Filed 7/23/14 P. v. Boston 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059400

v.                                                                       (Super.Ct.No. SWF1300751)

HAVLOC A. BOSTON,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

         Maria Leftwich, under appointment by the Court of Appeal, for Defendant and

Appeallant.

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

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Havloc Boston is serving 15 years in state prison after he violated his

probation by contacting the victim of his human trafficking activities despite a criminal

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protective order. He had received probation as part of a plea bargain in which he pled

guilty to human trafficking and possessing marijuana for sale. Defendant asks this court

to formally terminate the criminal protective order as no longer valid to avoid confusion.

As discussed below, the order by its own terms became invalid when defendant was

sentenced to state prison, and thus this court need not formally terminate it.

                                FACTS1 AND PROCEDURE

        On January 25, 2013, undercover law enforcement arrested the victim for

prostitution in Hemet. Defendant was arrested a short time later after he briefly pulled

into the parking lot outside the hotel room where the victim was arrested. Defendant had

17 ounces of marijuana in his car. Under questioning by law enforcement, the victim told

them defendant was her boyfriend of 10 months and that she supported them both by

working as a prostitute.

        On January 30, 2013, the People filed a complaint alleging defendant committed

pimping (Pen. Code, § 266h)2 and human trafficking for the purpose of prostitution

(§ 236.1, subd. (b)) and possessed marijuana for sale (Health & Saf. Code, § 11360, subd.

(a)).

        On February 28, 2013, defendant pled guilty to human trafficking and possessing

marijuana for sale in exchange for a grant of probation. Also on that date, the court

placed defendant on felony probation for 36 months, ordered him to serve 365 days in


        1Because defendant pled guilty to the charges, the facts of the crimes are taken
from the probation report.



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jail, and issued a criminal protective order under section 136.2 prohibiting defendant

from having contact with the victim. The order was made a condition of defendant’s

probation.

       On April 19, 2013, the People filed a petition to violate defendant’s probation

under section 1203.2, subdivision (b). The People alleged defendant violated his

probation by continuing to contact the victim. As of March 17, 2013, defendant had

made fourteen telephone calls to the victim while he was in custody. Defendant

demanded the victim place money in his jail account and threatened to violently assault

her.

       On July 10, 2013, defendant submitted a stipulation of fact stating that he

“knowingly had direct telephonic contact with [the victim] after being placed on

probation during the term of probation in the above-entitled action.” The superior court

found defendant to be in violation of his probation.

       On August 21, 2013, the superior court terminated defendant’s probation and

sentenced him to the mid-term of 14 years for human trafficking and one year on the

marijuana charge, for a total of 15 years. The court incorrectly stated that the criminal

protective order was still in effect, and had not yet been recalled.

       This appeal followed.




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


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                                          DISCUSSION

       Defendant argues the superior court should have acted affirmatively to terminate

the criminal protective order at sentencing on August 21, 2013. Instead, the superior

court muddied the waters when it advised defendant to the contrary: “Mr. Boston, I do

just want to remind you that the criminal protective order that was issued by Judge

Johnson at the time of the entry of the plea is still in effect. The violation of that order

can technically be a crime in and of itself for which, if you were to violate, you could

receive a consecutive term. So, it has not been recalled yet.”

       Defendant now asks this court to do what he contends the trial court should have

done but did not: take affirmative action to terminate the criminal protective order.

       The restraining order was issued under section 136.2. As both parties point out in

their respective briefs, the notice itself states that it is “not valid after imposition of a state

prison commitment” and cites to People v. Stone (2004) 123 Cal.App.4th 153, superseded

by statute on another point as stated in Babalola v. Superior Ct. (2011)192 Cal.App.4th

948, 951 The substance of the law is not at dispute here—both defendant and the People

agree that, once the superior court terminated defendant’s probation and imposed a state

prison sentence, the criminal protective order automatically terminated.

       “Although 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. It authorizes injunctions only by

courts with jurisdiction over criminal proceedings and is aimed at protecting only

‘victim[s] or witness[es],’ an indication of its limited nature and focus on preserving the


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integrity of the administration of criminal court proceedings and protecting those

participating in them. . . . The narrower scope of section 136.2 suggests that the

Legislature did not intend it to authorize restraining orders beyond those germane to the

proceedings before the criminal court.” (People v. Stone, supra, 123 Cal.App.4th at p.

159.)

        What is in dispute is whether this court should act to “expressly terminate” the

criminal protective order as defendant contends is necessary “to avoid unnecessary

confusion.” Defendant fears that law enforcement and other courts may be misled into

believing that the order is still valid because of the superior court’s comments to that

effect at sentencing and because the front page of the order provides that “This order

expires on (date): _____________ If no date is listed, this order expires three years from

the date of issuance.”

        We conclude that this court need not and should not take action to terminate a

criminal protective order that has already terminated by operation of law. Despite the

superior court’s inaccurate comments and the language on the front page of the order

indicating the order expires not longer than three years after issuance (February 28,

2016), the reverse side of the order clearly states that it “is not valid after imposition of a

state prison commitment.” As a matter of judicial economy, then, and so as to not




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encourage further appeals asking this court to perform a legal act that has already taken

place as a matter of law, we decline to do as defendant requests.3

                                       DISPOSITION

       The judgment and sentence are affirmed. The challenged criminal protective order

is invalid as a matter of law.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                GAUT
                                                                                             J.*


We concur:

RAMIREZ
                        P. J.

RICHLI
                           J.




       *
         Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


       3  If nothing else, defendant can point to this opinion as one of several legal
authorities, including the order itself and applicable case law, that confirm the criminal
protective order at issue is no longer valid.


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