People v. Pavlic CA4/2 ( 2014 )

Filed 12/29/14 P. v. Pavlic CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059002
v. (Super.Ct.No. SWF1200790)
MICHAEL PAUL PAVLIC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Minh U.
Le, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant, Michael Paul Pavlic guilty of domestic
battery. (Pen. Code, § 243, subd. (e)(1).)1 The trial court sentenced defendant to
county jail for a term of 365 days, and imposed a 10-year protective order protecting the
victim from defendant. (§ 136.2, subd. (i).) Defendant raises four issues on appeal.
First, defendant contends the trial court erred in instructing the jury on the law of self-
defense because the trial court failed to inform the jury about one’s right to defend one’s
self from unlawful touching. Second, defendant contends the trial court erred by
imposing the protective order because domestic battery is not a crime of domestic
violence. Third, defendant contends the trial court failed to consider the proper factors
when imposing the 10-year protective order. Fourth, defendant contends substantial
evidence does not support the imposition of a 10-year protective order. We affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION’S CASE
The victim is female and was 57 years old in June 2013, when defendant’s trial
took place. The victim is a musician. Defendant and the victim met in 2009, and their
relationship became romantic. Defendant moved into the victim’s home, in the Pinyon
Pines area of Riverside County.
1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.
2
In the months prior to March 22, 2012 defendant verbally abused the victim and
exhibited “bizarre behavior.” On March 22, the victim and defendant ate breakfast,
spoke to one another, and had a “fairly calm morning.” The victim exited the house and
went to her recording studio, which is on the same property as the house, but in a
separate building. The victim stayed in the recording studio for approximately four or
five hours.
The victim returned to the main house in the late afternoon. The victim wanted
to speak to defendant about their relationship and “what was going on with him.” The
victim found defendant lying in bed, in their shared bedroom. The victim sat on the
edge of the bed, and rubbed defendant’s back, in order to comfort him. Defendant
began crying uncontrollably. Defendant then stood up and turned on “really loud
music.”
Defendant picked the victim up from the bed, grabbing her upper body or
shoulder area. Defendant threw the victim into the corner of the room. Defendant
screamed that the victim “ruined his life,” called her a “‘whore’” and a “‘slut,’” and said
he “must like dirty girls.” Defendant “slammed” the right side of the victim’s head,
over her eye, with an object. The object was a gray box, which appeared to be a piece
of audio equipment. The victim was sitting upright on the floor when defendant struck
her with the box. Defendant struck the victim’s head two or three times with the box.
The victim’s “eyes were full of blood.” Defendant grabbed other objects, such as
bowls, from around the bedroom and threw them at the victim’s face.
3
The victim did not move or say anything during the attack. The victim feared
that any response on her part would make the situation more dangerous. The victim felt
dizzy, as though she were losing consciousness. Defendant picked the victim up again,
grabbing underneath her arms, and threw her toward the bedroom door. The victim’s
head struck the door. The victim lay by the door, and then “got up, and ran.”
The victim ran out of the house to her car. The victim kept her keys and
telephone in her car, because she felt she may “need to run” at some point, due to
defendant’s prior behavior. The victim drove to the highway, and then stopped because
she could not see due to the blood in her eyes. The victim called 911. Paramedics
transported the victim to a hospital. The victim suffered a cut above her right eyebrow
and bruising and swelling around her eyes. The victim also suffered “injuries to [her]
ribs, bruising and [a] contusion across [her] breast.” The cut above the victim’s
eyebrow required stitches.
Riverside County Sheriff’s Deputy Edwards (Edwards) met the victim at the
hospital. Edwards found the victim to be groggy, e.g., speaking slowly and having a
difficult time recalling things, which the victim said was due to being dizzy as a result
of the attack. Edwards believed the victim’s dizziness explanation was consistent with
the victim’s condition, and did not believe the victim was intoxicated.
The victim told Edwards that she had been speaking to defendant in the bedroom
when “he suddenly became angry.” Defendant grabbed the victim’s hair and pulled her
to the ground. Defendant struck the left side of the victim’s face with his fist and struck
the right side with a metal object. While the victim was on the ground, defendant
4
grabbed her hair, and pulled her into the hallway outside the bedroom door. At that
point, the victim ran out of the house.
Edwards went to the victim’s house to serve defendant with an emergency
restraining order. Defendant was at the house. Edwards looked defendant over for
injuries, but did not see any injuries on him. Edwards entered the house, and told
defendant he was under arrest. When looking around the house, Edwards saw (1) a
small drop of blood on a sheet in the victim’s and defendant’s bedroom; (2) blood on
the bedroom carpet; and (3) blood on a DVD player. The blood appeared to be fresh.
Defendant told Edwards the blood on the DVD player was from an incident with
his neighbor a week prior. Defendant said he and the victim had a verbal argument that
evening (March 22); he initially said it was only verbal. Later, defendant said the
victim was on the ground and he dragged her out of the bedroom by grabbing her
underneath her armpits and pulling her backwards. Defendant did not explain why he
dragged the victim out of the bedroom. Defendant did not say the victim was kicking
him when he dragged her. Defendant said the victim must have accidentally received
the cut above her eye when he dragged her out of the bedroom. Defendant told
Edwards he was not injured. When the victim was brought into the home, she saw the
bloody DVD player, pointed to it, and said to Edwards, “‘That’s what he hit me with.’”
B. DEFENSE’S CASE
In this subsection, we present defendant’s version of the events. Defendant and
the victim lived together for approximately two years. They had a romantic relationship
that was “quite blissful” for the first year, and then “progressively deteriorate[d]” during
5
the second year. Defendant believed the relationship problems were due to the victim
suffering a mental illness, bipolar disorder in particular. Defendant did not verbally
abuse the victim, but believed the victim found any unflattering comments about her to
be verbal abuse. In the later portion of the relationship, defendant and the victim would
have disagreements, which would ultimately result in “off the wall shouting matches.”
Defendant explained that any disagreement would “essentially become a battlefield.”
At times, the victim physically abused defendant.
On the morning of March 22, defendant and the victim drank brandy and smoked
marijuana together, in order to calm their nerves so they could discuss their relationship
issues without arguing. Around 11:00 a.m., the two reconciled and engaged in
intercourse. Later in the day, around 7:00 p.m., defendant and the victim’s conversation
took on a negative tone.
Defendant and the victim moved into the bedroom. Defendant sat on the bed,
while the victim sat on the floor. Defendant and the victim drank brandy, smoked
marijuana, and talked. Eventually, defendant decided to sleep. The victim was talking
to herself, and defendant wanted the bedroom to be quiet, so he asked the victim to
leave the room. The victim refused to leave. The victim shook her head and continued
talking to herself.
During prior incidents when the victim consumed alcohol and marijuana she
became physically incapacitated. As a result, defendant tried to determine if the victim
was not leaving the room due to being drunk, “stoned,” or having a multiple sclerosis
seizure. The victim was sitting on the floor, so defendant lifted her off the floor by
6
placing his hands underneath her armpits. As defendant lifted the victim, “she swung
around and circled”; she “swung out of [defendant’s] grasp and brought her legs over
the corner of the bed.” The victim’s buttocks were on the floor, but her legs were
against the bed and her feet were on the bed. Defendant thought the victim might kick
his face. Defendant tried to stop the victim from potentially kicking his face by
“placing [his] hand on her legs.” After defendant touched the victim’s legs, she began
“to kick at [him].”
Based upon the kicking motion, defendant determined the victim was not
physically incapacitated. Defendant used both of his hands to restrain the victim’s legs.
The victim continued trying to kick defendant. The victim was also flailing her arms
toward defendant, so defendant tried to block her arms as well. Defendant tried to
remove the victim from the bedroom. Defendant believed the only way to grab the
victim was by her hair, so he grabbed her hair. Defendant felt that grabbing the victim’s
hair would distract her from trying to strike him. Defendant used his free hand to push
the victim’s legs toward the bedroom door.
Defendant believed the victim struck her head on a TiVo box, which was on the
floor (it was not a DVD player). As defendant pushed the victim’s legs toward the door,
her torso “flopped on the ground,” and that was perhaps the moment when her head
struck the box. At that point, the victim was not trying to hit or kick defendant.
Defendant then placed both of his hands under the victim’s armpits, from behind;
placed his foot on the victim’s buttocks; and pushed her toward the bedroom door. The
victim was not hitting or kicking defendant, but her legs were moving “back at [him].”
7
After placing the victim outside the bedroom, he “slammed the door behind her.”
Defendant did not believe the victim would attack him once she was outside the room.
Defendant denied calling the victim a slut during the altercation, but did, during
the altercation, say the victim “ruined [his] life.” Defendant denied throwing the victim
around the room, denied throwing objects at her, and denied striking her with a metal
box. Defendant did not tell Edwards about the victim attempting to attack him because
Edwards did not ask. Defendant told Edwards he thought the blood on the TiVo box
was from an altercation with a neighbor because he previously had a physical
altercation with his neighbor in the house, and defendant did not realize the victim had
been injured during their altercation.
Approximately 10 days prior to the incident at issue in this case, the victim was
violent with defendant. During the prior incident, the victim threw two, one-foot tall
glass vases at defendant. The victim’s ex-husband testified that they divorced in the fall
of 2005. In September 2005, the victim grabbed her ex-husband and shoved him
backward, causing him to fall.
During closing argument, defense counsel argued defendant “was being kicked
and hit by [the victim], [and] did the only thing that he felt like he could do at that
moment, and that was to defend himself.” Defense counsel asserted the victim’s
testimony about the events was inconsistent with her prior statements about the
incidents. Defense counsel argued that defendant’s version of the incident was
consistent with the evidence, such as the victim’s injuries, and reflected the victim “was
8
struggling with him.” Defense counsel asserted defendant was in imminent danger of
being kicked in the face by the victim.
After the close of evidence, the trial court listed the jury instructions that would
be given to the jury “after discussing [the instructions] with counsel.” The trial court
asked the attorneys if they wanted to put any arguments on the record. Both attorneys
declined. The trial court told the attorneys to “go home and read” the instructions, and
let the court know the following morning if there is “some issue with the instruction[s]
or [if the court] made a typo or something like that.” The reporter’s transcript for the
following day begins with the trial court reading instructions to the jury.
DISCUSSION
A. JURY INSTRUCTION
1. CALCRIM NO. 3470
The trial court instructed the jury with CALCRIM No. 3470 as follows: “Self-
defense is a defense to Penal Code Sections 273.5 and 243(e)(1). The defendant is not
guilty of those crimes if he used force against the other person in lawful self-defense.
The defendant acted in lawful self-defense if:
“1. The defendant reasonably believed that he was in imminent danger of
suffering bodily injury;
“2. The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger;
“AND
9
“3. The defendant used no more force than was reasonably necessary to defend
against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the
harm is believed to be. The defendant must have believed there was imminent danger
of bodily injury to himself. Defendant’s belief must have been reasonable and he must
have acted because of that belief. The defendant is only entitled to use that amount of
force that a reasonable person would believe is necessary in the same situation. If the
defendant used more force than was reasonable, the defendant did not act in lawful self-
defense.
“When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.
“If you find that [the victim] threatened or harmed the defendant or others in the
past, you may consider that information in deciding whether the defendant’s conduct
and beliefs were reasonable.
“If you find that the defendant knew that [the victim] had threatened or harmed
others in the past, you may consider that information in deciding whether the
defendant’s conduct and beliefs were reasonable.
“Someone who has been threatened or harmed by a person in the past is justified
in acting more quickly or taking greater self-defense measures against that person.
10
“A defendant is not required to retreat. He or she is entitled to stand his or her
ground and defend himself or herself and, if reasonably necessary, to pursue an assailant
until the danger of bodily injury has passed. This is so even if safety could have been
achieved by retreating.
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not act in lawful self-defense. If the People have not met this burden, you
must find the defendant not guilty.”
2. ANALYSIS
Defendant contends the trial court erred by failing to instruct the jury that
defendant had the right to defend himself if he feared being touched unlawfully.
The instruction, in its unedited form, provides, “The defendant acted in lawful
(self-defense/ [or] defense of another) if:
“1. The defendant reasonably believed that (he/she/ [or] ____________ ) was in imminent danger of suffering bodily injury [or was in
imminent danger of being touched unlawfully].” (CALCRIM No. 3470.)
Defendant asserts the trial court erred by omitting the bracketed language
regarding unlawful touch. Defendant asserts the victim was unable to pose a risk of
injury to defendant, and therefore, he could not reasonably fear bodily injury from the
victim, and as a result his self-defense argument rested upon a theory that “[the victim]
was touching [defendant] unlawfully.”
“We review a claim of instructional error de novo. [Citation.]” (People v. Fiore
(2014) 227 Cal. App. 4th 1362, 1378.) “A court must instruct sua sponte on general
11
principles of law that are closely and openly connected with the facts presented at trial.
[Citation.]” (People v. Ervin (2000) 22 Cal. 4th 48, 90.) However, a trial court’s duty to
instruct sua sponte “on particular defenses is more limited, arising ‘only if it appears
that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal. 4th 186, 195.)
“‘[T]he least touching’” can constitute an unlawful touching. The touch “‘need
not be violent or severe, it need not cause bodily harm or even pain, and it need not
leave a mark.’ [Citation.]” (People v. Shockley (2013) 58 Cal. 4th 400, 404-405.)
Defendant testified that he feared being kicked in the face by the victim.
Defendant testified the victim moved her legs “in a threatening gesture, as if she [was]
going to kick [him] in the face.” Defendant said, “She began to kick at me after I
grabbed her legs . . . .” Defendant testified, “I’m trying to restrain her legs which [she]
is now active[l]y trying to kick me in the face with. But at the same time she is also
trying to strike me.” Defendant said, “I wasn’t having to strike, but basically trying to
block her blows.” Defendant spoke about previously having his nose broken due to
being kicked in the face. Defendant said he feared the victim would break his only pair
of glasses. The victim testified that she did not react in any manner to defendant’s
attack.
The foregoing evidence reflects two versions of the incident at issue. First, in
defendant’s version, the victim repeatedly tried to kick defendant in the face. The
victim also tried to strike defendant with her arms. Second, the victim did nothing—she
12
did not try to strike or kick defendant. Therefore, there was no evidence supporting the
bracketed “unlawful touch” language. (CALCRIM No. 3470.) The proper instruction
was given by the trial court, i.e., “imminent danger of suffering bodily injury.”
(CALCRIM No. 3470.) A kick in the face would not be the “least touching.”
Attempting to kick a person’s face is violent and would likely result in bodily harm
and/or pain. As defendant testified, it could result in a broken nose. Accordingly, we
conclude the trial court properly instructed the jury with the “bodily injury” language.
Defendant contends the unlawful touch language was relevant to the evidence in
the case because, at one point, defendant testified, “Well, at this point she’s already
trying to strike me, poorly, with her hand. And far more effectively, though I happen to
be in control with her feet, which is far more damaging. And at the very least, I stand—
again, I’ve had my nose broken before by getting kicked in the face. I’ve had
basketballs and et cetera in my face, where I wear wire frames. I have 20/500 in both
eyes. I was also trying to protect my glasses.”
Defendant contends that because he said the victim was “poorly” trying to strike
him with her hand that he only feared the least touching. Defendant fails to appreciate
the rest of his testimony. Defendant was explaining that he was restraining the victim’s
feet because he feared being kicked in the face. Defendant was justifying his actions of
restraining the victim’s legs by explaining that he feared the greater damage she could
inflict via kicking him, as opposed to hitting him. Thus, defendant was explaining his
fear of suffering bodily injury, i.e., his fear of being kicked in the face. As a result, we
are not persuaded that defendant only feared a slight touching from the victim’s “poor”
13
arm strikes because the evidence reflects he feared being kicked in the face due to the
potential for bodily injury, i.e., a broken nose.
Next, defendant contends that because the victim was drunk, high, and female,
defendant would not have feared she could inflict bodily injury. Defendant is
contradicting the theory of the case that he presented in the trial court. During closing
argument, defendant’s trial counsel argued, “Now, we know that [defendant] reasonably
believed that there was imminent danger. [The victim] started kicking and hitting him
near the face. She snapped and went crazy on him. That is imminent danger.”
Defendant’s trial attorney further argued, “[Y]ou heard him tell you that if he didn’t
block those kicks and punches, he would have gotten kicked in the face.” The
instruction the trial court gave was responsive to the theory of the case defendant
presented at trial, i.e. fear of bodily injury. Accordingly, we find defendant’s argument
to be unpersuasive.
Defendant contends that because he was charged with battery, which can be
committed by the least touching, the self-defense instruction should have included the
“unlawful touch” language, in regard to the victim’s actions. Defendant does not
provide an explanation for this reasoning. Defendant does not explain how the charges
against him would require particular language regarding the victim’s conduct. As
explained ante, the evidence would not have supported a finding of defendant fearing
the least touching from the victim, since the evidence reflected either no action on the
victim’s part or attempted kicks in the face.
14
Next, defendant asserts that all bodily injuries involve a harmful or offensive
touching, therefore, the trial court should have included the “unlawful touch” language
in the instruction. If an attempted kick in the face creates imminent danger of suffering
bodily injury, then the instruction adequately addressed the law and evidence. The jury
would not also need to be instructed on lesser touchings.
Lastly, defendant asserts the trial court gave the jury “two instructions” that
lowered the prosecution’s burden of proof. Defendant asserts the jury was instructed
that the prosecutor only had to prove an unlawful touching for the battery charge, but
defendant had to prove he feared suffering bodily injury, and therefore, the prosecutor’s
burden of proof was lowered. Defendant asserts he should have only been required to
prove fear of an unlawful touching.
Defendant’s argument is unpersuasive because he is not addressing the portion of
the instruction concerning the burden of proof. The trial court properly instructed the
jury, “The People have the burden of proving beyond a reasonable doubt that the
defendant did not act in lawful self-defense. If the People have not met this burden, you
must find the defendant not guilty.” The trial court properly instructed the jury on the
prosecution’s burden of proof. (See People v. Adrian (1982) 135 Cal. App. 3d 335, 339-
341 [prosecution must disprove self-defense].) The trial court did not instruct the jury
that defendant had to prove the element of fear. Accordingly, we find defendant’s
argument to be unpersuasive.
15
B. PROTECTIVE ORDER
Defendant contends the trial court erred by imposing a 10-year protective order
because domestic battery is not a crime of domestic violence.
We apply the de novo standard of review since we are interpreting the law.
(People v. Moncada (2012) 210 Cal. App. 4th 1124, 1129.) Defendant was convicted of
misdemeanor domestic battery. (§ 243, subd. (e)(1).) A battery may be accomplished
by “‘“‘the least touching.’”’” The touching does not need to be violent or severe.
(People v. Colantuono (1994) 7 Cal. 4th 206, 214, fn. 4.)
Under section 136.2, subdivision (i), a trial court may impose a protective order
that is valid for a maximum of 10 years in cases in which a defendant has been
“convicted of a crime of domestic violence as defined in Section 13700.” As relevant
here, “‘[d]omestic violence’ means abuse” between cohabitants. (§ 13700, subd. (b).)
“‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury,
or placing another person in reasonable apprehension of imminent serious bodily injury
to himself or herself, or another.” (§ 13700, subd. (a).)
Since a battery may be accomplished by “the least touching,” it would not
necessarily require bodily injury or fear of serious bodily injury. (See People v.
Wilkinson (2004) 33 Cal. 4th 821, 839 [discussing battery with injury and battery
without injury].) As a result, defendant is correct that not every crime of domestic
battery (§ 243, subd. (e)(1)) would satisfy the statutory definition of domestic violence
(§ 13700, subds. (a)&(b)).
16
The People assert battery fits within the statutory definition of domestic violence
because the definition includes “attempting to cause bodily injury.” (§ 13700, subd.
(a).) The People reason that if an attempted act is domestic violence, then a
consummated act of battery would also be domestic violence. The People’s reasoning is
problematic because they are failing to address the “bodily injury” aspect of the
definition. Since a battery can involve the “least touching,” a battery does not
necessarily include bodily injury. (See People v. Wilkinson, supra, 33 Cal.4th at p. 839
[discussing battery with injury and battery without injury].) Since the People do not
resolve this problem, we find their reasoning to be unpersuasive.
Next, the People assert defendant’s crime of battery falls within the statutory
definition of domestic violence based upon the evidence presented in the case.
Defendant responds, “If a jury did not decide [defendant’s] guilt on the issue of whether
this battery amounted to an abuse, he should not be sentenced as though he was found
guilty of an abuse.”
Defendant’s argument relies on an assumption with which we disagree.
Defendant, without explanation, discusses the protective order as though it is a form of
punishment. The relevant general rule is: “Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New
Jersey (2000) 530 U.S. 466, 490.) The question we must address is whether the
protective order is a “penalty.”
17
There are two factors for determining whether an action constitutes a penalty:
(1) “whether the Legislature intended the provision to constitute punishment and, if not,
[(2)] whether the provision is [nonetheless] so punitive in nature or effect that it must be
found to constitute punishment despite the Legislature’s contrary intent.’ [Citation.]”
(In re Alva (2004) 33 Cal. 4th 254, 270; see also People v. Castellanos (1999) 21 Cal. 4th
785, 795 (Castellanos).)
The purpose of a protective order is not to punish the defendant; rather, the
purpose is to protect the victim. (See People v. Ponce (2009) 173 Cal. App. 4th 378, 383
[the purpose of protective orders issued during trial is to protect victims and witnesses].)
The protective order statute reflects, “It is the intent of the Legislature in enacting this
subdivision that the duration of any restraining order issued by the court be based upon
the seriousness of the facts before the court, the probability of future violations, and the
safety of the victim and his or her immediate family.” (Former § 136.2, subd. (i).) The
“probability” and “safety” language reflect the protective order is about preventing
possible future harm. The seriousness of the current offense helps the court to
determine the future risk to the victim. Accordingly, this statutory language reflects the
Legislature’s intent was to protect victims from a risk of harm, not to punish defendants.
Accordingly, we move to the next step of the analysis, which is whether the
protective order is so punitive in nature or effect that it must be found to constitute
punishment despite the Legislature’s contrary intent. The protective order requires
defendant to surrender any firearms, not contact the victim, not come within 100 yards
of the victim, and not take any action to obtain the victim’s address or location. We
18
analogize the protective order to sex offender registration requirements. Sex offender
registration lasts for the offender’s lifetime and requires providing law enforcement
with one’s address, photograph, and fingerprints. (Castellanos, supra, 21 Cal.4th at p.
790.)
Our Supreme Court has held sex offender registration “imposes a substantial
burden on the convicted offender,” but is not a punishment because the “burden is no
more onerous than necessary to achieve the purpose of the statute.” (Castellanos,
supra, 21 Cal.4th at pp. 796, 799; see also People v. Picklesimer (2010) 48 Cal. 4th 330,
343-344 [sex offender registration is not considered a form of punishment under the
state or federal Constitutions].) Similar to sex offender registration, a protective order
places a burden on a defendant. However, the burden is tailored to address the
protective purpose. Defendant’s movements and actions are restrained only in relation
to the victim, so as to protect the victim. The surrendering of firearms is also for the
sake of protecting the victim. Since the burden placed on defendant is no more onerous
than necessary to achieve the purpose of protecting the victim, we conclude the
protective order is not so punitive in nature or effect that it must be found to constitute
punishment despite the Legislature’s contrary intent. Accordingly, the protective order
is not a “penalty.”
Since the protective order is not a form of punishment, the trial court could make
the abuse/bodily injury finding, rather than the jury. (Apprendi v. New Jersey, supra,
530 U.S. at p. 490 [a jury is required when the facts at issue increase the penalty for a
crime].)
19
We now address the People’s assertion that the evidence supports finding
defendant’s crime of battery falls within the statutory definition of domestic violence.
Defendant was charged with inflicting injury, resulting in a traumatic condition, on a
cohabitant. (§ 273.5, subd. (a).) A “‘traumatic condition’” includes minor wounds.
(§ 273.5, subd. (d).) The jury found defendant guilty of the lesser included offense of
domestic battery. (§ 243, subd. (e)(1).) Since the jury rejected the injury/traumatic
condition finding, the trial court could not contradict that finding in order to impose the
protective order. In other words, the trial court could not impose the protective order
because it found the victim suffered bodily injury. (See People v. Siko (1988) 45 Cal. 3d
820, 823-826 [trial court cannot contradict a jury’s findings when analyzing section 654
issue].)
However, the trial court could impose the protective order based upon a finding
that defendant placed the victim “in reasonable apprehension of imminent serious
bodily injury.” (§ 13700, subd. (a).) The trial court did not make an explicit finding on
the record regarding the charged conduct. However, the trial court did explicitly find
risk of future harmful contact. The trial court said the parties’ future contact could “lead
to some sort of conflicts and hostilities, and I’m concerned about the safety of, actually,
both parties.” It can be inferred from this statement about future harm that the trial
court impliedly found a risk of bodily injury in defendant’s past conduct, because the
trial court expressed concern for the parties’ safety, which implies a risk of injury.
Thus, we can infer the trial court found the victim feared imminent serious bodily injury
due to defendant’s charged conduct.
20
Based upon defendant’s version of the events, he touched the victim first by
trying to pick her up, he restrained her legs, grabbed her by her hair, placed his foot on
her buttocks, and pushed her out of the bedroom. Given defendant’s rendition of the
events, the trial court could reasonably conclude the victim feared imminent serious
bodily injury due to defendant picking up the victim, restraining the victim, and pushing
her out of a room while she struggled against him.
Since (1) the trial court could impose the protective order based upon a finding
that the victim was reasonably apprehensive of imminent serious bodily injury, (2) the
evidence supports such a finding, and (3) such a finding can be inferred from the trial
court’s comments about future harm, we conclude the domestic violence protective
order was properly imposed, even though domestic battery is not, in all cases, a crime of
domestic violence.
C. APPROPRIATE FACTORS
1. PROCEDURAL HISTORY
At defendant’s sentencing hearing, after pronouncing defendant’s sentence, the
trial court said it would consider the prosecution’s request for a protective order.
Defendant’s trial attorney argued that a 10-year protective order was excessive, given
defendant was convicted of a misdemeanor, and the order should be valid for only three
years. The trial court said, “Well, I didn’t hear anything on her part that she’s seeking
reconciliation. Are you aware of anything like that?” The prosecutor said, “No. My
understanding is she wants no contact. She always has the right to come back in and
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add this case on calendar, and I will have her do so if she request[s] a change.” The trial
court issued the 10-year protective order. (§ 136.2, subd. (i).)
After issuing the 10-year protective order, the trial court said, “In the event that I
need to make findings under [section] 136.2 for concerning [sic] the continued conduct,
I did watch the trial, I did see the testimony of the witness, and I did observe
[defendant’s] behavior. I would be concerned about repeated contact or by he against
her. I think there’s a possibility that they’re going to have some further contact. It
sounds like there’s a quarter interest in property that the parties are going to need to
resolve, which could itself lead to some sort of conflicts and hostilities, and I’m
concerned about the safety of, actually, both parties.”
2. Analysis
Defendant contends the trial court erred by failing to consider the proper factors
when deciding the 10-year duration of the protective order.
Since we are considering whether the trial court used the proper legal factors, we
apply the independent standard of review. (In re Quoc Thai Pham (2011) 195
Cal. App. 4th 681, 685.) When a court is determining the duration of a protective order,
the court must consider “[(1)] the seriousness of the facts before the court, [(2)] the
probability of future violations, and [(3)] the safety of the victim and his or her
immediate family.” (§ 136.2, subd. (i)(1).)
We start at the end of the list with the third factor—safety. The trial court
expressed concern about the safety of defendant and the victim, if they were to interact
with one another in the future. Specifically, the trial court said, “I’m concerned about
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the safety of, actually, both parties.” Accordingly, we conclude the trial court
considered the issue of the victim’s safety.
The second factor is the probability of future violations. The trial court found
there was a likelihood of “some further contact” due to defendant and the victim sharing
property. The trial court believed the contact could lead “to some sort of conflicts and
hostilities.” The trial court’s comments reflect a finding that there is a probability of
future violations. In particular the trial court found a probability of issues arising during
contact about shared property. As a result, we conclude the trial court properly
considered the factor of likely future violations.
The first factor is the seriousness of the facts before the court. The trial court did
not make an explicit finding regarding the seriousness of defendant’s offense.
However, the seriousness finding is implied in the trial court’s comments regarding
defendant’s and the victim’s future safety. The trial court said it was “concerned about
the safety of, actually, both parties.” The trial court’s comment implies that defendant’s
past conduct was serious in that it presents a risk for future harm if it were to occur
again. Accordingly, we conclude the trial court properly considered the seriousness
factor.
Defendant contends the trial court did not consider the proper factors because,
prior to issuing the protective order, the trial court was primarily concerned with
whether the victim was trying to reconcile with defendant. We disagree that the trial
court was concerned with reconciliation. The trial court expressly said it did not believe
the victim was trying to reconcile with defendant. The trial court gave its findings
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(those discussed ante) after issuing the protective order, so the process may have been
somewhat backward in terms of announcing the findings; however, the trial court still
made the appropriate findings.
D. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support the trial court’s
findings related to the duration of the protective order.
As set forth ante, the three factors for determining the duration of a protective
order are “[(1)] the seriousness of the facts before the court, [(2)] the probability of
future violations, and [(3)] the safety of the victim and his or her immediate family.”
(§ 136.2, subd. (i)(1).) The maximum duration of a protective order is 10 years.
(§ 136.2, subd. (i)(1).) We will not disturb the protective order if there is substantial
evidence supporting the trial court’s findings. (See In re Cassandra B. (2004) 125
Cal. App. 4th 199, 210-211; see also Bookout v. Nielsen (2007) 155 Cal. App. 4th 1131,
1137.)
In defendant’s version of the events, he touched the victim first by trying to pick
her up, he restrained her legs, grabbed her by her hair, placed his foot on her buttocks,
and pushed her out of the bedroom. The victim said she feared any response on her part
would make the situation more dangerous. The foregoing evidence supports the finding
that defendant’s offense was serious because it was not a simple touching, the victim
was grabbed, pushed, and moved. The situation could have easily escalated. The risk
of harm was great, especially given the different ways in which defendant handled the
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victim—picking up, pushing, grabbing. The risk of harm was high, and therefore there
is substantial support for the finding that the offense was serious.
The second element is the probability of future violations. The evidence reflects
defendant and the victim lived together in the victim’s house. After the offense at issue,
defendant was still in the home; he was present when Edwards arrived. Also, defendant
and the victim met one another online, through “mutual friends in the music
community.” Given the shared residence and friends, the trial court could reasonably
conclude defendant and the victim would interact with one another in the future because
their lives were intertwined. Additionally, since defendant claimed the victim was also
violent, the trial court could reasonably conclude future meetings may be hostile, thus
causing defendant to react violently. Accordingly, there is substantial evidence
supporting the trial court’s “future violations” finding.
The third element for the court to consider is the safety of the victim and her
immediate family. As explained ante, there is potential for future harmful contact
between defendant and the victim, due to their intertwined lives and bouts of hostility.
Defendant asserts the victim is a violent person, and the victim asserts defendant is a
violent person. Defendant testified the victim suffers from mental illness, and the
victim testified that defendant displayed “increasingly bizarre behavior.” Given the
violent tendencies involved and other evidence just referred to, there is substantial
evidence reflecting the victim’s safety requires the imposition of a lengthy protective
order.
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In sum, substantial evidence supports the trial court’s findings for the 10-year
duration of the protective order. We conclude the trial court did not err.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
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