Appeal from an order of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. (Super. Ct. No. 07CF0730)
The opinion of the court was delivered by: Moore, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is defendant Hyang Lee's second appeal regarding the propriety of a criminal protective order. Lee argues that the trial court did not have proper grounds to issue a protective order under its inherent authority, and the court's ruling violated the prohibition against double jeopardy. After careful review, we cannot conclude that the protective order was necessary because there was no evidence of harassment, threats, or physical harm after the charges were filed. We therefore reverse.
FACTS AND PROCEDURAL HISTORY
As we noted in the prior appeal:*fn1 "Early one morning, Hyang Lee, who was suffering from a mental disorder, doused her husband and three children with lighter fluid and attempted to set them on fire." (People v. Lee (Feb. 26, 2009) G040443 [nonpub. opn.] (Lee I).) Pursuant to a plea bargain, Lee was sentenced to seven years in prison. (Lee I, supra, G040443) The trial court also issued a post-sentence protective order pursuant to Penal Code section 273.5, subdivision (i),*fn2 which ordered Lee not to contact her husband or children, who were two, seven and nine years old at the time of the attack, for seven years. The children were allowed to initiate contact with their mother once, and Lee was permitted to ask the trial court to change the order after one year. The propriety of the protective order was the only issue in Lee I.
We found that a protective order under section 273.5 was not appropriate, because she was not convicted of violating that statute, and a protective order must be authorized by the statute under which it is issued. (Lee I, supra, G040443.) Respondent conceded this point, but asked us to affirm the order anyway as a permissible exercise of the court's inherent power to protect the safety and privacy of those involved in court proceedings. We declined the Attorney General's request, concluding that whether such an order should be issued was a matter for the trial court, and we remanded the matter for the trial court to consider whether a protective order should issue. (Lee I, supra, G040443.)
At the hearing on remand, the prosecutor argued that Lee's husband wanted a protective order and the order was warranted because Lee had attempted violence during the offenses for which she was convicted. Lee argued that because there was no evidence of any imminent threat, there were no grounds to issue the protective order.
The trial court granted the order, concluding that a serious danger and imminent threat continued to exist, given defendant's history of violence. The court specifically noted that a "meddling relative" had tried to facilitate contact, but the court had no jurisdiction over that person. The trial court issued an order prohibiting Lee from contacting her children, directly or ...