Filed 8/27/26 P. v. Ayala CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D088197
Plaintiff and Respondent,
v. (Super. Ct. Nos. SWF2401634,
SWF2101903, SWF240045)
ISMAEL AYALA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Linda Clark, Judge. Affirmed as modified.
Stephanie L. Gunther, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Kristine A.
Gutierrez and Emily Reeves, Deputy Attorneys General, for Plaintiff and
Respondent.
Ismael Ayala appeals the no-contact and stay-away orders imposed by
the trial court as part of his prison sentence and as a condition of his parole
following his conviction for petty theft (Pen. Code,1 § 484) and making
criminal threats (§ 422). The Attorney General argues Ayala forfeited this
issue by failing to object to the orders in the trial court. We disagree and
strike the no-contact and stay-away orders because the trial court lacked
authority to issue them and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2023, a Home Depot asset protection investigator was on
the lookout for Ayala when he saw him enter the store. The investigator
observed Ayala select a torch, walk toward the back of the store, and enter
the bathroom with a backpack strapped around his chest and carrying the
torch in his hands. About three to five minutes later, Ayala walked out of the
bathroom with nothing in his hands and left the store.
Once outside the store, the investigator asked Ayala to return the
torch. Ayala responded with profanity and told the investigator he was “the
type of [person] that I will cut up and leave . . . anywhere I want, and I’ll beat
you up too.” The investigator saw Ayala was holding a knife, so he backed up
“to deescalate” the situation. Ayala attempted to show the investigator his
backpack, but the investigator “didn’t even look inside of it” because he was
“just trying to step away from [Ayala] at that point.” As the investigator
backed away, Ayala told him, “I can always come back any time and steal
whatever I want, whenever I want, and do whatever I want.” The
investigator went back inside the store and found packaging for the torch in
the bathroom trashcan. He then called the police. Later, he was shown a
photographic line up and he selected Ayala’s picture.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
In December 2024, the District Attorney filed a first amended
information alleging that Ayala committed robbery (§ 211) and made criminal
threats (§ 422). The information further alleged Ayala was previously
convicted of a serious prior offense (§ 211) in 2010, and that the same offense
also constituted a strike prior. It also alleged the following aggravating
factors: “the offense involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness”; Ayala threatened to “cut the victim” and drew
“attention to the knife in [his] possession in connection with the threat,”
indicating a “serious danger to society”; Ayala’s adult convictions and
sustained petitions in juvenile delinquency proceedings were “numerous and
of increasing seriousness”; and he “served a prior term in prison or county
jail.”
Later that month, a jury found Ayala guilty of making criminal threats
(§ 422) and the lesser offense of petty theft (§ 484). The court found the
aggravating factors true.
At his sentencing hearing in March 2025, Ayala pleaded guilty in other
cases to grand theft (§ 487, subd. (a)), bringing or sending a controlled
substance into a penal institution (§ 4573) and driving under the influence
(Veh. Code, § 23152, subd. (f)). The court sentenced Ayala for all cases to a
combined term of nine years and four months in state prison. At sentencing,
the prosecutor asked, “As part of your orders and the sentence, could he be
ordered not to have any contact with [the Home Depot asset protection
investigator], as well as to stay away from the Home Depot in Temecula?”
The court stated, “Well, Counsel, any such order has to be proscribed in terms
of the period of time, number one, in which that order remains in effect.”
The court then said, “I can make that order throughout the period of parole or
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post release supervision.” The prosecutor affirmed he was requesting the
orders throughout the period of parole or post release supervision. The court
stated, “All right. That will be the court’s order. In addition, [Ayala] is
ordered not to have any contact with [the Home Depot asset protection
investigator]; not to be within 50 yards of the Home Depot in Temecula at
any time while―well, obviously while in custody, but while on parole or post
release supervision in this case.”
DISCUSSION
As noted, Ayala argues the trial court erred when it imposed no-contact
and stay-away orders as part of his prison sentence and as a condition of his
parole. He contends his failure to object below does not forfeit this issue on
appeal because the orders were unauthorized under any circumstance. We
agree.
A. Waiver
Normally, only “claims properly raised and preserved by the parties are
reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).)
“In the sentencing context, we have applied the rule to claims of error
asserted by both the People and the defendant.” (People v. Smith (2001) 24
Cal.4th 849, 852.) “We have, however, created a narrow exception to the
waiver rule for ‘ “unauthorized sentences” or sentences entered in “excess of
jurisdiction.” ’ ” (Ibid.)
“A claim that a sentence is unauthorized . . . may be raised for the first
time on appeal, and is subject to judicial correction whenever the error comes
to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th
547, 554, fn. 6.) “[A] sentence is generally ‘unauthorized’ where it could not
lawfully be imposed under any circumstance in the particular case.” (Scott,
supra, 9 Cal.4th at p. 354.) “[S]uch error is ‘clear and correctable’
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independent of any factual issues presented by the record at
sentencing.” (Ibid.)
Because this case concerns whether the trial court was authorized to
impose no-contact and stay-away orders as part of a prison sentence and a
condition of parole, we will consider Ayala’s claim on the merits.
B. Analysis
The parties agree that the trial court did not have statutory authority
to impose no-contact or stay-away orders in these circumstances. While there
are statutory provisions that allow a trial court to impose no-contact and
stay-away orders in other circumstances, for example, domestic violence cases
(§ 1203.097), cases involving sexual assault of a minor (§ 1202.05, subd. (a)),
stalking cases (§ 646.9, subd. (k)), as a condition of probation (§ 1203.1,
subd. (j)) or during active criminal proceedings (§ 136.2), there are no statutes
specifically authorizing the trial court here to impose no-contact and stay-
away orders as part of Ayala’s prison sentence or as a condition of his parole.
The parties, however, disagree on whether the court here had inherent
authority to impose the orders. In making their arguments, they discuss
People v. Ponce (2009) 173 Cal.App.4th 378, 380 (Ponce). In Ponce, the
Attorney General argued that trial courts, independent of statute, have
inherent authority to issue appropriate protective orders to protect trial
participants. (Id. at pp. 383–384.) The Court of Appeal rejected that
contention, citing both California and federal court cases, and held that even
if the trial court had “relied on ‘inherent judicial authority’ to issue its order,
the result would not change. An existing body of statutory law regulates
restraining orders. ‘ “[I]nherent powers should never be exercised in such a
manner as to nullify existing legislation . . . .” ’ [Citation.] Where the
Legislature authorizes a specific variety of available procedures, the courts
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should use them and should normally refrain from exercising their inherent
powers to invent alternatives.” (Id. at p. 384.)
As in Ponce, the trial court here should have refrained from acting
because there is an existing body of statutory law regulating no-contact and
stay-away orders. In fact, the Legislature has adopted specific statutory
provisions authorizing parole boards to impose no-contact and stay-away
orders as a condition of parole. (§ 3053.2, subd. (a) [the parole board must
impose a no-contact order as a condition of parole if requested by the victim];
§ 3053, subd. (a) [the parole board “may also impose on the parole any
conditions that it may deem proper”].) Under this statutory scheme, the
victims here can request the parole board to include no-contact and stay-
away orders as a condition of Ayala’s parole. (§ 3053.2, subd. (a).)
Additionally, Code of Civil Procedure section 527.6, subdivision (a) authorizes
trial courts to issue orders to protect against any threats or harassment after
notice and hearing. Therefore, because the Legislature already authorizes
available procedures for no-contact and stay-away orders for the victims in
this case, the trial court was not authorized to impose them under its
inherent authority.
Moreover, the Court of Appeal in Ponce rejected the Attorney General’s
inherent authority argument because there was “no evidence” the defendant
“had threatened, or had tried to dissuade, any witness, or had tried to
unlawfully interfere with the criminal proceedings” and “[t]he prosecutor did
not make an offer of proof or any argument to justify the need for a protective
order.” (Ponce, supra, 173 Cal.App.4th at p. 384.) Similarly, here, apart from
Ayala’s threat during the commission of the crime for which he was
convicted, the “prosecutor’s wish to have such an order, without more, is not
an adequate showing sufficient to justify the trial court’s action.” (Id. at
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p. 385.) Although the Attorney General urges us to remand to the trial court
“to make a record regarding the necessity of the protective orders,” because
we conclude the trial court did not have authority (statutory or inherent) to
impose them, we strike them instead. (Id. at p. 386 [striking protective order
issued at sentencing where trial court lacked authority to impose it].)
DISPOSITION
We strike the no-contact and stay-away orders imposed by the trial
court as part of Ayala’s prison sentence and as a condition of his parole but
otherwise affirm the judgment.
BERMÚDEZ, J.
WE CONCUR:
O’ROURKE, Acting P. J.
CASTILLO, J.
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