People v. McCart CA2/1

Filed 1/26/23 P. v. McCart CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B320152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA095386)
v.
JARED MCCART,
Defendant and Appellant.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Hilleri G. Merritt, Judge. Affirmed
and modified as to the judgment and reversed as to the order.
Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Wyatt E. Bloomfield
and Lindsay Boyd, Deputy Attorneys General, for Plaintiff
and Respondent.
The trial court convicted appellant Jared McCart of one
count of robbery after he and another man stole a truck. The
trial court sentenced appellant to two years in prison and issued
a 10-year restraining order in favor of the victim of the crime.
McCart appeals the order, arguing the trial court lacked
authority to issue it. Respondent agrees. We conclude that the
court erred in granting the restraining order.
PROCEDURAL AND FACTUAL BACKGROUND1
On October 3, 2020, Walter Spohn observed McCart and
another man attempting to steal Spohn’s truck. When Spohn
confronted the two men, they “started hitting” him. Spohn was
pushed to the ground and dislocated his knee. McCart smashed
Spohn’s cell phone and grabbed the keys to the truck. When
McCart’s cohort’s car would not start, McCart used Spohn’s truck
to push the car up the street.
As a result of this incident, McCart agreed to plead no
contest to one count of robbery (Pen. Code, § 211)2 in exchange
for a sentence of two years in prison. The trial court accepted
his plea and sentenced him to the agreed-upon prison term.
Relying on section 136.2, the court also issued a restraining order
requiring McCart to stay away from and have no contact with
Spohn for 10 years. McCart timely appealed.
1
We conclude this appeal is suitable for resolution by
memorandum opinion pursuant to standard 8.1 of the California
Standards of Judicial Administration.
2 All further statutory references are to the Penal Code.
2
DISCUSSION
“[D]uring 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. Selga (2008) 162
Cal.App.4th 113, 118, quoting People v. Stone (2004) 123
Cal.App.4th 153, 159.) Generally, a “trial court has jurisdiction
to issue [a section 136.2 protective order] only during ‘ “the
pendency of [a] criminal action” ’ before [the court].” (People v.
Ponce (2009) 173 Cal.App.4th 378, 382 (Ponce); see Selga,
supra, at p. 119 [section 136.2 orders generally are “operative
only during the pendency of the criminal proceedings and as
prejudgment orders”]; Stone, supra, at p. 159 [“[a]lthough
section 136.2 does not indicate on its face that the restraining
orders it authorizes are limited to the pendency of the criminal
action in which they are issued or to probation conditions, it is
properly so construed”].) Although section 136.2 provides some
exceptions to this general rule, none apply here. (Cf. § 136.2,
subd. (i)(1) & (2) [permitting post-proceeding restraining orders
in domestic violence cases]; People v. Robertson (2012) 208
Cal.App.4th 965, 996 (Robertson) [same].) Thus, section 136.2
does not grant authority to issue a restraining order after
criminal proceedings against a defendant have concluded.
We are not aware of any other statute authorizing a
restraining order that could apply under the circumstances
of this case. (Cf., e.g., § 646.9, subd. (k) [restraining order
valid for up to 10 years in stalking cases]; § 1203.097, subd. (a)
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[authorizing three-year restraining order as part of probation
granted in domestic violence cases]; § 1202.05 [at sentencing for
certain sex-based offenses against a minor, court may prohibit
visitation between minor victim and an imprisoned defendant].)
Finally, although in many contexts “a court has inherent
authority over an area where the Legislature has not acted,
this does not authorize [the court’s] issuing orders against
defendants by fiat or without any valid showing to justify the
need for the order.” (Ponce, supra, 173 Cal.App.4th at p. 384.)
Even assuming the court had such inherent authority, the
prosecutor here made no showing justifying the restraining
order. Rather, the prosecutor requested the order based solely
on Spohn’s stated concerns about future violence. But “ ‘[a]
prosecutor’s wish to have such an order, without more, is not
an adequate showing sufficient to justify the trial court’s action.’ ”
(Robertson, supra, 208 Cal.App.4th at p. 996.)
For these reasons, the restraining order must be reversed.
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DISPOSITION
The restraining order is reversed. The judgment
is modified to remove any reference to a restraining order
or protective order issued in this case. The court is further
directed to prepare an amended abstract of judgment removing
the requirement that McCart “[o]bey the protective order issued
in this . . . case,” and forward certified copies of the amended
abstract of judgment to the appropriate authorities. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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