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People v. Caceres

California Court of Appeals, Second District, First Division

September 12, 2019

THE PEOPLE, Plaintiff and Respondent,
AXEL EFREN CACERES, Defendant and Appellant.

          APPEAL 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.

          Xavier 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.

          BENDIX, J.

         Axel 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[1] 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.

         We 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.


         At the 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.


         An 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. (b)(1)).

         Caceres 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 protective order.

         For the 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), [2] 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.

         Caceres timely appealed.


         A. The Trial Court Properly Issued The Protective Order

         Caceres 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 incorrect.

         As 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.

         Section 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).)

         Family 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 ...

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