P. v. Chavarria
Filed 6/24/13 P. v. Chavarria CA2/6
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opinion has not been certified for publication or ordered published for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
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE CHAVARRIA,
Defendant and Appellant.
2d
Crim. No. B242169
(Super.
Ct. No. LA070978)
(Los
Angeles County)
Jose Chavarria appeals
from a victim no-contact order issued after he pled no contest to
was sentenced to state prison. The trial
court ordered appellant to stay away from the victim.
the inherent authority to issue a non-statutory
Cal.4th 1084, 1094-1095.)
On May 14, 2012 appellant burglarized Claudia's
apartment, stealing her X-box game and checkbook. Appellant was on parole and lived in the main
house with his mother. Claudia lived in
the garage which had been converted to an apartment. She paid rent to appellant's father.
Pursuant to a negotiated
plea, appellant was sentenced to four years state prison. Over defense objection, the trial court
ordered appellant not to contact Claudia.
Discussion
Appellant argues that
the trial court had no jurisdiction to issue the no-contact order. Section 136.2 provides that a trial court may
issue a protective order during the pendency of a
conviction. (People v. Ponce
(2009) 173 Cal.App.4th 378, 382-383.)
Other statutes provide for protective orders in domestic violence cases
(§ 1203.097), in stalking cases (§ 646.9, subd. (k)), and in enumerated sex
offenses where the victim is a minor (§ 1202.05). None of those statutes apply nor did the
trial court rely on them.
In Townsel v.
Superior Court (1999) 20 Cal.4th 1084 our Supreme Court concluded that
trial courts have the inherent power to issue nonstatutory protective orders to
protect trial participants. There, the
defendant was convicted of murdering a witness to a crime and attempting to
prevent or dissuade a witness. He was
sentenced to death. Seven years after
the conviction, defendant filed a habeas petition to investigate possible juror
misconduct. The trial court ordered
appellate counsel not to contact the jurors without first obtaining the
approval of the trial court. Based on
defendant's history of interfering with the judicial process by killing or
threatening witnesses, the Townsel court
concluded that the trial court had the inherent authority to issue a
protective order to safeguard juror safety and privacy. (Id., at pp. 1094-1095.)
People v. Ponce
Appellant's reliance on People
v. Ponce, supra, 173 Cal.App.4th 378 (Ponce)
is misplaced. There, a protective order
was issued after defendant pled no contest to second degree robbery with a
street gang enhancement and was sentenced to state prison. We struck the order on the ground there was
no evidence that Ponce threatened
witnesses or the victim during the proceedings.
(
authority over an area where the Legislature has not acted, this does not
authorize its issuing orders against defendants by fiat or without any valid
showing to justify the need for the order.
[Citation.]" (
Unlike Ponce,
appellant contacted the victim through his mother (Rene Chavarria) who lived on
the property with the victim. It was
uncontroverted that Mrs. Chavarria had been calling and bothering the
victim. Mrs. Chavarria admitted doing so
and said "I'm not going to talk to her anymore. . . . This happened, and its done." A note in the file stated that the victim was
concerned that appellant would phone her from prison. The trial court found
that the victim "is scared of [appellant] and doesn't want him around
her."
In Ponce
there was no showing that the victim was contacted or harassed by defendant
or "by anyone acting on his behalf, during his incarceration." (
powers should never be exercised in such as a manner as to nullify existing
legislation. . ." ' [Citation.] Where the Legislature authorizes a specific
variety of available procedures, the courts should use them and should normally
refrain from exercising their inherent powers to invent alternatives.
[Citation.]" (
v. Pomce. Supra. 173 Cal. at p. 384.)
Unlike Ponce,
the trial court did not base its order on section 136.2 or use its inherent
powers to nullify existing legislation.
Nor does section 136.2 or the other statutes cited by appellant state
that trial courts may only issue protective orders to a limited class of
victims. (See e.g., People v.
Clayburg (2012) 211 Cal.App.4th 86, 89 [stay away order to protect daughter
of stalking victim did not violate section 646.9, subd. (k)(1)].) Although the victim could have filed a civil
action to obtain a restraining order pursuant to Code of Civil Procedure
section 527.6, it would be an unnecessary duplication of judicial
resources. It would elevate form over
substance to hold that only certain superior court departments may issue
post-conviction protective orders.
Conclusion
The Victim's Bill of
Rights (Cal. Const. I, § 28),
provides: "The rights of victims
pervade the criminal justice system" (§ 28, subd. (a)(3)) and that victims
have the right "[t]o be reasonably protected from the defendant and persons
acting on behalf of the defendant." (§ 28, subd. (b)(2).) It takes no leap of logic to conclude that a
trial court has the inherent power, on a good cause showing, to order a
defendant sentenced to state prison not to contact a victim or a victim's immediate
family. (Townsel, supra, 20 Cal.4th at pp. 1094-1095; People v. Clayburg,
91-92.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Karen J. Nudell, Judge
Superior Court County of Los Angeles
______________________________
California Appellate
Project, under appointment by the Court of Appeal, Jonathan B. Steiner,
Executive Director and Suzan E. Heir, Staff Attorney, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Kimberly J. Baker-Guilemet, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] Appellant was ordered "not to annoy,
harass, strike, threaten, assault sexually or otherwise, follow, stalk, molest,
destroy or damage real or personal property, disturb the peace, keep under
surveillance or block movements of the protected person Claudia [C]."
