18 Cal. App. 5th 211
Cal. Ct. App. 5th2017Background
- Defendant Timothy Rueben Race pled no contest to attempted lewd and lascivious acts on a child under 14 (lesser included of count 2 — his niece); count 1 (his daughter) was dismissed as part of the plea agreement.
- Police reports and preliminary hearing testimony alleged separate sexual assaults on defendant's then-12-year-old daughter and his niece; the daughter reported oral contact and digital/genital contact; the niece reported multiple instances of touching, being pinned, and other sexual contact.
- At sentencing the trial court imposed the upper term (4 years), awarded 213 days actual custody credit but no conduct credit (denying the 15% limitation argument), and issued 10-year criminal protective orders under Penal Code § 136.2(i)(1) for both the daughter and the niece.
- Defendant challenged (on appeal) issuance of the protective order as to his daughter (arguing she was not a “victim” of a convicted offense), the limitation on conduct credits under § 2933.1, and minute order inaccuracies about which count he pled to.
- The trial court had before it police reports, the complaint, and preliminary hearing testimony reflecting allegations against the daughter; defendant executed a Harvey waiver and stipulated the police report/complaint could provide a factual basis for the plea as to the admitted counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could issue a § 136.2(i)(1) criminal protective order as to the daughter even though defendant did not plead to the count charging her | People: § 136 defines “victim” broadly; court may issue protective order for anyone there is reason to believe was harmed or targeted; competent evidence supported order | Race: Daughter is not a “victim” of any offense of which he was convicted; protective order thus unauthorized | Held: Authorized. § 136’s broad definition permits protective orders for persons there is reason to believe were harmed; court may consider competent evidence before it beyond only convicted-count facts. |
| Whether the trial court was limited by defendant’s Harvey waiver from considering facts underlying dismissed count when issuing the protective order | People: Court may consider all competent evidence before it when deciding protective orders | Race: Harvey waiver/stipulation precluded consideration of facts underlying count 1 for purposes other than sentencing | Held: Harvey waiver did not bar the court from considering competent evidence relating to the dismissed count when deciding a § 136.2 protective order. |
| Whether issuance of the protective order violated due process or was functionally equivalent to termination of parental rights | People: Defendant had opportunity to contest order; statute provides postconviction remedies and intercourt mechanisms for contact | Race: Order effectively terminated parental rights without due process | Held: No due process violation; protective order is not equivalent to parental-rights termination and may be rescinded or modified postconviction under statutory mechanisms. |
| Whether defendant’s custody/earnings credits were properly calculated under § 2933.1 and whether minute orders correctly reflect the plea | People: Court applied § 2933.1 restriction at sentencing; minute orders reflect proceedings | Race: Court erred limiting conduct credits to 15% under § 2933.1; minute orders incorrectly reference count 1 instead of count 2 lesser included plea | Held: Remanded — recalculate and award custody credits without § 2933.1 limitation; correct minute orders to reflect plea to lesser included offense of count 2. |
Key Cases Cited
- People v. Delarosarauda, 227 Cal.App.4th 205 (distinguishes when protective orders may issue for nonconvicted household members; requires some evidence of harm or attempted harm)
- People v. Beckemeyer, 238 Cal.App.4th 461 (broad statutory definition of “victim” supports protective order for persons not named in convicted count where evidence shows crime against them)
- People v. Therman, 236 Cal.App.4th 1276 (court may imply findings that support issuance of protective order when record shows abuse within meaning of domestic-violence statutes)
- People v. Trujillo, 60 Cal.4th 850 (failure to object below can forfeit appellate review of certain sentencing/ancillary orders)
- People v. Harvey, 25 Cal.3d 754 (defendant’s waiver as to dismissed counts may be used by court for sentencing considerations)