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Name: People v. Stone
Case #: B169504
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 10/19/2004
Subsequent History: Rhrg. den. 11/04/04; rev. den. 1/19/05

A Penal Code section 136.2 restraining order purporting to extend past the end of a trial was not valid where it was issued after the jury was instructed but before conviction. In a prosecution for assault by means likely to cause great bodily injury and making a criminal threat, the court issued restraining orders preventing the defendant from contacting his alleged victims. The People made the request after the jury was instructed but before a verdict had been reached. The court used a Judicial Council form intended to apply to defendants placed on probation, and the defendant here argued that the restraining order was invalid because he was not granted probation. He further argued that the restraining order was issued prematurely and that the court should have used the procedure under Code of Civil Procedure section 527. The appellate court agreed that the restraining orders were invalid, noting that under Penal Code section 136.2 the court may only issue a restraining order when it has good cause to believe that harm to, or intimidation or dissuasion of a victim or witness is likely to occur absent the order. The section is properly construed to limit the term of the restraining order to the duration of the trial or to the term of a defendant’s probation. Thus, the restraining orders here, which were issued for three years and not as a condition of probation, were invalid.