Filed 10/21/26 P. v. Gonzalez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053454
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2407663)
v.
ARMANDO GONZALEZ,
Defendant and Appellant.
THE COURT*
Armando Gonzalez was convicted of assault with a deadly weapon and sentenced
to six years in prison. At sentencing, the trial court issued protective orders under Penal
Code section 136.2 prohibiting Gonzalez from contacting the victim of the assault or the
victim’s wife. (Subsequent undesignated statutory references are to the Penal Code.)
Gonzalez appeals, arguing that section 136.2 does not authorize post-sentencing
protective orders in cases such as this one, and the Attorney General concedes that the
protective orders in this case are unauthorized. As explained below, we accept this
concession and order the protective orders stricken.
* Before Lie, Acting P. J., Wilson, J., and Bromberg, J.
I. BACKGROUND
In May 2024, P.J. was taking an evening walk around the residential complex
where she lived with her husband D.K. (See Cal. Rules of Court, rule 8.90(b)(4), (10)
[victims and others whose personal privacy should be protected may be referenced by
initials only].) Gonzalez approached P.J. and began talking to her. After several minutes,
D.K. saw Gonzalez talking to P.J. and joined her. Gonzalez became confrontational, and
D.K. asked him to leave, which prompted Gonzalez to begin shouting and swearing.
However, D.K. and P.J. were able to walk safely back to their house.
A bit later, after D.K. went outside to get some food, Gonzalez approached D.K.
and stabbed him. The knife lacerated D.K.’s abdomen and punctured his liver. Although
such a wound is serious and, indeed, can be fatal, D.K. recovered without surgery, albeit
after a long period of inactivity.
The police arrived quickly, located Gonzalez, and arrested him. They also found a
pocketknife nearby. Gonzalez was initially charged with a single count: assault with a
deadly weapon under section 245, subdivision (a)(1). Later, an information charged him
with the same offense and alleged a prior strike (§ 1170.12, subd. (b)(3)) as well as an
enhancement for causing great bodily injury (§ 12022.7, subd. (a)).
The case went to trial in late February 2025, and in early March a jury convicted
Gonzalez of the assault charge and found true the great bodily injury allegation. The trial
court dismissed the strike allegation, and in April 2025 it sentenced Gonzalez to six years
in prison: three years on the assault conviction consecutive to another three years for the
great bodily injury enhancement.
At the end of the sentencing hearing, the trial court asked the prosecution whether
there was anything else to address. Although the prosecutor responded negatively, the
clerk noted that a protective order had been issued earlier in the case and inquired
whether the order would be continued. When the trial court asked what to do, the
prosecutor responded that “[t]here should be a new protective order issued today” and the
2
order should be for 10 years. The trial court granted the prosecutor’s request and decided
to protect P.J. as well. Accordingly, the trial court issued protective orders “under Penal
Code, § 136.2” for both D.K. and P.J. (Capitalization omitted.)
Gonzalez filed a timely notice of appeal.
II. DISCUSSION
Gonzalez argues that section 136.2 does not authorize post-sentence protective
orders based on his conviction for assault with a deadly weapon. Although Gonzalez did
not object to the protective orders, sentences entered in excess of a trial court’s
jurisdiction may be challenged for the first time on appeal. (See, e.g., People v. Smith
(2001) 24 Cal.4th 849, 852; People v. Ponce (2009) 173 Cal.App.4th 378, 381-382
(Ponce).) We therefore address Gonzalez’s objection to the protective orders issued
under section 136.2. As noted above, the Attorney General concedes that the orders were
unauthorized. As explained below, we agree.
Section 136.2 provides in subdivision (a) that, “[u]pon a good cause belief” that a
victim or witness was harmed, intimidated, or dissuaded, a court “with jurisdiction over a
criminal matter” may issue an order restraining the defendant from, among other things,
communicating “with a specified witness or a victim except through an attorney under
reasonable restrictions that the court may impose.” (§ 136.2, subds. (a)(1) & (D).)
Section 136.2 also provides in subdivision (i) that “[w]hen a criminal defendant has been
convicted” of certain specified offenses, “at the time of sentencing” a trial court shall
consider issuing “an order restraining the defendant from any contact with a victim” that
may extend up to 10 years. (§ 136.2, subd. (i)(1); see also § 136.2, subd. (i)(2)
[permitting similar orders concerning percipient witnesses that have been harassed].)
Because section 136.2, subdivision (i) authorizes orders “at the time of
sentencing” and against defendants who have “been convicted” (§ 136.2, subd. (i)(1),
(2)), but subdivision (a) makes no reference to either sentencing or conviction (§ 136.2,
subd. (a)), subdivision (i) is naturally understood to govern post-sentencing protective
3
orders. Indeed, even before subdivision (i) was added to section 136.2 in 2011
(Stats. 2011, ch. 155, § 1, p. 222), courts held that protective orders under subdivision (a)
are “limited to the pendency of the criminal action in which they are issued or to
probation conditions” and the subdivision does not authorize post-sentencing orders.
(People v. Stone (2004) 123 Cal.App.4th 153, 159; see also Ponce, supra, 173
Cal.App.4th at p. 382 [“orders issued under [section 136.2] are of [a] limited duration,”
and “[t]he trial court has jurisdiction to issue one only during ‘ “the pendency of [a]
criminal action” ’ before it. [Citation.]”]; People v. Selga (2008) 162 Cal.App.4th 113,
118 (Selga) [“section 136.2 is limited ‘to the pendency of [a] criminal action’ ”].)
Moreover, the Legislature added subdivision (i) to section 136.2 in express
reliance on the decisions holding that subdivision (a) does not authorize post-sentencing
restraining orders. When the bill that eventually amended section 136.2 to add
subdivision (i) was introduced, citing Selga and Ponce, one of the bill’s co-sponsors
observed that “[t]he 10-year authority this bill would authorize addresses court cases that
have held protective orders under this section operate only during the pendency of the
criminal proceedings.” (Sen. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012
Reg. Sess.) Feb. 18, 2011, p. 6 [citing Selga, supra, 162 Cal.App.4th 113 and Ponce,
supra, 173 Cal.App.4th 378].) Similarly, citing Ponce, the Assembly Committee on
Public Safety observed that “[p]rotective orders issued under this [section 136.2] are
valid only during the pendency of the criminal proceedings.” (Assem. Com. on Public
Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) as amended May 2, 2011, p. 2 citing
Ponce, at p. 382].) Thus, it is clear that the Legislature understood that subdivision (a) of
section 136.2 does not authorize post-sentence protective orders and that the section
authorizes such orders only under subdivision (i).
As both Gonzalez and the Attorney General recognize, subdivision (i) of
section 136.2 does not authorize post-sentence protective orders where, as here, a
defendant was convicted of an assault with a deadly weapon not involving domestic
4
violence. Subdivision (i) authorizes post-sentence protective orders “[w]hen a criminal
defendant has been convicted of a crime involving domestic violence, as defined in
Section 13700 . . . or in Section 6211 of the Family Code, a violation of subdivision (a),
(b), or (c) of Section 236.1 prohibiting human trafficking, Section 261, [Section] 261.5,
former Section 262, subdivision (a) of Section 266h, or subdivision (a) of Section 266i, a
violation of Section 186.22, or a crime that requires the defendant to register pursuant to
subdivision (c) of Section 290.” (§ 136.2, subd. (i)(1).) Gonzalez was not convicted of a
crime involving domestic violence; a violation of section 236.1’s prohibition against
human trafficking; rape or any of the sex-related offenses in sections 261, 261.5, 266h,
and 266i, or former section 262; a gang-related offense under section 186.22; or an
offense requiring registration as a sex offender under section 290. Instead, Gonzalez was
convicted of an assault with a deadly weapon under section 245, subdivision (a)(1) not
involving domestic violence. Because that offense is not one for which subdivision (i) of
section 136.2 authorizes post-conviction protective orders, the post-sentence protective
orders issued by the trial court were unauthorized.
III. DISPOSITION
The protective orders issued against appellant are stricken. The judgment is
otherwise affirmed.
5