People v. Peppers-Valdovina CA1/2 ( 2022 )

Filed 4/19/22 P. v. Peppers-Valdovina CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162575
v.
MARKIQUES PEPPERS- (Sonoma County
VALDOVINA, Super. Ct. Nos. SCR741511-1,
SCR743147-1)
Defendant and Appellant.
Defendant Markiques Peppers-Valdovina was sentenced to three years
and eight months in state prison after he pleaded guilty to two counts of
violating a prior domestic relations protective order and stay away order
(Pen. Code,1 § 166, subd. (c)(4)) and one count of resisting arrest by threats
and violence (§ 69, subd. (a)). At sentencing, the trial court issued a post-
conviction criminal protective order under section 136.2 requiring defendant
to stay away from the victim, Jane Doe, and their one-year-old daughter. The
sole issue on appeal is whether the trial court lacked statutory authority to
include the daughter in the protective order. We shall reverse the criminal
protective order as to defendant’s daughter because it is unsupported by the
evidence.
1 All undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
We briefly summarize the procedural history of this case, which
encompasses the negotiated disposition of two criminal cases.
In the first case (SCR741511-1), on December 15, 2020, defendant
pleaded guilty to one count of felony contempt of court for violating a
protective order and stay away order from Jane Doe. (§ 166, subd, (c)(4).)
Before he could be sentenced to the agreed upon probation, new charges were
filed against him.
That was the second case (SCR743147-1). On April 2, 2021, defendant
pleaded guilty to another felony count of contempt in connection with the
protective order and stay away order from Jane Doe (§ 166, subd, (c)(4)), and
one count of felony resisting arrest by threats and violence. (§ 69, subd. (a).)
At sentencing, the trial court issued a criminal protective order
requiring defendant to stay away from Jane Doe and their one-year-old
daughter. Defendant’s counsel objected to the inclusion of the child in the
protective order, arguing that the “circumstances in [this] case . . . had
nothing at all to do with the one-year-old daughter” and there was thus no
“reasonable rational basis” to preclude defendant from having contact with
the child.2 Defendant’s counsel also asserted that Jane Doe, the child’s
mother, did not have custody of the daughter, who lived with her
grandparents in a different county.
The prosecutor responded that the “domestic violence incident occurred
right outside of the apartment where Jane Doe and her daughter were
staying,” and the daughter “was merely inside the apartment.” She argued
that “there’s a basis for the child to be protected given the child was in close
2 In this part of the transcript, the prosecutor repeatedly referred to
this case as “case 147,” meaning the case that ended in number “147.”
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proximity in [this] case 147.” She also stated that the child resided with Jane
Doe and Jane Doe’s father.
The court asked whether there were “any family law orders that allow
[defendant] visitation” of the child “separate and apart” from Jane Doe. This
question did not appear to be resolved at the sentencing hearing. The
prosecutor asked the court to check “Box 16-B” on the form criminal
protective order allowing for peaceful conduct in future family court orders
for the safe exchange of the child “if that becomes an issue.”
The court replied, “That seems to me to be the answer here . . . .
Because of this situation, there should be family law orders or some written
agreement with the parties regarding the safe exchange once he finishes his
state prison term. [¶] So I do have the CPOs [criminal protective orders] in
front of me. I’m going to check the Box 16 that says may have peaceful
contact for the safe exchange of the children and court ordered visitation.
Okay?” The court clarified in response to a question from the clerk that it
intended box “16” not “16-B,” and then signed the orders, stating “So it’s a
stay away from Jane Doe and stay away from the one-year-old except for
family law orders.”
On the form Judicial Council order issued by the court, Jane Doe and
the one-year-old are each listed as a “protected person,” and defendant is to
have no contact of any type with either of them, or through a third party, or
come within 100 yards of either of them (as per boxes 12, 13, and 14). 3
3 Court and counsel were referring to mandatory Judicial Council Form
CR-160, “Criminal Protective Order – Domestic Violence (CLETS – CPO).”
Box 16, which the court checked, states defendant “may have peaceful contact
with the protected persons named above, as an exception [sic] to the ‘no-
contact’ or ‘stay-away’ provisions in item 12, 13, or 14 of this order, only for
the safe exchange of children and court-ordered visitation as stated in:” and
then there are two boxes, “a” and “b.” The court checked neither box. Box “a”
3
Defendant obtained a certificate of probable cause, and this appeal was
timely filed.
DISCUSSION
When a defendant has been convicted of a crime involving domestic
violence, as that term is defined in Family Code section 13700 or Family
Code section 6211, the court, at the time of sentencing, “shall consider issuing
an order restraining the defendant from any contact with a victim of the
crime. The order may be valid for up to 10 years, as determined by the court.
. . . It is the intent of the Legislature in enacting the subdivision that the
duration of a 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 a victim and the victim’s immediate family.” (§ 136.2, subd.
(i)(1) (§ 136.2(i)(1)).)
For purposes of this subsection, “victim” means “any natural person
with respect to whom there is reason to believe that any crime . . . is being or
has been perpetrated or attempted to be perpetrated.” (§ 136, subd. (3).4)
Here defendant does not challenge the protective order for Jane Doe.
The sole dispute is whether the one-year-old child was also a “victim” under
the statute. The interpretation of a statute, such as section 136.2, is a
question of law, subject to de novo review. (People v. Race (2017) 18
Cal.App.5th 211, 217 (Race).) With respect to the issuance of the protective
is for an already issued “Family, Juvenile, or Probate court order,” with space
for the court to fill in the case number and the date of issuance, spaces that
were left blank. Box “b” is for “any Family, Juvenile or Probate court order
issued after the date this order is signed.” That box was left blank, too.
The definition of “victim” as quoted in the text comes after prefatory
4
language in the statute that states “[a]s used in this chapter.” (§ 136.)
Sections 136 and 136.2 appear in the same chapter of the Penal Code.
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order, we “ ‘ “ ‘imply all findings necessary to support the judgment, and our
review is limited to whether there is substantial evidence in the record to
support these implied findings.’ ” ’ ” (Ibid.)
First, we describe some additional factual background, drawn from the
probation office’s reports in defendant’s two cases.
Additional Background
In the first case (SCR741511-1), police responded on October 4, 2020, to
an address on Russell Avenue after a call from Jane Doe reporting her
boyfriend (defendant) had hit her on the head. She reported that she was a
few weeks pregnant, might need an ambulance, did not feel safe leaving the
residence with defendant present, and that there was an active restraining
order against him. Officers could not locate defendant at the scene. Doe was
taken to the hospital where she later gave a statement. Doe said she and
defendant had been in a dating relationship for about three years, they had a
one-year-old child in common, they did not live together and were both
transient. She and defendant had been staying at his brother’s apartment for
“multiple days.” Defendant prevented her from leaving and threatened to
“break her neck;” at one point he said he would kill her if she left. The day
before the incident, when she attempted to leave, he grabbed her left bicep
and caused visible bruising. In another incident the day before, when
defendant heard Doe tell another person who resided at the apartment that
she was going to leave, defendant grabbed her and punched her, causing her
to sustain hearing loss in one ear, and a bruise on her jaw and her forearm.
There was no mention of the child being present at any of these incidents.
In the second case (SCR743147-1), police officers went to the “600
block” of Russell Avenue responding to a “reported domestic disturbance” on
December 19, 2020. There the officers found Jane Doe, who was crying and
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had swelling and a “one-inch blue bruise” on her cheek. She reported that
defendant, her ex-boyfriend, punched her in the face several times and then
barricaded himself in the laundry room of the apartment complex. Officers
searched for him but could not find him. Doe stated she and defendant had
been in a dating relationship until June of that year, they had a one-year-old
child, and Doe had full custody. According to the probation office’s report,
“Doe said the child did not witness the following incidents.” Doe reported
that she was visiting defendant’s sister, who lived at the apartment complex,
and Doe believed defendant was in custody at the county jail. But when she
went outside to smoke a cigarette at about 8:13 p.m., defendant arrived
suddenly. They argued. He punched her in the face, lifted her off the ground
by grabbing her under the chin and threatened to put her in the hospital or to
kill her if he didn’t put her in the hospital. Doe called law enforcement but
couldn’t provide her location before defendant grabbed her cell phone. She
ran around the corner for safety, and he fled. Doe thought defendant was on
methamphetamine and said his behavior was “paranoid and crazy.” Doe said
she had been battered by defendant “approximately 100 times during their
three-year relationship.”
Shortly after midnight, Doe contacted law enforcement again because
she saw defendant peeking through the windows. An officer responded but
could not locate defendant. Doe called law enforcement about 3:00 a.m. to
say she had heard defendant outside. An officer arrived and found him in a
tree in “the common area of the apartment complex.” The probation officer’s
report relates that “[a]n officer subsequently transported the victim and her
child from the scene.” Eventually, multiple officers set up a perimeter and
the Santa Rosa Police Department hostage negotiation team responded and
tried to talk defendant down from the tree. He made statements that they
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would have to shoot him to get him to come down, and that he knew he was
going to jail so he would stay in the tree. Family members tried to persuade
him, but without success. “Ultimately, based on the fact that the victim was
safe in a different county, the emotional volatility of the relatives, and the
defendant’s violent history with law enforcement, the officers ceased from
trying to arrest [defendant] that day.”
Protective Order Under Section 136.2(i)(1)
Defendant contends that the criminal protective order as to his one-
year-old child was not supported by substantial evidence because the child
was not present and did not witness the acts of domestic violence. While he
acknowledges the applicable definition of “victim” is broad, defendant argues
that no published case supports a post-conviction criminal protective order
for a child who, as here, was not physically present, and where there is no
evidence that defendant’s acts adversely affected her or that defendant
harmed or attempted to harm her.
The Attorney General relies on two cases “as instructive” in support of
its argument that defendant’s one-year-old daughter is a victim for purposes
of section 136.2(i)(1). We consider them in turn, but as will be seen, the facts
in those cases are quite different.
In Race supra, 18 Cal.App.5th 211, the defendant was charged with two
counts of lewd conduct upon a child under age 14, with the victims identified
as defendant’s daughter and his niece. Defendant pleaded no contest to the
criminal count involving his niece, in exchange for dismissal of the count
against his daughter. At sentencing, the trial court issued criminal stay
away orders under section 136.2 as to both of the girls. Race appealed,
contending that there was no authority to issue the protective order as to his
daughter since she was not a victim of the crime to which he had pleaded. In
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rejecting the claim, the Court of Appeal held that “the term ‘victim’ pursuant
to section 136.2 criminal protective orders must be construed broadly to
include any individual 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 the instant case, sufficient evidence
supported the criminal protective order issued with respect to defendant’s
daughter.” (Id. at p. 219.) In Race, such evidence included the defendant’s
stipulation that the police report and the complaint provided a factual basis
for the plea (documents which reflected the daughter’s disclosure that
defendant had sexually assaulted her and engaged in other lewd acts) and an
officer’s testimony at the preliminary hearing as to defendant’s criminal acts
against his daughter. The Court of Appeal held that this was sufficient
evidence to support the trial court’s issuance of a stay away order from the
daughter. (Id. at p. 220.) In so concluding, the court stated, “we hold that in
considering the issuance of a criminal protective order, a court is not limited
to considering the facts underlying the offenses of which the defendant finds
himself convicted, regardless of the execution of a Harvey5 waiver. Rather, in
determining whether to issue a criminal protective order pursuant to section
136.2, a court may consider all competent evidence before it.” (Id. at p. 220.)
The other case the Attorney General relies on—People v. Clayburg
(2012) 211 Cal.App.4th 86—concerns a different statutory provision that
governs post-conviction protective orders after convictions for stalking
(§ 646.9, subd. (k)(1)). The trial court in Clayburg ordered defendant to have
no contact with her former husband (B.) or with her minor daughter, who was
then 13 years old and whose primary custodial parent was her father.
Although the daughter was not a named victim in the information, the Court
5 People v. Harvey (1979) 25 Cal.3d 754.
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of Appeal found that the daughter “suffered emotionally and . . . was
traumatized by [the defendant]’s conduct. She was the recipient of a
previously issued civil restraining order that she carried on her person.” (Id.
at p. 91.) In Clayburg there was abundant evidence about the daughter,
including evidence about B. and the daughter listening to a telephone
message in which the defendant said: “ ‘The devil wants you. God is going to
let him get you and you are going to like it because you are [the devil’s]
brother.’ . . . Daughter testified that the message ‘made [her] scared.’ ” (Id. at
pp. 90-91.) There was also evidence that on Christmas Day, “someone spread
steer manure” all over B.’s porch and driveway, and a gift from the defendant
to the daughter was found hanging on the front door-knob. The defendant
later “told daughter that she was responsible for the manure.” And there was
much more, including daughter awakening at 1:30 a.m. to shattered glass
windows in B.’s dining room, bedroom, and French doors, and B. seeing the
defendant running down the driveway and her vehicle driving away.
“Daughter testified that these incidents made her ‘feel scared and just
nervous.’ . . . ‘I was worried maybe my windows would be broken, and I was
afraid it (the broken glass) was going to go through our blinds.’ Because of
her fear, daughter sometimes stayed at a relative’s house.” (Id. at p. 90.)
Against this background, the majority opinion in Clayburg construed
these two sentences of section 646.9, subdivision (k)(1): “ ‘The court shall
consider issuing an order restraining the defendant from any contact with the
victim, that may be valid for up to 10 years, as determined by the court.
[First sentence.] It is the intent of the Legislature that the length of any
restraining order 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. [Second sentence.]’ ” Acknowledging that the statute
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“could have been drafted with greater precision,” the Clayburg majority
believed that the “Legislature intends that the courts protect a child of a
named victim. The second sentence, to a certainty, shows that the
Legislature has a legitimate concern for the ‘safety’ of a child of a named
victim. We also observe that the actual definition of the crime of stalking
speaks to the fear suffered by a member of the named victim’s ‘immediate
family.’ (§ 646.9, subd. (2).) Our construction of the statute ‘promotes
justice.’ ” (Id. at p. 89.)
The Attorney General does not address People v. Delarosarauda (2014)
227 Cal.App.4th 205, 211-212 (Delarosarauda), a case involving section
136.2(i)(1) protective orders, in which the appellate court rejected the
Clayburg majority’s construction of similar language in section 646.9: “The
Clayburg majority held that the second sentence modified the first sentence,
and expanded the meaning of ‘victim’ in the first sentence to include ‘a
member of the immediate family of a stalking victim . . . who suffers
emotional harm.’ . . . We read the second sentence to mean what it says: the
court should consider, among other factors, the ‘safety of the victim and his or
her immediate family’ in determining the length of the restraining order
authorized in the first sentence. Nothing suggests the second sentence also
modifies the scope of the restraining order. As noted by Justice Perren in the
Clayburg dissent, if the term ‘victim’ in the first sentence included a child of
the family, the second sentence would have no need to refer to ‘the victim and
his or her immediate family.’ ’’ (Delarosarauda at p. 212.)6
6 In Delarosarauda, the defendant was convicted of corporal injury to a
spouse or coinhabitant, assault by means likely to produce great bodily
injury, assault with a deadly weapon, and personal use of a deadly and
dangerous weapon, a rope. But, in “contrast” to Clayburg, “no evidence
suggests” the defendant Delarosarauda had targeted or harmed his son or
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Based on our reading of the statute, and the authorities cited by the
parties, a victim, for purposes of a section 136.2(i)(1) protective order, is any
person as to whom there is reason to believe that any crime has been
committed. (§ 136, subd. (3); Race, supra, 18 Cal.App.5th at p. 219.) Here
the record does not support the trial court’s conclusion that the one-year-old
child was a proper subject of the criminal protective order. It is undisputed
there is no evidence that the daughter was present, let alone involved, in the
October 4, 2020 incident. As to the events of December 19, 2020, the only
evidence concerning the child comes from the statement in the probation
officer’s report that “Doe said their child did not witness the following
incidents.” Further, the December 19 incident occurred during the evening
outside of an apartment where Jane Doe and her daughter were visiting
defendant’s sister, and there was no evidence the child was outside. Thus, we
cannot say there is “any reason to believe that any crime” was being
“perpetrated” or “attempted” by defendant against the child. (§ 136, subd.
(3).)
stepdaughter, and “absent evidence from which the trial court could
reasonably conclude that appellant had harmed or attempted to harm” them,
the court “lacked authority” to issue a protective order against the children
under section 136.2(i)(1). (Delarosarauda, supra, 227 Cal.App.4th at p. 212.)
In any event, Delarosarauda suggested in dicta that had a post-conviction
protective order been sought in Clayburg under section 136.2(i)(1), one could
have issued, because the “evidence established the defendant stalked the
named victim and the victim’s child, causing both to suffer emotional harm,”
thus bringing the child within the statutory definition of victim, as we have
quoted above, under section 136, subdivision (3) (“any natural person with
respect to whom there is reason to believe that any crime . . . is being or has
been perpetrated or attempted to be perpetrated”). (Delarosarauda, supra, at
p. 212.)
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Unable to counter the absence of evidence, the Attorney General notes
that even when a child is not the primary target of domestic violence, she can
be harmed by seeing and hearing violence.7 This proposition is indisputable.
But there is no evidence that happened in the December 19 incident. The
Attorney General speculates that the one-year-old “could have heard it,” that
she might have seen defendant peeking into windows, and that she “would
have seen” Jane Doe’s bruising, crying and distress, but speculation is not
“some evidence” from which the court could find that the child was an
“individual against whom . . . defendant had committed or attempted to
commit some harm.” (Race, supra, 18 Cal.App.5th at p. 219.)
DISPOSITION
The matter is remanded to the trial court to revise the criminal
protective order so that defendant’s and Jane Doe’s daughter is not listed as a
protected person. In all other respects, the judgments are affirmed.
7 The Attorney General cites In re T.V. (2013) 217 Cal.App.4th 126, 134
(“[e]xposing children to recurring domestic violence may be sufficient to
establish jurisdiction under [Welfare and Institutions Code] section 300,
subdivision (b)”) and Welfare and Institutions Code section 18290 (legislative
findings and declaration on domestic violence, including that “[c]hildren, even
when they are not physically assaulted, very often suffer deep and lasting
emotional effects”).
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A162575, People v. Peppers-Valdovina
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