THE SUPERIOR COURT OF LOS ANGELES COUNTY (Los Angeles County Super. Ct. No.PA065677)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Penal Code section 136.2, subdivision (a),*fn1 authorizes the trial court in a criminal case, "upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur," to issue orders (generally referred to as "criminal protective orders") including an ex parte no-contact or stay-away order pursuant to Family Code section 6320;*fn2 an order that the defendant or any other person before the court not violate any provision of section 136.1, which prohibits intimidation of victims or witnesses; an order that the defendant have no communication with the victim or a specified witness except through an attorney; and an order protecting the victim of a violent crime from all contact by the defendant.
In People v. Stone (2004) 123 Cal.App.4th 153 (Stone) Division Two of this court construed section 136.2 narrowly, holding restraining orders authorized by this provision "are those aimed at preserving the integrity of the administration of criminal court proceedings and protecting those involved in them. It therefore follows that the required good cause must show a threat, or likely threat to criminal proceedings or participation in them." (Stone, at p. 160.) In an express response to Stone, in 2008 the Legislature added subdivision (h) to section 136.2, which provides, in a case in which a crime of domestic violence is charged, the court may consider, in determining whether good cause exists to issue an ex parte order pursuant to Family Code section 6320, "the underlying nature of the offense charged" and the defendant's history of domestic violence, prior restraining orders and other forms of violence or weapons offenses.
In an aggravated assault case not involving domestic violence may the court issue a criminal protective order, barring any contact between the defendant and the victim and witnesses and directing the defendant to sell or surrender any firearms he or she may possess, solely on information concerning the underlying nature of the charged offense and without any evidence that intimidation or dissuasion of the victim or witnesses has occurred or is reasonably likely to occur? Based on the language of section 136.2 itself and the evolution of that statute during the past 30 years in connection with the Legislature's efforts to strengthen the protection afforded victims of domestic violence, we conclude that, while past harm alone is sufficient for issuance of a criminal protective order in domestic violence cases, when there is no charge of domestic violence, more is required.
Petitioner Michael Babalola was not charged with crimes involving domestic violence; and there was no basis for a good cause belief he had attempted either during or after the commission of the alleged aggravated assaults to intimidate or dissuade his victims, Donald Jones and Catrina Godfrey, from reporting the crimes or testifying against him and no evidence of any likelihood of future intimidation or harm to the victims. Accordingly, respondent superior court erred in issuing a protective order pursuant to section 136.2 in the underlying criminal proceeding. Nonetheless, because the court vacated that criminal protective order in response to our order and alternative writ of mandate, we dismiss Babalola's petition for writ of mandate as moot.*fn3
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at the Preliminary Hearing
On February 25, 2010 a felony complaint was filed against Michael Babalola charging him with two counts of assault with a semiautomatic firearm against Catrina Godfrey and her boyfriend, Donald Jones. (§ 245, subd. (b).) At the preliminary hearing Godfrey testified she and Jones were walking home from a bar during the early morning hours on November 1, 2009 when she began to feel ill. To steady herself, Godfrey put her hand against the window of a building on Foothill Boulevard that housed Babalola's business; Jones and Godfrey's apartment overlooked the back door of the business. According to Godfrey, Babalola came rushing outside, loudly asking her why she was banging on his window. When Godfrey tried to leave, Babalola pushed her against the window and repeatedly hit her with his fist and a handgun.
In his questioning of Godfrey, Babalola's counsel began to develop the defense theme that Godfrey and Jones had been the aggressors in the incident, motivated by racial animus: Babalola is an African-American; his girlfriend and business partner, Julie Brooks, is White; Godfrey and Jones are both White. On cross-examination Godfrey admitted she is standing in front of a Confederate flag in a picture posted on her social networking site profile. She explained, however, the photograph was not intended to express any racial hatred. Rather, she had lived in Alabama for several years, and the flag was given to her by her best friend's grandmother, who had passed away. Godfrey also denied using racial slurs, explaining the words "Fuck Nigger" appeared on her profile after her account was "hacked."
Jones's account of the incident was mostly consistent with Godfrey's. Jones additionally testified he swung at Babalola in an attempt to rescue Godfrey, but Babalola hit him in the head with his gun and knocked him down. When Jones got up, Babalola pointed the gun in his face and told him he was "going to die tonight." Babalola then retreated into his business and locked the door.
Jones testified he had seen Babalola in the alley behind the business approximately 15 times, but neither he nor Godfrey had had any problems with Babalola or Brooks. During cross-examination Jones insisted there was nothing about Babalola or his cross-racial relationship with Brooks that bothered him. Jones denied there was a picture of him on Godfrey's social networking site standing near a burning wood cross, explaining the burning boards were in the shape of an anarchy symbol, not a cross. Jones also claimed the gesture he was making with his fingers in the picture had no meaning.
b. The defense's evidence
Brooks testified she and Babalola live in adjoining units behind two retail business stores they jointly operate. On October 31, 2009, the day of the incident, she had discovered the security cameras and solar panel used for lighting were missing from the building in which the businesses and residences are located. The police officer who investigated told Brooks the theft or disabling of security and lighting equipment is often a precursor to a burglary and suggested she be on alert that evening.
Just after midnight on November 1, 2009 Brooks and Babalola were working when they heard a loud bang and rattle at one of the doors. Babalola went outside and told Godfrey and Jones to leave. Brooks, who had subsequently gone to the door, saw Godfrey suddenly hit Babalola in the head. When Babalola tried to defend himself, both Jones and Godfrey began hitting him. After they cornered Babalola in the entrance way, Babalola pulled a gun out of his pocket. When Jones began to reach under his shirt, Babalola struck him with the gun. Brooks ran inside the store to get her phone while the three others continued to fight. After she found her phone and returned to the entrance, Babalola had already retreated into the store and was talking to the police on his phone. Brooks could hear Godfrey and Jones outside yelling profanity and racial slurs. Brooks also testified she had previously obtained a temporary restraining order after being harassed by Godfrey and Jones.
Babalola appeared at pretrial hearings on March 18, 2010, April 28, 2010 and May 24, 2010. No request for a criminal protective order was made during any of those proceedings. On June 24, 2010, however, at a further pretrial hearing, the court advised Babalola the prosecutor had submitted a proposed protective order for it to consider. The deputy district attorney, who had not participated in the preliminary hearing, explained he was seeking a protective order to prevent any contact between Babalola and the victims given how close they lived to each other and the possibility of "bad blood" between them: "Your Honor, it's my understanding from the facts of this case that the defendant and the victims reside within feet away from each other. I simply want to prevent any contact between them in the form of inappropriate conduct or trying to dissuade people or talking to them or anything negative. I understand that, based on the facts of this case and other facts that were flushed out at preliminary hearing, that there might be some bad blood between [them]."
Babalola's counsel objected, asking that the court set the matter for
a future hearing and then, when the court denied that request,*fn4
contending that Stone, supra, 123 Cal.App.4th 153,
"clearly holds that no protective order shall issue unless there is
some evidence of situations, incidents, attempted contact or contact
after the alleged incident and filing of charges." Noting the
transcript of the preliminary hearing had not been provided to the
court (the judge at this hearing had not presided at the preliminary
hearing) and the prosecutor had apparently read to the court from
summary notes, defense counsel argued no evidence had been presented
that Babalola had threatened or engaged in any other improper contact
with Godfrey and Jones after the November 1, ...