People v. Younkin CA5 ( 2024 )

Filed 10/1/24 P. v. Younkin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F087434
Plaintiff and Respondent,
(Super. Ct. No. RF009298A)
v.
TRAVIS JARED YOUNKIN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth G.
Pritchard, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers,
Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Franson, J.
Defendant Travis Jared Younkin appeals from errors in the criminal protective
order issued at sentencing by the trial court. We affirm the judgment but order the trial
court to correct the protective order.
PROCEDURAL BACKGROUND
The District Attorney of Kern County filed a complaint charging defendant with
child endangerment (Pen. Code,1 § 273a, subd. (a); count 1), vandalism (§ 594,
subd. (b)(1); count 2), misdemeanor driving under the influence of alcohol (Veh. Code,
§ 23152, subd. (a); count 3), misdemeanor driving with 0.08 percent or higher blood
alcohol content (Veh. Code, § 23152, subd. (b); count 4), misdemeanor driving under the
influence of a drug (Veh. Code, § 23152, subd. (f); count 5), misdemeanor driving under
the influence of alcohol and a drug (Veh. Code, § 23152, subd. (g); count 6),
misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a); counts 7–9),
and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350;
count 10). The complaint further alleged that defendant had a blood alcohol content of
0.15 percent or more (Veh. Code, § 23578) as to counts 3, 4, and 6 and a conviction for
violating Vehicle Code section 23152 within 10 years (Veh. Code, § 23540) as to
counts 3, 4, 5, and 6.
Defendant pleaded not guilty and denied the special allegations on September 26,
2023. The trial court also imposed a criminal protective order pending trial pursuant to
section 136.2 that would remain in effect until further order of the court and ordered that
defendant not dissuade, abuse, or contact the named victims and witnesses and stay 100
yards away from them. The order also advised law enforcement that it was valid until
defendant received a county jail or state prison commitment.
On October 10, 2023, pursuant to an agreement with the People, defendant
pleaded no contest to counts 1 and 6 through 9. He admitted the special allegations that
1 Undesignated statutory references are to the Penal Code.
2.
he had a blood alcohol content of 0.15 percent or more (Veh. Code, § 23578), had a prior
conviction (Veh. Code, § 23540), and was on probation at the time of the offenses (Cal.
Rules of Court, rule 4.421(b)(4)). The court dismissed the remaining charges. Defendant
also agreed to the imposition of a no force or violence criminal protective order. The trial
court modified the existing criminal protective order and removed all prohibitions except
for the order that defendant not abuse the victims and witnesses named therein.
At the sentencing hearing on November 28, 2023, the court suspended imposition
of sentence as to count 1, placed defendant on a four-year term of probation, and ordered
him to pay restitution and other fines totaling $1,859 as to all counts. The court also
suspended sentence and admitted defendant to concurrent probation terms of five years as
to count 6 and three years as to each of counts 7 through 9.
In addition, the court ordered defendant not to commit any violence on the victims
or harass or threaten them as conditions of his probation. The court issued a written order
using Judicial Council form CR-160 (“CRIMINAL PROTECTIVE ORDER—
DOMESTIC VIOLENCE”) and checked the box that described the order as a
“PROBATION CONDITION ORDER (Pen. Code, § 1203.097[, subd. ](a)(2)).”
(Boldface omitted.) However, the court checked boxes applicable only to section 136.2,
subdivision (i): In paragraph 3.a., the court made a finding that defendant targeted or
harmed the protected individuals and, in paragraph 4.b., the court set an expiration date of
November 28, 2026. The court did not issue an order to terminate the protective order
imposed on September 26, 2024, and later modified on October 10, 2023.
Defendant filed a timely notice of appeal on January 8, 2024, accompanied by a
certificate of probable cause signed by the trial court.
DISCUSSION
Defendant argues that the protective order issued on November 28, 2023 fails to
indicate its duration and statutory authority. The People respond that the trial court was
authorized to issue the protective order pursuant to section 1203.097, defendant agreed to
3.
it, and no further action by this court is necessary. However, for the reasons discussed
below, we shall remand for the trial court to correct the November 28, 2023 protective
order.
The trial court filed a protective order on November 28, 2023, after it suspended
defendant’s sentence and admitted him to probation for four years (as to count 1, child
endangerment) and three years (as to counts 7–9, disobeying a domestic relations court
order).2 The court checked the box in the caption of the Judicial Council form CR-160,
indicating that it was a modification, and also checked the box “PROBATION
CONDITION ORDER (Pen. Code, 1203.097[, subd. ](a)(2)).”3 (Boldface omitted.) The
People are correct that the court has the authority to impose a protective order as a
condition of probation pursuant to that section. However, the court then checked the box
in paragraph 3.a. and added an expiration date to paragraph 4.b., which are only
applicable to post-conviction protective orders pursuant to section 136.2, subdivision (i).
Sections 136.2, subdivision (i) and 1203.097, subdivision (a)(2) have different
durations: Section 1203.097, subdivision (a)(2) is limited to the term of probation while
section 136.2, subdivision (i) authorizes a term of up to 10 years. Furthermore, the
consequences of violation are somewhat different. Both statutes permit the court to
punish violations of protective orders as contempt of court pursuant to section 166,
subdivision (a) as a misdemeanor punishable by imprisonment in a county jail for not
more than one year. However, a violation of a section 136.2 protective order may also be
punished for an offense described in section 136.1, which provides for a state prison
2 Defendant was also admitted to a five-year term of probation as to count 6, driving under
the influence, but the protective order was not a condition of that probation.
3 Section 1203.097, section (a)(2) provides that in cases involving a person described in
Family Code section 6211 (i.e., a child or former spouse of a party), the court shall include a
probation term for “[a] criminal court protective order protecting the victim from further acts of
violence, threats, stalking, sexual abuse, and harassment .…”
4.
sentence of up to four years depending upon the nature of the violation. (§§ 18, subd. (a),
136.1, subds. (a), (b), (c), 136.2, subd. (b).)
Due to the different requirements of sections 136.2, subdivision (i) and 1203.097,
we conclude that the trial court should correct the November 28, 2023 protective order to
clarify its statutory authority and, if issued pursuant to section 1203.097, there is no need
to indicate an expiration date as it will terminate at the expiration of defendant’s four-year
probation term ordered as to count 1.4
DISPOSITION
The matter is remanded for the trial court to correct the November 28, 2023
protective order and indicate whether it is issued pursuant to section 136.2,
subdivision (i) or section 1203.097 and, if the latter, remove the check in the box for
paragraph 3.a. and the expiration date added to paragraph 4.b. The judgment is otherwise
affirmed.
4 We also note that if the court intended that the November 2023 protective order
supersede the September 26, 2024 (& modified Oct. 10, 2023) protective order, page 4 of
Judicial Council form CR-160 recommends using Judicial Council form CR-165 to do so in
order that law enforcement may cancel it in the California Law Enforcement
Telecommunications System.
5.