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Name: People v. Delarosarauda
Case #: B248615
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 06/20/2014

The trial court did not have authority to issue a protective order barring an appellant convicted of corporal injury to a co-habitant from having contact with his son or stepdaughter who were not victims. Appellant was convicted of corporal injury to a co-habitant (Pen. Code, § 273.5, subd. (a)) and other offenses. At sentencing, the trial court issued a criminal protective order as to the victim and her two children for the duration of 10 years. It included a provision ordering appellant not to contact the protected parties, except through defense counsel. Appellant challenged the protective order on appeal. Held: Protective order modified to remove the children. In criminal cases where a defendant has been convicted of a domestic violence crime or wilful infliction of corporal injury upon a victim, the trial court has authority to issue an order restraining the defendant from contacting the victim for up to 10 years. (Pen. Code, §§ 136.2, subd. (i)(1); 273.5, subd. (j).) Applying rules of statutory construction, the court here concluded that sections 136.2, subdivision (i)(1) and 273.5, subdivision (j) did not authorize the trial court to issue the no-contact order as to the children who did not meet the definition of victim in either statute. Appellant was convicted of assaulting the children’s mother and there was no evidence that appellant ever attempted to harm the children. The court rejected the argument that a sentence in both statutes addressing the length of the restraining order expands the meaning of “victim” to include a member of the victim’s immediate family.