Filed 9/10/26 P. v. Mercado CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086865, D086866
Plaintiff and Respondent, (Super. Ct. Nos. SCS332935,
SCD300405)
v.
ROSARIO GUTIERREZ MERCADO,
Defendant and Appellant.
CONSOLIDATED APPEALS from judgments of the Superior Court of
San Diego County, Garry G. Haehnle, Judge. Affirmed in part, reversed in
part.
Asya Ovsepyan, 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,
A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
MEMORANDUM OPINION1
Rosario Gutierrez Mercado appeals from a criminal protective order
entered as part of a judgment in one of two cases following a guilty plea in
one of the cases and jury verdict in the other. The People concede that the
protective order was unauthorized under Penal Code2 section 136.2,
subdivision (i), and that the order should be stricken. We accept the People’s
concession, vacate the protective order, and otherwise affirm the judgments.
In August 2025, Mercado pled guilty to assault by means of force likely
to produce great bodily injury (§ 245, subd. (a)(4)) and he admitted that he
inflicted great bodily injury on the victim, L.S. (§§ 12022.7, subd. (a) &
1192.7, subd. (c)(8).) According to preliminary hearing testimony, L.S. had
just ended her relationship with Mercado’s ex-girlfriend and the mother of his
two children when the assault occurred.
In a separate case that went to trial shortly before Mercado pled guilty
to assaulting L.S., a jury found Mercado guilty of robbery (Pen. Code, § 211),
assault by means of force likely to produce great bodily injury (Pen. Code,
§ 245, subd. (a)(4)), battery with serious bodily injury (Pen. Code, § 243, subd.
(d)), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and
possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)),
in connection with a road rage incident involving victim O.O. Mercado
followed O.O. in his car after O.O. allegedly drove too close to Mercado’s car
while his daughters were sitting inside it. After Mercado trailed O.O. to his
residence, Mercado got out of his car and fought O.O., took O.O.’s neck chain,
1 We resolve this case by memorandum opinion pursuant to California
Standards of Judicial Administration, section 8.1.
2 Undesignated statutory references are to the Penal Code.
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and then shoved O.O. onto the pavement. Officers found a firearm and
methamphetamine during a subsequent search of Mercado’s home. The
parties stipulated that Mercado had suffered a prior felony conviction.
At a consolidated sentencing hearing in September 2025, the trial court
sentenced Mercado to a total term of eight years eight months in prison. In
the case involving L.S., the court imposed a post-conviction criminal
protective order under section 136.2, subdivision (i), which prohibited contact
with L.S. for 10 years.
Penal Code section 136.2, subdivisions (i)(1) and (i)(2), provide in
relevant part that “[w]hen a criminal defendant has been convicted of a crime
involving domestic violence, as defined in [Penal Code] Section 13700 or in
Section 6211 of the Family Code, . . . the court, at the time of sentencing,
shall consider issuing an order restraining the defendant from any contact
with” a victim or percipient witness of the crime.
Section 13700 defines domestic violence to mean, in relevant part,
“abuse committed against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect has had a
child or is having or has had a dating or engagement relationship.”
Family Code section 6211 defines domestic violence to mean, in
relevant part, “abuse perpetrated against . . . : (a) A spouse or former
spouse[;] (b) A cohabitant or former cohabitant . . . [;] (c) A person with whom
the respondent is having or has had a dating or engagement relationship[;]
(d) A person with whom the respondent has had a child . . . [;] (e) A child of a
party or a child who is the subject of an action under the Uniform Parentage
Act, where the presumption applies that the male parent is the father of the
child to be protected[;] (f) Any other person related by consanguinity or
affinity within the second degree.”
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Mercado pled guilty to assaulting L.S., who was in a relationship with
his ex-girlfriend. But there is no evidence that Mercado had any separate
relationship with L.S. For the trial court to have properly issued a protective
order under Penal Code section 136.2, subdivision (i) in connection with L.S.’s
assault, Mercado must have been convicted of a crime involving domestic
violence against L.S., meaning he must have had a domestic relationship
with her as defined by Penal Code section 13700 or Family Code section 6211.
(See People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466.) As the People
concede, Mercado did not have such a relationship with L.S., which means
the assault did not qualify as a crime of domestic violence. Nor did Mercado’s
conviction fall within any of the other offenses enumerated in the statute.
(Pen. Code, § 136.2, subd. (i) [listing other qualifying offenses including
human trafficking, specified sex offenses, and participation in criminal street
gang].) We therefore accept the People’s concession that the post-conviction
protective order was unauthorized under section 136.2, subdivision (i)(1).
(See People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212.)
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DISPOSITION
The September 17, 2025 criminal protective order issued in San Diego
Superior Court case number SCD300405 is vacated. The judgments are
otherwise affirmed.
BUCHANAN, Acting P. J.
WE CONCUR:
CASTILLO, J.
BERMÚDEZ, J.
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