People v. McElvany CA5 ( 2014 )

Filed 10/16/14 P. v. McElvany CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F067929
Plaintiff and Respondent,
(Super. Ct. No. F13904559)
v.
MARK DAVID MCELVANY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren
K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Gomes, J. and Franson, J.
Defendant Mark David McElvany was convicted by guilty plea of making
criminal threats (Pen. Code, § 422).1 He admitted a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and the trial court sentenced him to 32 months in
prison. At sentencing, the prosecutor requested that the trial court issue a criminal
protective order preventing contact with the victim, in addition to a civil protective order
that was already in place. The court agreed and issued a three-year criminal protective
order under section 136.2. On appeal, defendant contends the criminal protective order
must be stricken. The People concede and we agree.
DISCUSSION
“Under section 136.2 …, during the pendency of a criminal proceeding when the
court has a ‘good cause belief that harm to, or intimidation or dissuasion of, a victim or
witness has occurred or is reasonably likely to occur,’ the court is authorized to issue a
restraining order. However, section 136.2 is limited ‘to the pendency of [a] criminal
action’ because section 136.2 ‘is aimed at protecting only “victim[s] or witness[es].”’
(People v. Stone (2004) 123 Cal.App.4th 153, 159 (Stone).)” (People v. Selga (2008) 162
Cal.App.4th 113, 118.)
“Because the only purpose of orders under section 136.2 ‘is to protect victims and
witnesses in connection with the criminal proceeding in which the restraining order is
issued in order to allow participation without fear of reprisal,’ the duration of such an
order ‘is limited by the purposes it seeks to accomplish in the criminal proceeding.’
(Stone, supra, 123 Cal.App.4th at pp. 159-160.) That is, the protective orders issued
under section 136.2 [are] operative only during the pendency of the criminal proceedings
and as prejudgment orders. (Stone, supra, at p. 160.)” (People v. Selga, supra, 162
Cal.App.4th at pp. 118-119; see People v. Scott (2012) 203 Cal.App.4th 1303, 1324-
1325; People v. Ponce (2009) 173 Cal.App.4th 378, 383.)
1All statutory references are to the Penal Code.
2.
In this case, the trial court erred when it issued the protective order under
section 136.2 because it had sentenced defendant to prison. As the second page of the
criminal protective order form states: “Orders under Penal Code Section 136.2 are valid
as long as the court has jurisdiction over the case. They are not valid after imposition of
a state prison commitment. (See People v. Stone[, supra,] 123 Cal.App.4th 153.)”
Accordingly, the parties agree that the order must be stricken.
DISPOSITION
The criminal protective order under section 136.2 is stricken. In all other respects,
the judgment is affirmed.
3.