendants, Who Are Found Guilty of Certain Crimes, May Be Ordered to Stay Away From Parties Named in Dismissed Counts
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal held yesterday that a statute providing that a defendant who is convicted of certain delineated offenses may be ordered to stay away from “a victim of the crime” for a period of 10 years does not allow for the protection of additional parties who were named in other counts to which he did not admit and on which a jury did not reach a verdict.
Justice John L. Segal authored the opinion in which the court acknowledged case law allowing for the protection of other parties if competent evidence was presented establishing that the party had been harmed by criminal conduct covered by the section, but said that recent statutory changes replacing reference to “the victim” with “a victim of the crime” undermines the authority of those pre-amendment decisions.
At issue is Penal Code §136.2(i)(1), which, following a legislative amendment adopted in 2018, now provides:
“When a criminal defendant has been convicted of a crime involving domestic violence,…human trafficking,…or a crime that requires the defendant to register [as a sex offender]…, 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.”
Segal wrote:
“[T]he court issued a protective order to protect a…victim, who was named in other counts on which the jury could not reach a verdict. Can the court do that?
“Not anymore….We hold that the language in section 136.2, subdivision (i)(1), authorizing the court to issue a protective order for ‘a victim of the crime’ means a victim of one of the enumerated crimes…the defendant was convicted of committing.”
The question arose after Oscar Pena was charged with committing lewd acts on his then-teenaged sister-in-law, identified in the opinion as “Nathaly R.,” as well as violating Penal Code §243.4(e)(1) by sexually assaulting an adult neighbor by groping her after a party.
In 2023, a jury found him guilty of sexual battery, but did not reach a verdict on the counts involving Nathaly R.
Los Angeles Superior Court Judge Renee Korn declared a mistrial on those charges, and the Los Angeles County District Attorney’s Office declined to retry the offenses.
On March 3, 2023, Korn sentenced Pena to 364 days in county jail, ordered him to register as a sex offender under Penal Code §290, and issued a restraining order under §136.2(i)(1), naming Nathaly R. as a protected party.
Yesterday’s opinion, joined in by Presiding Justice Gonzalo Martinez and Justice Gail Ruderman Feuer, affirms the conviction but reverses and vacates the protective order. The court also decreed that “[t]he trial court is directed to resentence Pena to six months in county jail on his misdemeanor sexual battery conviction,” as the original sentence exceeded the statutory maximum.
Definition of Victim
Segal noted that §136 defines “victim” as “any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated.”
He cited the Fifth District’s decision in People v. Walts, filed in June, which held that a court was not authorized under the section to include the defendant’s ex-wife and other dependents as protected parties following his conviction for abusing one of his children.
Agreeing with the Fifth District’s conclusion that the 2018 amendment limited the reach of the statute, Segal wrote:
“[T]he Legislature’s decision to use the definite article to identify the relevant crime is ‘significant.’…[B]y amending section 136.2(i)(1), to refer to ‘a victim of the crime’ (italics added), the Legislature made clear it intended to include among potentially protected persons only victims of ‘the crime’ identified earlier in that sentence, namely, the ‘crime’ that ‘a criminal defendant has been convicted of….’ ”
Other Decisions
The justice acknowledged that Div. Two of the Fourth District held in 2017, in People v. Racen, that “section 136 defines a ‘victim’ in a broad enough manner…to include a victim of a charged count of which defendant does not stand convicted so long as the court had some competent evidence before it.” However, he remarked:
“Race…was decided before the Legislature amended section 136.2(i)(1) to specify that ‘a victim’ is only a victim ‘of the crime’ the defendant was convicted of committing….In light of that amendment, the trial court no longer has authority to impose a protective order restraining a defendant from contacting the victim of a crime alleged in a count on which the defendant was not convicted.”
Citing other cases in which courts have interpreted the term “victim” broadly to include family members who were emotionally harmed by the crime, the Office of the Attorney General contended that Korn was authorized to issue the order protecting Nathaly R.
Rejecting that assertion, Segal noted that the jurisprudence pre-dated the 2018 amendment and involved circumstances where the named parties were also victimized by the conduct for which the defendant was convicted. Here, he said, “the People cite no evidence Nathaly suffered any emotional or other harm as a result of” the sexual battery of the defendant’s neighbor.
The case is People v. Pena, B331827.
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