IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HYANG LEE, DEFENDANT AND APPELLANT.
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.
P. v. Lee
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 indirectly, until they turned 18, and from contacting their father for seven years. Lee now appeals.
Lee argues the trial court erred by issuing the protective order, asserting that the proper grounds were not met. The court's order as a whole is reviewed for abuse of discretion. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096-1097 (Townsel).) Issuing a protective order may constitute an abuse of discretion if its factual findings are not supported by substantial evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) Substantial evidence means evidence that is reasonable, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)
The legal standards that must be met to justify a protective order issued under the court's inherent powers (e.g., a non-statutory order) are somewhat murky. In Townsel, a case involving the disclosure of juror information (prior to the effective date of statutes addressing the subject), the court found that a protective order was properly drawn to protect the jurors' physical safety and from threats, under circumstances that raised "serious concerns about juror safety." (Townsel, supra, 20 Cal.4th at p. 1097.) The court noted that the defendant had been convicted of murdering one victim "because she was a witness to a previous crime . . . . " (Ibid.) Further, the defendant "was also convicted of attempting to prevent or dissuade a witness." (Ibid.) The trial court's order was justified because of the defendant's history of interfering with the judicial process by killing or threatening witnesses.
In People v. Stone (2004) 123 Cal.App.4th 153, the court considered the propriety of a restraining order issued pursuant to section 136.2, which authorizes the trial court to issue a restraining order when there is "good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur."*fn3 (§ 136.2.) The court held a protective order could not be upheld without a showing of "a threat, or likely threat . . . ." (People v. Stone, supra, 123 Cal.App.4th at p. 160.) In People v. Ponce (2009) 173 Cal.App.4th 378, 384 (Ponce), the court similarly rejected a protective order under the court's inherent power when there was no evidence the defendant had threatened anyone involved in the case.
Respondent suggests that we should look to federal cases, which, of course, are not binding on us. (Ponce, supra, 173 Cal.App.4th at p. 385.) In Wheeler v. United States (9th Cir. 1981) 640 F.2d 1116, the court held that to obtain a protective order after a trial was over, the prosecution must make a strong showing of a "'clear and present danger or a serious and imminent threat'" and must demonstrate that there are no other available alternatives. (Id. at p. 1124.)
Respondent also cites U. S. v. Morris (7th Cir. 2001) 259 F.3d 894 (Morris). In that case, the defendant pled guilty to traveling in interstate commerce to engage in a sexual act with a juvenile. The court conditioned his sentence upon a no-contact order with the victim, and it was upheld upon review. The court emphasized, however, that "the use of no-contact orders must be reserved for rare and compelling circumstances, and we find such circumstances in this case." (Id. at p. 901.)
The court explained: "Morris is endeavoring to withdraw his guilty plea, a future trial is possible and the victim would be a most important witness for the prosecution. Morris has perpetuated his harmful influence in the victim's life by persistently contacting her indirectly by relaying messages through his friends, and directly by telephone and a letter. The purpose of all Morris's communications has been to prolong his presence in the victim's life and to insistently communicate his desire to have an intimate relationship with her in the future, the very type of contact for which he was incarcerated." (Morris, supra,259 F.3d at p. 901.) The court further explained that the victim was "particularly vulnerable because she is a child" and that "[t]he purpose of the no-contact restriction is not to punish Morris, but to protect his victim and her family from further harassment, and reduce the possibility of creating a reluctant witness." (Ibid.)
The Morris court did not specify what standard was required in order to obtain such an order, other than "rare and compelling circumstances." (Morris, supra,259 F.3d at p. 901.) It also involved not just a victim but a future potential witness, thereby implicating the possibility of witness intimidation and the integrity of the justice system. Such concerns are not present in the instant case, and this is an important distinguishing fact. But to the extent Morris can be construed that a protective order can be upheld if it is simply in the victim's best interests, we cannot agree. Under California law, after trial proceedings are concluded, at least some measure of harassment or threat of physical harm must be demonstrated.
Lee argues that "there was no evidence that appellant had harassed or threaten[ed] her children or their father after the criminal charges had been filed against her. Actually, there was no evidence that appellant had even attempted to contact her children or their father. In addition, appellant was incarcerated in state prison. Under these circumstances, there was simply no evidence that supported the trial court's finding that there was a clear and present danger or a serious and imminent threat to appellant's children or their father."
We must agree. The court did not conclude that Lee, who remains incarcerated, posed any risk of physical harm to her husband or children. The district attorney did not argue otherwise, stating that while she was in custody, Lee's husband did not want to have to take the children to visit Lee or have someone else do so, or have them upset by letters or other forms of contact. There was no evidence of harassment or threats after the criminal charges were filed, even before the court issued its initial protective order.
Without substantial evidence to support it, we cannot uphold the order. There are simply no facts to support a showing of "a threat, or likely threat . . . ." (People v. Stone, supra, 123 Cal.App.4th at p. 160) or "serious concerns" about the victims' physical safety absent the order (Townsel, supra, 20 Cal.4th at p. 1097) or even the "rare and compelling circumstances" present in Morris. (Morris, supra,259 F.3d at p. 901.) The facts of the crime and the tender ages of the children involved are not, without evidence of threats or harassment, enough to justify the order.
While we understand the trial court was attempting to protect the victims in this matter, the facts do not justify a criminal protective order under the court's inherent powers. Because we conclude the protective order was not warranted, we need not address Lee's double jeopardy argument.
The order is reversed.
WE CONCUR: O'LEARY, ACTING P. J. IKOLA, J.