Filed 4/30/14 P. v. Giles CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C074120

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F01136)

         v.

CHRISTOPHER GILES,

                   Defendant and Appellant.




         Defendant Christopher Giles pleaded no contest to being a felon in possession of a
firearm (Pen. Code, § 29800, subd. (a)(1))1 and admitted one strike (§ 667, subds. (b)-(i))
in return for the dismissal of other counts and allegations with a Harvey2 waiver and a
stipulated state prison term of 32 months. At sentencing, the trial court imposed the
stipulated sentence. Citing sections 136.2 and 273.5, former subdivision (i), the court



1        Undesignated section references are to the Penal Code.
2        People v. Harvey (1979) 25 Cal.3d 754.

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also issued a protective order prohibiting defendant from harassing C.C., the alleged
victim in several of the dismissed counts.
       Defendant contends the protective order was not authorized under either statute
cited by the trial court. The Attorney General concedes that section 273.5, former
subdivision (i) did not authorize the order, but contends that section 136.2, subdivision
(i)(1) did. We conclude defendant is correct. We strike the protective order and
otherwise affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       An amended complaint (later deemed an information) accused defendant of
inflicting corporal injury resulting in a traumatic condition upon C.C., the parent of
defendant’s child (count one; § 273.5, subd. (a)); misdemeanor infliction of pain and
suffering upon A.D., a child aged two months (count two; § 273a, subd. (b)); making
criminal threats against C.C. (counts three & seven; § 422); assaulting C.C. with a
firearm (counts four & five; § 245, subd. (a)(2)); unlawfully discharging a firearm in a
grossly negligent manner (count six; § 246.3); misdemeanor use of force upon the person
of C.C., the parent of defendant’s child (count eight; § 243, subd. (e)(1)); being a felon in
possession of a firearm (count nine; § 29800, subd. (a)(1)); and unlawfully possessing a
short-barreled rifle (count ten; § 33215). The complaint alleged defendant had been
convicted of robbery, a serious felony and strike (§§ 211, 667, subds. (a), (b)-(i),
1170.12), and he had served three prior prison terms (§ 667.5, subd. (b)).
       Defendant entered a plea of no contest to count nine and admitted the strike in
return for a state prison term of 32 months (the low term on count nine, doubled for the
strike). Defendant pleaded not guilty to the remaining counts and denied the remaining
priors. The trial court deferred the People’s motion to dismiss the remaining counts in
the interest of justice.
       The prosecutor recited the factual basis for defendant’s plea as follows: “On
February 2nd, 2013, officers responded to the defendant’s home in Sacramento County.

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[C.C.], who resides with the defendant, told the officers that the defendant possessed a
firearm, that the firearm was located in the garage area of the residence concealed behind
a curio cabinet. [¶] [C.C.] told the officers that the defendant had previously pointed the
firearm at her and had previously fired the firearm inside the house. [¶] The officers
searched the area where [C.C.] described and located a Ruger 10/22 semiautomatic
firearm, the barrel and buck stock of the rifle were sawed off, and the length of the rifle
was approximately 18 inches. The rifle was loaded with ten live rounds of ammunition.
[¶] The defendant admitted that he had handled the firearm previously. He might have
moved it. [¶] Admittedly, [C.C.]’s son, [J.], admitted that the defendant did possess the
firearm and that he had given [J.] the firearm previously to move for him. [¶] The
defendant was previously convicted of felony offense [sic] of second-degree robbery, in
violation of Section 211 of the Penal Code on January 28th, 1999, in the County of
Sacramento, which is a strike offense and a prior felony for a 29800 [former § 12021].”3
       At judgment and sentencing, the trial court imposed the agreed upon 32-month
prison sentence and dismissed the remaining counts in the interest of justice with a
Harvey waiver. (The prosecutor stated that the Harvey waiver was “for restitution to the
victim if there is any.”) The court then told defendant, “We’re going to serve you with
this protective order. And make sure you take a look at that and understand that. You
can discuss that with [defense counsel] if you care to. It’s pretty clear. Pretty much
means you can’t harass her.” Defendant said, “Okay.”




3      After this recital, the trial court asked why the People were pleading the case to a
low term. The prosecutor replied that C.C.’s statements contained many inconsistencies,
going even to whether the incidents happened at all; furthermore, she was still in contact
with defendant and did not want a no-contact order.

      Defense counsel later requested a six-week continuance for judgment and
sentencing because defendant was going to marry C.C.

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       The trial court thereupon entered a “criminal protective order -- domestic
violence” pursuant to sections 136.2 and 273.5, former subdivision (i), which barred
defendant from harassing C.C. The order purported to take effect on May 24, 2013, the
date of sentencing, and to expire on May 24, 2018.
                                       DISCUSSION
       Defendant contends the protective order could not properly issue under either
statute cited by the trial court.4 The Attorney General agrees as to section 273.5, former
subdivision (i), but disagrees as to section 136.2. Defendant has the better argument.
       The parties are correct that section 273.5, former subdivision (i) could not
authorize the protective order. Section 273.5, former subdivision (i) provided: “Upon
conviction under subdivision (a), the sentencing court shall also consider issuing an order
restraining the defendant from any contact with the victim . . . .” (Stats. 2012, ch. 867, §
16.) But defendant was not convicted under section 273.5, subdivision (a). Count one,
which charged that offense, was dismissed (albeit with a Harvey waiver).
       Defendant contends that section 136.2 also fails to authorize the protective order.
In his opening brief, he reasons as follows:
       Section 136.2, subdivision (a), at the time of defendant’s conviction, stated in part:
“Except as provided in subdivision (c), upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to
occur, any court with jurisdiction over a criminal matter may issue orders including, but
not limited to, the following: [¶] . . . [¶] (4) An order that any person described in this
section shall have no communication whatsoever with any specified witness or any


4      He also contends his failure to object below does not forfeit the contention
because the order, absent any valid statutory basis, is unauthorized. The Attorney
General does not argue that the contention is forfeited. In light of our conclusion that the
protective order is unauthorized, we agree that defendant’s failure to object did not forfeit
his contention. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Ponce (2009) 173
Cal.App.4th 378, 381-382.)

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victim . . . .” (Stats. 2012, ch. 513, § 2.) Protective orders issued under this provision are
“operative only during the pendency of the criminal proceedings and as prejudgment
orders.” (People v. Selga (2008) 162 Cal.App.4th 113, 117-119 [striking an order issued
under this provision during trial but then modified after trial to a probation condition]; see
People v. Stone (2004) 123 Cal.App.4th 153, 159.) But here, the protective order was
issued at the close of the criminal proceeding and not as a prejudgment order; therefore, it
cannot be authorized by section 136.2.
       The Attorney General replies that defendant has overlooked the material portion of
section 136.2, namely subdivision (i)(1), which provided, at the time of defendant’s
conviction: “In all cases in which a criminal defendant has been convicted of a crime of
domestic violence as defined in Section 13700, the court, at the time of sentencing, shall
consider issuing an order restraining the defendant from any contact with the victim. The
order may be valid for up to 10 years, as determined by the court. This protective order
may be issued by the court regardless of whether the defendant is sentenced to the state
prison or a county jail, or whether imposition of sentence is suspended and the defendant
is placed on probation.”5 (Stats. 2012, ch. 513, § 2, italics added.) “ ‘Domestic
violence’ ” means “abuse committed against an adult or a minor who is a . . . cohabitant
. . . or person with whom the suspect has had a child or is having or has had a dating or
engagement relationship.” (§ 13700, subd. (b).) “ ‘Abuse’ ” means “intentionally or
recklessly causing or attempting to cause bodily injury, or placing another person in




5       The Attorney General asserts that this provision, which was enacted in 2011
(Stats. 2011, ch. 155, § 1), “essentially nullified” the holdings of People v. Selga, supra,
162 Cal.App.4th 113, and People v. Stone, supra, 123 Cal.App.4th 153, on which
defendant relies. Because we conclude that the precondition to applying section 136.2,
subdivision (i)(1) has not been met here, we need not decide whether the Attorney
General is correct as to this provision. As to section 136.2, subdivision (a), however, the
Attorney General is clearly incorrect in any case where subdivision (i)(1) does not apply.

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reasonable apprehension of imminent serious bodily injury to himself or herself, or
another.” (§ 13700, subd. (a).)
       The Attorney General does not assert that the offense of felon in possession of a
firearm, to which defendant pleaded no contest, is a “crime of domestic violence” on its
face. She argues, rather: (1) The dismissed counts included crimes of domestic violence,
and the Harvey waivers (which were “specifically referenced by the parties at the time of
the plea”) permitted the trial court to consider them for purposes of issuing a protective
order; and (2) The factual basis for defendant’s no contest plea, as recited by the
prosecutor, included defendant “pointing a weapon at the victim and firing the weapon in
the house” -- these facts demonstrated that defendant “ ‘intentionally or recklessly
caus[ed] or attempt[ed] to cause bodily injury, or plac[ed] another person [defendant’s
cohabitant and the mother of his child] in reasonable apprehension of imminent serious
bodily injury]’ ” within the meaning of section 13700, subdivisions (a) and (b). We are
not persuaded.
       The Attorney General cites no authority, and we know of none, holding that the
use of a Harvey waiver can stretch so far as to turn dismissed counts into convictions.
The Attorney General also cites no authority, and we know of none, holding that a
Harvey waiver permits a trial court to consider dismissed counts even for the limited
purpose of deciding whether to issue a protective order. The Attorney General’s artfully
phrased assertion (without citation to the record) that the dismissed charges “were
specifically referenced by the parties at the time of the plea” does not get the Attorney
General where she wants to go, because the parties and the trial court discussed the
dismissed charges and the Harvey waivers on the record only with respect to a future
order of restitution. Absent record citation and citation to apposite authority, the
Attorney General’s reliance on the Harvey waivers fails.
       The Attorney General’s claim that the factual basis for defendant’s plea
establishes his conviction of a crime of domestic violence is equally unfounded. As we

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noted, the offense of felon in possession of a firearm is not facially a crime of domestic
violence. Furthermore, that offense by its nature does not have a “victim.” Thus, the
Attorney General’s assertion that C.C. was a “victim” of that crime (which the prosecutor
did not say when reciting the factual basis for defendant’s plea) is inapt. The facts on
which the Attorney General relies cannot transmogrify defendant’s conviction of the
offense of felon in possession of a firearm into a conviction of a crime of domestic
violence.
       Because the Attorney General concedes that the protective order could not be
validly issued under section 273.5, and has not shown any valid ground for issuing it
under section 136. 2 (either subd. (a) or subd. (i)(1)), we conclude that the order must be
stricken.
                                      DISPOSITION
       The protective order is stricken. In all other respects, the judgment is affirmed.



                                                        NICHOLSON             , J.



We concur:



      RAYE                  , P. J.



      HOCH                  , J.




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