California Court of Appeals, Second District, First Division
from a judgment of the Superior Court of Los Angeles County,
No. NA106460 Laura L. Laesecke, Judge.
Melissa J. Kim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney
General, Susan Sullivan Pithey and Mary Sanchez, Deputy
Attorneys General, for Plaintiff and Respondent.
Caceres appeals from the judgment after his conviction for
criminal threats against E.S.J., the mother of his daughter.
Caceres contends his crime was not one “involving
domestic violence” as required under Penal
Code section 136.2, subdivision (i)(1), and
thus the trial court erred in issuing a protective order
forbidding Caceres from contacting or approaching E.S.J. He
further argues that, under People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), the
trial court violated his right to due process by imposing
court assessments and a restitution fine without first
ascertaining his ability to pay.
conclude that Caceres's threats against his child's
mother constitute domestic violence under Family Code section
6211, a statutory section expressly cross-referenced in
section 136.2, subdivision (i)(1), and therefore the trial
court properly issued the protective order. We further
conclude that the due process analysis in
Dueñas does not support its broad holding,
and it is distinguishable on its facts from this case.
Accordingly, we affirm the judgment.
preliminary hearing, E.S.J. testified that she had dated
Caceres for about seven years and they had a daughter
together. One night around midnight, Caceres arrived at
E.S.J.'s apartment and knocked at the door, yelling that
if she did not open it he would kill her. E.S.J. told him she
would call the police if he did not go away, and he said,
“ ‘Go ahead and call them. By the time they get
here, I will have chopped you up.' ” After about 10
minutes of yelling and knocking, Caceres left. As he was
leaving, E.S.J. saw he was holding “the point of a
knife” in his hand.
information charged Caceres with one count of criminal
threats against E.S.J. (§ 422, subd. (a)), and one count
of violating a domestic violence protective order with a
prior conviction for violating a court order (§ 166,
subd. (c)(4)). The information alleged that Caceres used a
knife in committing the charged offenses (§ 12022, subd.
pleaded no contest to the criminal threats charge, and the
trial court found him guilty. Pursuant to plea negotiations,
the trial court dismissed the count for violating a
criminal threats conviction, the trial court denied probation
and sentenced Caceres to 16 months in state prison with 924
days of custody and conduct credits. The trial court imposed
a $40 court operations assessment (§ 1465.8, subd.
(a)(1)), a $30 criminal conviction assessment (Gov. Code,
§ 70373),  and a $300 restitution fine (§
1202.4, subd. (b)). The trial court imposed and stayed a $300
parole revocation fine. Defendant was served in open court
with a domestic violence criminal protective order pursuant
to section 136.2, subdivision (i)(1), barring him from
contacting or coming within 100 yards of E.S.J.
Trial Court Properly Issued The Protective Order
argues that the crime for which he was convicted, criminal
threats, was not a “crime involving domestic violence,
” as required to subject him to a protective order
under section 136.2, subdivision (i)(1). Caceres is
relevant here, section 136.2, subdivision (i)(1) provides
that “[i]n all cases in which a criminal defendant has
been convicted of a crime involving domestic violence as
defined in [Penal Code] Section 13700 or in Section 6211 of
the Family Code, ” the trial court, “at the time
of sentencing, shall consider issuing an order restraining
the defendant from any contact with a victim of the
crime.” Thus, section 136.2, subdivision (i)(1) applies
to crimes involving domestic violence as defined under either
section 13700 or Family Code section 6211.
13700 defines “ ‘[d]omestic violence' ”
as “abuse committed” against specified persons,
including a “person with whom the suspect has had a
child or is having or has had a dating...
relationship.” (§ 13700, subd. (b).) “
‘Abuse' ” is defined as, among other things,
“placing another person in reasonable apprehension of
imminent serious bodily injury to himself or herself, or
another.” (Id., subd. (a).)
Code section 6211 similarly defines “ ‘[d]omestic
violence' ” as “abuse perpetrated”
against specified persons, including “[a] person with
whom the [defendant] is having or has had a dating...
relationship” or “with whom the ...