People v. Hanson CA2/6 ( 2014 )

Filed 9/2/14 P. v. Hanson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B249297
(Super. Ct. No. F478245)
Plaintiff and Respondent, (San Luis Obispo County)
v.
RANDY ALLAN HANSON,
Defendant and Appellant.
Randy Allan Hanson appeals a three-year "criminal protective order" issued
as a condition of probation after his conviction of assault (Pen. Code, § 240),1 a
misdemeanor, and battery with serious bodily injury, a felony (§ 243, subd. (d)). We
conclude, among other things, that the trial court did not err by imposing a stay-away
condition of probation and issuing a separate criminal protective order. We affirm.
FACTS
On the evening of August 3, 2012, James Kelsey was a passenger in a
limousine which transported him and others to "Harry's Bar." Kelsey went into the bar.
He later left and walked back to the limousine. The driver opened the limousine door to
let Kelsey in. Hanson was inside "slouching." Kelsey "tapped him on the shoulder" and
asked Hanson, "'[H]ey, can you move over so we can all get in?'" Kelsey testified, "[T]he
1
All statutory references are to the Penal Code.
next thing I knew I felt an impact . . . ." Hanson hit him with a beer bottle on the nose.
Kelsey was bleeding and he felt pain between his eyes.
Hanson testified Kelsey approached him in the bar and said, "So you are the
Raiders coach that got his ass kicked by Tom Cable." Hanson responded, "Well, it really
didn't happen that way and Cable is a fucking pussy." Hanson left the bar and went to the
limousine. He was afraid because Kelsey was angry and dangerous. Hanson locked the
door. Kelsey went to the limousine, began "banging on the limo" and told Hanson, "'I am
Tom Cable's cousin, and I am going to kick your ass.'" He struck Kelsey with the bottle
because he "was trying to get away" from Kelsey. He did not want to hurt him.
The jury found Hanson 1) "not guilty of the crime of Assault with a Deadly
Weapon," but "guilty of the lesser included offense of Assault Upon a Person," and 2)
guilty of battery with serious bodily injury. It found not true the allegation that Hanson
committed great bodily injury.
At the sentencing hearing, the trial court suspended imposition of sentence
and placed Hanson on formal probation for three years. As a probation condition,
Hanson was "not [to] have any direct or indirect contact with James Kelsey." The court
also issued a three-year criminal protective order prohibiting Hanson from contacting
Kelsey. At the sentencing hearing, the court said that if Hanson violated the order, he
could face "additional criminal charges."
DISCUSSION
The Protective Order
Hanson challenges the validity of the criminal protective order. The People
contend he forfeited this issue because he did not raise it in the trial court. We agree.
(People v. Welch (1993) 5 Cal. 4th 228, 234-237.) But even on the merits, the result is the
same.
Trial courts have "broad discretion" under section 1203.1 to impose
probation conditions that protect crime victims by ordering defendants to stay away from
them. (People v. Selga (2008) 162 Cal. App. 4th 113, 120.)
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Hanson does not contest the probation condition that he stays away from
Kelsey. He claims, however, the trial court lacked authority to also issue the criminal
protective order. We disagree.
This contention was rejected in People v. Petty (2013) 213 Cal. App. 4th
1410, 1424. There the Court of Appeal said a trial court's "use of a stay-away order, in
addition to a no-contact condition of probation, was lawful." (Ibid.) It rejected the claim
that this was unnecessary duplication. The court said, "Whatever duplication exists
provides no reason to strike the order. The stay-away order makes more concrete the no-
contact and no-harassment conditions of probation and sets up an additional incentive for
defendant to avoid future criminal violation of those conditions." (Ibid.)
Hanson contends the protective order was not a probation condition. He
notes the court checked a box on the order indicating it was issued under section 136.2.
He claims under People v. Selga, supra, 162 Cal. App. 4th 113, the order is void because
this statutory provision does not involve probation conditions.
But Selga is distinguishable. There a trial court issued a criminal protective
order under section 136.2 with the expectation that the order would remain in effect after
the completion of the criminal proceedings. The Court of Appeal struck the order. It
said, "[T]he only purpose of orders under section 136.2 'is to protect victims and
witnesses in connection with the criminal proceeding . . . .'" (People v. Selga, supra, 162
Cal.App.4th at p. 118.) Consequently, "the protective orders issued under section 136.2
were operative only during the pendency of the criminal proceedings and as prejudgment
orders." (Id. at pp. 118-119.) The court therefore remanded the case to the trial court "to
exercise its discretion on whether to impose a similar stay-away order as a condition of
probation under Penal Code section 1203.1." (Id. at p. 121.)
Here, unlike Selga, the trial court issued the order as a probation condition.
The box the court checked on the order indicates that the protective order is a "probation
condition order." The Judicial Council form contains a mistake. It has a pre-printed
reference to section 136.2 near that box. There should have been a reference to section
1203.1. But this does not change the nature of the order as a probation condition.
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Hanson claims the trial court's remark about "additional criminal charges"
suggests that, in addition to what he would receive for violating probation, he would also
be subject to separate contempt charges for violating the protective order. But that is not
the case.
"'[A]n adult whose probation is revoked cannot be subjected to any greater
punishment than would be allowed for the underlying offense.'" (People v. Johnson
(1993) 20 Cal. App. 4th 106, 111.) "The ramifications of a violation of a condition of
probation are . . . that probation may be revoked. Following revocation of probation, a
defendant is to receive no greater sentence than that he could have received at the time
probation was granted, and the length of a sentence shall be based on circumstances as
they existed at the time probation was granted." (Id. at p. 112.) "'Contempt of court
should not be superimposed as an additional remedy in a probation violation
setting . . . .'" (Ibid.)
The trial court's remark was an attempt to discourage Hanson from
violating the no contact condition. The choice of words may have been poor, but the
result does not change because the protective order was properly issued. Kelsey was the
victim of a violent assault. The condition and order were directly related to Hanson's
offense and were intended to deter future criminality. There was no error.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn
McGahey Webb, Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
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