P.v . Gonzalez

Filed 1/8/09 P.v . Gonzalez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant is serving a 16-month prison term following his guilty plea to a violation of Penal Code section 422.^[1] He was awarded 397 days of presentence credit, ordered to pay a $200 restitution fine and a $200 fine pursuant to section 1202.45 that was stayed pending successful completion of parole. The court also ordered him to have no contact with the named victim for five years pursuant to section 646.9, a condition to which appellant objected.

Appellants sole ground of appeal is his contention that the no contact order is unauthorized under section 646.9 and that the court was without authority to make the order. We agree.

The record below indicates that the no contact order was issued pursuant to section 646.9 and was to expire in five years. Appellant contends and respondent concedes that section 646.9 does not apply in this case because appellant was not convicted of nor charged with stalking. Respondent asks this court to correct the lower courts erroneous reference to section 646.9 and to substitute Family Code section 6345, subdivision (a) in its place.

Family Code section 6345 is part of the Domestic Violence Prevention Act (the Act). (Fam. Code,  6200 et seq.) None of its provisions expressly reference its application to criminal proceedings. The Law Revision Commission Comments to Family Code section 6200 state that orders issued under the Act may be issued in a proceeding brought pursuant to this division , in a proceeding for dissolution, nullity, or legal separation, and in an action brought pursuant to the Uniform Parentage Act. Since the order in question did not arise out of a proceeding for dissolution, nullity, legal separation or pursuant to the Uniform Parentage Act, the question remains whether it was issued in a proceeding brought pursuant to this division. Clearly it was not. The record does not reflect that there was ever any intent on the part of the court to issue the no contact order pursuant to the Domestic Violence Prevention Act set out in the Family Code. Orders issued under the Act require the submission of an affidavit. (Fam. Code,  6300.) There is no indication in this record that such an affidavit was submitted. Family Code section 6306 requires that a specified criminal history search be conducted and that certain advisements be made concerning confidentiality of information obtained. Again, the record does not disclose that the court complied with those statutory requirements. There is simply no basis in this record to conclude that the no contact order was issued under the Domestic Violence Prevention Act.

There are several Penal Code sections which authorize no contact orders at the time of sentencing in specified circumstances, but none of those circumstances is present in this case. ( 1202.05, subd. (a) [child rape conviction];  646.9, subd. (k) [stalking];  1203.1, subd. (i)(2) [no contact order as a condition of probation].)

Section 136.2 gives the court authority to issue a no contact order in criminal cases upon a good cause belief that harm to a victim has occurred. ( 136.2, subd. (a).) The court must have jurisdiction over the pending matter in order to issue the order. ( 136.2, subd. (a).) The application of section 136.2 is limited to the pendency of a criminal proceeding and the good cause requirement requires a threat or likely threat in connection with the criminal proceedings or participation in them. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) Section 136.2 has no application here because the no contact order was issued at the conclusion of the criminal proceedings and not during their pendency. The statutes purpose is to protect victims and witnesses and preserve the integrity of the administration of criminal court proceedings by protecting those participating in them. (People v. Stone, supra, at pp. 159-160.)

Finally, although trial courts have the inherent power to protect the administration of justice from abuses, oppression and injustice (Wheeler v. United States (1981) 640 F.2d 1116, 1123), this power must be exercised with restraint and only when a defendants conduct presents significant interference with the administration of justice. (Id. at p. 1124, citing Bitter v. United States (1967) 389 U.S. 15.)

Here, there is no evidence that appellant interfered or attempted to interfere with the administration of justice during the pendency of the proceedings. Therefore, the court did not have the inherent authority to issue the no contact order.

The victim in this case is not without remedies. Code of Civil Procedure section 527.6, subdivision (a) authorizes the trial court to issue orders to protect against any threats or harassment after notice and hearing. She can also request a no contact order be included as a condition of parole. ( 3053.2, subd. (a).)

DISPOSITION

The no contact order is vacated. The judgment is otherwise affirmed.

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^* Before Vartabedian, Acting P.J., Dawson, J. and Kane, J.

^[1] All further statutory references are to the Penal Code unless otherwise noted.