Filed 1/26/23 P. v. McCart CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE

,

Plaintiff and Respondent,

v.

JARED M C CART

,

Defendant and Appellant. B 320152

(Los Angeles County Super. Ct. No. PA095386 )

APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Hilleri G. Merritt, Judge. Affirmed
and modified as to the judgment and reversed as to the order

. Debbie Yen , under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General of California

, Lance E. Winters, Chief Assistant Attorney General

, Susan Sullivan Pithey, Assistant Atto rney General

, Wyatt E. Bloomfield
and Lindsay Boyd, Deputy Attorney s General , for Plaintiff
and Respondent.2 The trial court convicted a ppellant Jared McCart of one count of robbery after he and another man stole a truck. The
trial court sentenc ed appellant to two years in prison and issued

a 10

- year restraining order in favor of the victim of the crime.
McCart appeals the order, arguing the trial court lack ed authority to issue it

. Re spondent agrees

. We conclude that the court erred in granting the restraining order

.

PROCEDURAL AND FACTUAL BACKGROUND 1
On October 3, 2020, Walter Spohn observed McCart and another man attempting to steal S p ohn’s truck

. When Spohn
confronted the two men, they “started hitting” him

. Spohn was pushed to the ground and dislocated his knee. McCart smashed Spohn’s cell phone an d grabbed the keys to the truck. When
McCart’s cohort’s car would not start, McCart used Spohn’s truck to push the car up the street. As a result of this incident, McCart agreed to ple a d no contest to one count of robbery (Pen

. Code , § 211) 2 in exchange
for a sentence of two years in prison. The trial court acce pted
his plea and sentenced him to the agreed

- upon prison term

. R elying on section 136.2, the court also issued a restrai ni ng order requiring McCart to stay away from and have no contact with Spohn for 10 years. McCart timely appeal ed

.

1 We conclude this appeal is suitable for resolution by memorandum opinion pursuant to standard 8.1 of the California Standards of Judicial Administration.

2 All further statutory references are to the Penal Code.3 DISCUSSION “[D] uring the pendency of a criminal p roceeding when
the court has a ‘ good cause belief that harm to, or intimidation

or dissuasion of, a victim or witness has occurred or is reasonably likely to occur,’ the court is authorized to issue a restra ining
order. How ever, section 136.2 is limited ‘ to the pendency of [a]
criminal ac tion’ because section 136.2 ‘ is aimed at protecting only “ victim[s] or witness[es]. ” ’ ” ( People v. Selga ( 2008) 162 Cal.App.4th 113, 118 , quoting People v. Stone ( 2004) 12 3 Cal.App.4th 153, 159 .) Generally, a “ trial court has jurisdi ction
to issue [a section 136.2 prote c tive order] only during ‘ “ the pendency of [a ] criminal action ” ’ before [the court] .” ( People v.
Ponce (2009) 173 Cal.App.4th 378, 382 ( Ponce ); see Selga,

supra , at p. 119 [ section 136.2 orders generally are “operative only during the pendency of the criminal procee dings and as prejudgment orders ” ]; Stone

, supra , at p. 159 [“ [a] lthough
section 136.2 does n ot indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed”].) Although section 136.2 provides some exceptions to th is general rule, none apply here. ( Cf. § 136.2, subd. (i) (1) & (2) [permitting post

- proceeding restraining orders in domestic violence cases]; People v. Robertson (2 012) 208 Cal.App.4th 965, 996 ( Robertson ) [same] .) Thus, section 136.2 does not grant authority to issue a restraining order after criminal proceedings against a defendant ha ve concluded

. W e are not aware of any other statut e authorizing a restrain in g order that could apply under the circumstances
of this case

. ( Cf. , e.g., § 646.9, subd

. (k) [ restraining order
valid for up to 10 years in stalking cases]; § 1203.097, subd

. (a)4

[ authorizing three

- year restraining order as part of probation granted in domestic vio lence cases]; § 1202. 0 5 [ at sentencing for
certain sex

- based offenses against a minor, court may prohibit
visitation between minor victim and an imprisoned defendant].) Finally, although in many contexts “ a court has inherent authority over an area where the Legislature has not ac ted,
this does not authorize [the court’s] issuing orders against defendants by fiat or without any valid showing to justify the
need for the order.” ( Ponce, supra , 173 Cal.App.4th at p. 384.)
E ven assuming the court had such inherent authority

, t he

pros ecutor here made no showing justifying the restrai ni ng order. Rather, the prosecutor requested the order based solely

on Spohn’s stated concerns about future violence. But “ ‘[ a ] prosecutor’ s wish to have such an order, without more, is not

an adequate showing suffic ient to justify the trial court’ s action. ’ ” ( Robertson

, supra , 208 Cal.App.4th at p. 996

. ) For these reasons, the restraining ord er must be reversed

.5 DISPOSITION The restraining order is reversed. The judgment
is modified to remo ve any reference to a restraining order

or protective order issued in this case. The court is further
directed to prepare an amended abstract of judgment removing the requirement that McCart “[o]bey the protective order issued
in this

. . . case,” and for ward certified copies of the amended
abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED

.

R OTHSCHILD, P. J. We concur:

BENDIX , J.

WEINGART , J.