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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JARED MCCART,

Defendant and Appellant.

 B320152

 (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 Attorney General, Wyatt E. Bloomfield

and Lindsay Boyd, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

The trial court convicted appellant Jared McCart of one 

count of robbery after he and another man stole a truck. The 

trial court sentenced 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 lacked 

authority to issue it. Respondent agrees. We conclude that the 

court erred in granting the restraining order.

PROCEDURAL AND FACTUAL BACKGROUND1

On October 3, 2020, Walter Spohn observed McCart and 

another man attempting to steal Spohn’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 and 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 plead no 

contest to one count of robbery (Pen. Code, § 211)2 in exchange 

for a sentence of two years in prison. The trial court accepted 

his plea and sentenced him to the agreed-upon prison term.

Relying on section 136.2, the court also issued a restraining order 

requiring McCart to stay away from and have no contact with 

Spohn for 10 years. McCart timely appealed.

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 proceeding 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 restraining 

order. However, section 136.2 is limited ‘to the pendency of [a] 

criminal action’ 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) 123 

Cal.App.4th 153, 159.) Generally, a “trial court has jurisdiction 

to issue [a section 136.2 protective 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 proceedings and as 

prejudgment orders”]; Stone, supra, at p. 159 [“[a]lthough 

section 136.2 does not 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 this general rule, none apply here. (Cf. § 136.2, 

subd. (i)(1) & (2) [permitting post-proceeding restraining orders 

in domestic violence cases]; People v. Robertson (2012) 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 have concluded.

We are not aware of any other statute authorizing a

restraining 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 violence cases]; § 1202.05 [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 acted, 

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.) 

Even assuming the court had such inherent authority, the

prosecutor here made no showing justifying the restraining 

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 sufficient to justify the trial court’s action.’ ” 

(Robertson, supra, 208 Cal.App.4th at p. 996.)

For these reasons, the restraining order must be reversed.
5

DISPOSITION

The restraining order is reversed. The judgment 

is modified to remove 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 forward certified copies of the amended 

abstract of judgment to the appropriate authorities. In all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.