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Name: People v. Race
Case #: E066059
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/11/2017

Trial court correctly issued protective order as to defendant’s daughter, even though he did not plead to any criminal offense involving her. Race pleaded no contest to attempted lewd acts on his minor niece (Pen. Code, §§ 664, 288, subd. (a)). As part of sentencing the trial court issued a 10-year protective order (Pen. Code, § 136.2, subd. (i)(1)) as to both his niece and his daughter. Race challenged the protective order as to his daughter because he did not plead to any offense involving her. Held: Affirmed. In cases where a defendant is convicted of a crime involving domestic violence, the sentencing court shall consider issuing a protective order of up to 10 years, restraining the defendant from contacting the victim (Pen. Code, § 136.2, subd. (i)(1)). After reviewing relevant case law, the Court of Appeal concluded that the term “victim” as it is used in section 136.2 “must be construed broadly to include any person against whom there is ‘some evidence’ from which the court could find the defendant had committed or attempted to commit some harm within the household.” In this case, there was evidence that Race had sexually assaulted his daughter. This was sufficient to support the criminal protective order as to her.

In considering the issuance of a criminal protective order, a trial court is not limited to reviewing the facts underlying the offenses to which the defendant is convicted, regardless of the execution of a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Race argued the trial court could not consider evidence from the police reports and preliminary hearing transcript in deciding to issue a protective order as to his daughter because his Harvey waiver did not extend to the issuance of a protective order and his stipulation to a factual basis for the plea did not extend to the charged count involving his daughter. However, in deciding to issue a protective order, the trial court may consider all competent evidence before it.

The full opinion is available on the court’s website here: