People v. Sanchez CA4/2 ( 2013 )

Filed 11/26/13 P. v. Sanchez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056919
v. (Super.Ct.No. SWF1202970)
ANTHONY EDWARD SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.
Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.
Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Anthony Edward Sanchez is serving four years in prison after pleading
guilty to inflicting corporal injury on the mother of his children. He challenges the trial
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court’s order that he “have peaceful contact with [his children] only for the safe exchange
of children for visitation as stated in a family, juvenile, or probate court order issued after
the date that this order is signed, as an exception to any no-contact or stay-away order.”
This order was made at the suggestion of defense counsel to alter the standard language
in a form CR-160 domestic violence criminal protective order. As discussed below,
although neither the court nor the parties were aware that the Family Court had already
issued a civil restraining order protecting defendant’s children and their mother, there is
no need for a remand. This is because the criminal protective order, although it refers to
future orders rather than existing orders, accurately reflects the trial court’s intent to leave
any contact and visitation decisions up to the Family Court.
FACTS AND PROCEDURE
On July 4, 2012, defendant inflicted a corporal injury resulting in a traumatic
condition on the mother of his two children.1
On July 31, 2012, the People filed a felony complaint charging defendant with
inflicting corporal injury resulting in a traumatic condition in violation of Penal Code,
section 273.5, subdivision (a).2 The People also alleged that defendant had four prison
priors (§ 667.5, subd. (b)).
1 These are all the facts available in the record on appeal. Defendant pled guilty
before a preliminary hearing and waived preparation of a probation report. There is no
police report in the record.
2 All section references are to the Penal Code unless otherwise indicated.
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After defendant was arraigned on the complaint, the superior court issued a
domestic violence criminal protective order pursuant to section 136.2. The court ordered
defendant to have no contact with the victim or with his two children. The order stated
that any more-restrictive protective order issued in Family Law or by the Juvenile Court
would take precedence.
On August 10, 2012, defendant plead guilty to the corporal injury charge in
exchange for dismissal of the prison priors. Defendant waived the probation report and
requested immediate sentencing. The court sentenced defendant to the four-year sentence
to which the parties had agreed.
Also at this August 10, 2012 hearing, the court terminated its prior criminal
protective order and proposed to sign a post-conviction domestic violence criminal
protective order pursuant to section 273.5, subdivision (i).3 The parties and the court
entered into a lively discussion as to the terms of the new protective order. Defense
counsel asked that defendant be allowed contact with his two children and argued that
section 273.5, subdivision (i) applies only to the actual victims of the crime, which here
did not include defendant’s children. The People asked that the children be included in
3 “Upon conviction under subdivision (a), 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. This protective order may be issued by the court whether the
defendant is sentenced to state prison, county jail, or if imposition of sentence is
suspended and the defendant is placed on probation.” (§ 273.5, subd. (i).)
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the new protective order because they had been included in the previous order. The
People argued that one of the children was present during the crime and that the victim
had asked that child to call for help. Defense counsel suggested that the standard form
for criminal protective orders in domestic violence cases, the CR-160, included boxes to
check that allowed for communication to occur where there was a family law visitation
order. Defense counsel proposed the trial court check box number 144 and that any
visitation would have to be by separate family law order. The People again asked that the
two children be included in the protective order. After this discussion the court proposed
the following to the parties: that only the children’s mother be listed in the order as a
protected person, and that box 14 be checked but modified to include the children’s
names in place of the phrase “the protected persons named above.” Neither party
objected, and the hearing ended.
It appears that neither the parties nor the trial court were aware that the Family
Court in Hemet had on July 26, 2012, in case number HED017919, issued a five-year
civil restraining order after hearing. The Family Court used Judicial Council form DV-
130 to grant the children’s mother sole legal and physical custody, name the children and
their mother as protected persons whom defendant could not contact, and order no
visitation between defendant and his children until the parties attended child custody
4 Box 14 on the form reads as follows: “may have peaceful contact with the
protected persons named above only for the safe exchange of children for visitation as
stated in a Family, Juvenile, or Probate court order issued after the date this order is
signed, as an exception to the “no-contact” or “stay-away” provision in paragraphs 10,
11, or 12 of this order.”
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reconciliation counseling. This Court hereby takes judicial notice of this order, pursuant
to defendant’s Request for Judicial Notice filed with this Court on January 14, 2013.
This appeal followed.
DISCUSSION
Defendant asks this court to remand to the trial court with instructions to revise the
criminal protective order to allow defendant to have ongoing contact with his children
while he is incarcerated. He bases this request on three legal arguments, which we will
address in turn.
First, defendant argues the trial court abused its discretion when it fashioned this
criminal protective order because it inadvertently re-imposed the restriction on contact
between defendant and his children that the court had sought to eliminate. Our reading of
the sentencing hearing transcript shows that the trial court did not intend to eliminate
restrictions on contact between defendant and his children. To the contrary, the trial
court was quite clear that it intended for the family law courts to determine what contact
was to be allowed. It set forth its intent behind checking box 14 and amending its
language as follows: “And then it goes on to state this will be pursuant to, in this
situation, any family court order issued after this date. [¶] So my guess is there will have
to be some family court proceeding, and that they would have to decide through
proceedings in front of them what, if any, visitation should be, and he has to comply with
that. So that’s what I’ll do.” It is apparent to us that, had the court been aware of the
prior civil protective order, it would have checked box number 13, which allows contact
according to existing “Family, Juvenile, or Probate court” orders, rather than box number
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14, which is identical except that it refers to such orders “issued after the date this order is
signed.”
Thus, the trial court did not abuse its discretion because it accomplished what it
sought to accomplish—to allow the Family Court to decide whether defendant could have
contact with his children.
Second, defendant contends a remand to correct the criminal protective order to
conform with the trial court’s intent to allow contact between defendant and his children
would be consistent with public policy. This argument is moot because we have already
determined that the trial court intended to leave this decision to the Family Court.
Third, defendant argues remand is necessary to correct the conflict between the
criminal protective order and the prior civil restraining order, which is still in effect. As
the People point out, the criminal protective order is actually less restrictive than the prior
civil restraining order because it does not list the children as protected persons and it
permits future peaceful contact for visitation purposes if so ordered by another court.
Thus, there is no need for a remand.
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DISPOSITION
The trial court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
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