Filed 11/26/13 P. v. Sanchez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056919

v.                                                                       (Super.Ct.No. SWF1202970)

ANTHONY EDWARD SANCHEZ,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.

Affirmed.

         Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Anthony Edward Sanchez is serving four years in prison after pleading

guilty to inflicting corporal injury on the mother of his children. He challenges the trial

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court’s order that he “have peaceful contact with [his children] only for the safe exchange

of children for visitation as stated in a family, juvenile, or probate court order issued after

the date that this order is signed, as an exception to any no-contact or stay-away order.”

This order was made at the suggestion of defense counsel to alter the standard language

in a form CR-160 domestic violence criminal protective order. As discussed below,

although neither the court nor the parties were aware that the Family Court had already

issued a civil restraining order protecting defendant’s children and their mother, there is

no need for a remand. This is because the criminal protective order, although it refers to

future orders rather than existing orders, accurately reflects the trial court’s intent to leave

any contact and visitation decisions up to the Family Court.

                                  FACTS AND PROCEDURE

       On July 4, 2012, defendant inflicted a corporal injury resulting in a traumatic

condition on the mother of his two children.1

       On July 31, 2012, the People filed a felony complaint charging defendant with

inflicting corporal injury resulting in a traumatic condition in violation of Penal Code,

section 273.5, subdivision (a).2 The People also alleged that defendant had four prison

priors (§ 667.5, subd. (b)).



       1 These are all the facts available in the record on appeal. Defendant pled guilty
before a preliminary hearing and waived preparation of a probation report. There is no
police report in the record.

       2   All section references are to the Penal Code unless otherwise indicated.



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       After defendant was arraigned on the complaint, the superior court issued a

domestic violence criminal protective order pursuant to section 136.2. The court ordered

defendant to have no contact with the victim or with his two children. The order stated

that any more-restrictive protective order issued in Family Law or by the Juvenile Court

would take precedence.

       On August 10, 2012, defendant plead guilty to the corporal injury charge in

exchange for dismissal of the prison priors. Defendant waived the probation report and

requested immediate sentencing. The court sentenced defendant to the four-year sentence

to which the parties had agreed.

       Also at this August 10, 2012 hearing, the court terminated its prior criminal

protective order and proposed to sign a post-conviction domestic violence criminal

protective order pursuant to section 273.5, subdivision (i).3 The parties and the court

entered into a lively discussion as to the terms of the new protective order. Defense

counsel asked that defendant be allowed contact with his two children and argued that

section 273.5, subdivision (i) applies only to the actual victims of the crime, which here

did not include defendant’s children. The People asked that the children be included in


       3  “Upon conviction under subdivision (a), the sentencing court shall also consider
issuing an order restraining the defendant from any contact with the victim, which may
be valid for up to 10 years, as determined by the court. It is the intent of the Legislature
that the length of any restraining order be based upon the seriousness of the facts before
the court, the probability of future violations, and the safety of the victim and his or her
immediate family. This protective order may be issued by the court whether the
defendant is sentenced to state prison, county jail, or if imposition of sentence is
suspended and the defendant is placed on probation.” (§ 273.5, subd. (i).)



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the new protective order because they had been included in the previous order. The

People argued that one of the children was present during the crime and that the victim

had asked that child to call for help. Defense counsel suggested that the standard form

for criminal protective orders in domestic violence cases, the CR-160, included boxes to

check that allowed for communication to occur where there was a family law visitation

order. Defense counsel proposed the trial court check box number 144 and that any

visitation would have to be by separate family law order. The People again asked that the

two children be included in the protective order. After this discussion the court proposed

the following to the parties: that only the children’s mother be listed in the order as a

protected person, and that box 14 be checked but modified to include the children’s

names in place of the phrase “the protected persons named above.” Neither party

objected, and the hearing ended.

       It appears that neither the parties nor the trial court were aware that the Family

Court in Hemet had on July 26, 2012, in case number HED017919, issued a five-year

civil restraining order after hearing. The Family Court used Judicial Council form DV-

130 to grant the children’s mother sole legal and physical custody, name the children and

their mother as protected persons whom defendant could not contact, and order no

visitation between defendant and his children until the parties attended child custody


       4  Box 14 on the form reads as follows: “may have peaceful contact with the
protected persons named above only for the safe exchange of children for visitation as
stated in a Family, Juvenile, or Probate court order issued after the date this order is
signed, as an exception to the “no-contact” or “stay-away” provision in paragraphs 10,
11, or 12 of this order.”


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reconciliation counseling. This Court hereby takes judicial notice of this order, pursuant

to defendant’s Request for Judicial Notice filed with this Court on January 14, 2013.

       This appeal followed.

                                        DISCUSSION

       Defendant asks this court to remand to the trial court with instructions to revise the

criminal protective order to allow defendant to have ongoing contact with his children

while he is incarcerated. He bases this request on three legal arguments, which we will

address in turn.

       First, defendant argues the trial court abused its discretion when it fashioned this

criminal protective order because it inadvertently re-imposed the restriction on contact

between defendant and his children that the court had sought to eliminate. Our reading of

the sentencing hearing transcript shows that the trial court did not intend to eliminate

restrictions on contact between defendant and his children. To the contrary, the trial

court was quite clear that it intended for the family law courts to determine what contact

was to be allowed. It set forth its intent behind checking box 14 and amending its

language as follows: “And then it goes on to state this will be pursuant to, in this

situation, any family court order issued after this date. [¶] So my guess is there will have

to be some family court proceeding, and that they would have to decide through

proceedings in front of them what, if any, visitation should be, and he has to comply with

that. So that’s what I’ll do.” It is apparent to us that, had the court been aware of the

prior civil protective order, it would have checked box number 13, which allows contact

according to existing “Family, Juvenile, or Probate court” orders, rather than box number


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14, which is identical except that it refers to such orders “issued after the date this order is

signed.”

       Thus, the trial court did not abuse its discretion because it accomplished what it

sought to accomplish—to allow the Family Court to decide whether defendant could have

contact with his children.

       Second, defendant contends a remand to correct the criminal protective order to

conform with the trial court’s intent to allow contact between defendant and his children

would be consistent with public policy. This argument is moot because we have already

determined that the trial court intended to leave this decision to the Family Court.

       Third, defendant argues remand is necessary to correct the conflict between the

criminal protective order and the prior civil restraining order, which is still in effect. As

the People point out, the criminal protective order is actually less restrictive than the prior

civil restraining order because it does not list the children as protected persons and it

permits future peaceful contact for visitation purposes if so ordered by another court.

Thus, there is no need for a remand.




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                                         DISPOSITION

     The trial court’s orders are affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                       RAMIREZ
                                                                 P. J.

We concur:



HOLLENHORST
                        J.

MILLER
                        J.




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