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Court of Appeal:
Stalking Restraining Order May Cover Threatened Parent
Opinion Says No Error in Naming Victim’s Father as Protected Party, Even Though Defendant Found Not Guilty of Terrorizing Him, Where Court Heard Some Evidence to Support Decree
By a MetNews Staff Writer
Div. Eight of this district’s Court of Appeal held yesterday that a trial court judge did not err in including the father of a stalking victim as a protected person in a postconviction restraining order, issued based on a Penal Code section authorizing decrees prohibiting a convict from having “any contact with the victim,” even though the jury found the defendant not guilty of charges accusing him of threatening the named parent.
At issue is Penal Code §646.9(k), which provides:
“The sentencing court…shall consider issuing an order restraining the defendant from any contact with the victim, that 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 dispute arose after Brandon Horton was convicted of stalking and making criminal threats to a former high school classmate, identified as “Seiko H.” He was cleared by the jury of charges relating to statements he purportedly made to the victim on Instagram about her father, including one allegedly saying that the defendant intended to shoot him in the head.
Stalking Sentence
Los Angeles Superior Court Judge Renee Korn sentenced Horton to five years and eight months in prison, which amounted to time served once his custody credits were calculated. Korn also issued a 10-year restraining order under §646.9(k), requiring the defendant to stay away from both Seiko H. and her father, referred to in the opinion as “John H.”
On appeal, Horton challenges the portion of the restraining order that protects John H., saying it exceeds the authority granted by §646.9(k).
In an opinion authored by Justice Victor Viramontes, and joined in by Acting Presiding Justice Elizabeth A. Grimes and Justice John Shepard Wiley Jr., the court found that the statute allows for a court to issue an order protecting non-named victims upon proof that the defendant committed or attempted to commit some harm against them.
Rejecting the contention that the defendant’s acquittal of charges relating to John H. foreclosed the ability to issue the decree, Viramontes acknowledged that the “jury necessarily found that the People failed to meet their burden of proving beyond a reasonable doubt that Horton committed the charged offense.”
However, he pointed out that Korn was not obligated to apply that same high burden of proof when deciding whether the restraining order was appropriate.
Named Victim
Horton argued on appeal that this district’s 2014 decision in People v. Delarosarauda stands for the proposition that postconviction restraining orders are limited to restraining the defendant from contact with the named victim. In that case, the court modified a protective order, issued under a similarly worded statute governing domestic violence cases, to remove the accused’s children, who were not part of the criminal action.
Disagreeing with Horton’s interpretation, Viramontes pointed out that the court in Delarosarauda said that “a postconviction protective order is limited to restraining the defendant from contact with a ‘victim,’ that is, a ‘natural person with respect to whom there is reason to believe that any crime…is being or has been perpetrated or attempted to be perpetrated.’ ”
Applying this standard to §646.9(k), Viramontes opined:
“[T]he fact that Horton did not stand convicted of a specific offense against John did not preclude the trial court from issuing a protective order that named John as a protected person. Rather, the trial court was authorized to include John in the protective order so long as there was [evidence] ‘from which the court could find [Horton] had committed or attempted to commit some harm’ against him….
“Here, the evidence was sufficient to support a finding that Horton committed or attempted to commit some harm against [the victim’s father] when he stalked Seiko.”
The case is People v. Horton, B337373.
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