Filed 11/21/22 P. v. Franco CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY FRANCO,

Defendant and Appellant.

 D080000

 (Super. Ct. No. SCS300168)

APPEAL from a judgment of the Superior Court of San Diego County, 

Michael J. Popkins, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Following Anthony Franco’s guilty plea to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 2)1 and his admission to 

enhancement allegations that he personally inflicted great bodily injury 

(§ 12022.7, subd. (e)) on victim R.S. under circumstances involving domestic 

violence, the court sentenced Franco to a stipulated term of 15 years total. 

The court also issued a 10-year protective order naming as protected parties 

R.S. and her daughter with Franco, E.F. 

Franco only appeals the protective order, contending that: (1) the order 

is overbroad and should be modified to exclude daughter E.F. from its scope 

because she was not a “victim,” her inclusion as a protected party has no 

statutory basis, and the order is unconstitutionally overbroad; and (2) the 

court erred in applying a preponderance of the evidence standard instead of a 

clear and convincing standard.

We disagree with Franco’s contentions and conclude the court properly 

issued the protective order under section 136.2, subdivision (i)(1) because 

E.F. is a “victim” as broadly defined by statute. We further conclude that

Franco has failed to establish any reversible error as to the burden of proof 

applied by the trial court. Accordingly, we affirm the judgment and 

protective order. 

FACTUAL AND PROCEDURAL BACKGROUND

R.S. and Franco began dating in 2016, and their daughter E.F. was 

born in October 2017. They had an on-and-off relationship punctuated by 

violent incidents, including times when Franco slapped R.S. and pulled her 

hair. In January 2018, R.S. had to get stitches in her eyebrow because 

1 Further statutory references are to the Penal Code unless otherwise 

stated.
3

Franco punched her in the face. After R.S. sought a restraining order against 

Franco, he sent her a picture of a gun and threatened to kill her. 

In early April 2018, Franco got angry in R.S.’s apartment when she 

asked him not to smoke methamphetamine around E.F., who was still an 

infant. Franco pushed R.S., then beat her until she lost consciousness. A

week later, they got into another argument in R.S.’s bedroom after Franco

accused R.S. of infidelity. At one point Franco drew a gun and pointed it at 

R.S.’s forehead at close range. R.S. swatted the gun away, but Franco raised 

it again at R.S.’s chest with his finger on the trigger. R.S. turned just before 

Franco shot her in the arm. E.F. was in the bed nearby in the same room 

during the incident, and Franco picked her up with one arm while holding 

the loaded gun in his other hand. He put E.F. on the sofa, but she rolled 

down onto the floor. R.S. suffered a shattered humerus from being shot in 

the arm and later required surgery. 

After being charged with several counts in connection with the 

shooting, including child abuse as to E.F. (§ 273a, subd. (a); count 4), Franco 

pled guilty to one count of assault with a semi-automatic firearm (§ 245, 

subd. (b); count 2) and admitted to enhancement allegations that he 

personally inflicted great bodily injury (§ 12022.7, subd. (e)) on R.S. under 

circumstances involving domestic violence.2 Franco also admitted to a strike 

prior conviction pursuant to sections 667, subdivisions (b)-(i), and 1170.12. 

Pursuant to the plea agreement, the remaining charges were dismissed with 

2 The other charges included attempted murder of R.S. (§§ 187, subd. (a), 

664; count 1); assault of R.S. with a semi-automatic firearm (§ 245, subd. (b); 

count 3); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5); 

unlawful possession of ammunition (§ 30305, subd. (a)(1); count 6); corporal 

injury of a spouse or cohabitant (§ 273.5, subdivision (a); counts 7 and 8); and 

making a criminal threat (§ 422; count 9). 
4

a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey) 

[defendant may agree to the court’s consideration of dismissed counts for 

sentencing purposes].) The court sentenced Franco to a stipulated term of 15 

years total. 

At the sentencing hearing, the court granted R.S.’s request for a 10-

year criminal protective order for herself and E.F. The court ordered that 

Franco have “no personal, electronic, telephonic or written contact with” R.S. 

and E.F. during the 10-year period. Franco’s attorney requested that the 

court exclude E.F. from the order, asserting that Franco did not attempt to 

harm his daughter during the altercation with R.S. The court denied his 

request, noting that Franco “pointed a gun at [R.S.’s] head” and when the gun 

went off, E.F. was present in the same room. 

Franco timely appealed.

DISCUSSION

I

A. E.F. Was A “Victim” Within the Meaning of Section 136.2

Franco first contends the court erred by including E.F. as a protected 

party in the protective order because she was not a “victim” who falls within 

the scope of section 136.2. We disagree. 

“When interpreting a statute, we view the statutory enactment as a 

whole; consider the plain, commonsense meaning of the language used in the 

statute; and seek to effectuate the legislative intent evinced by the statute.” 

(People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).) Section 

136.2, subdivision (i)(1) provides, in relevant part: “When a criminal 

defendant has been convicted of a crime involving domestic violence as 

defined in [s]ection 13700 or in [s]ection 6211 of the Family Code, . . . , the 

court, at the time of sentencing, shall consider issuing an order restraining 
5

the defendant from any contact with a victim of the crime. The order may be 

valid for up to 10 years, as determined by the court. . . . It is the intent of the 

Legislature in enacting this subdivision that the duration of a restraining 

order issued by the court be based upon the seriousness of the facts before the 

court, the probability of future violations, and the safety of the victim and the 

victim’s immediate family.”

Section 13700, subdivision (b), defines “ ‘[d]omestic violence’ ” as “abuse 

committed against an adult or a minor who is a spouse, former spouse, 

cohabitant, former cohabitant, or person with whom the suspect has had a 

child or is having or has had a dating or engagement relationship.” Family 

Code section 6211, subdivision (e), includes abuse perpetrated against “[a] 

child of a party” in the definition of “ ‘domestic violence.’ ” 

For purposes of a protective order issued under section 136.2, “victim”

is defined in section 136 as “any natural person with respect to whom there is 

reason to believe that any crime as defined under the laws of this state . . . is 

being or has been perpetrated or attempted to be perpetrated.”

In Beckemeyer, supra, 238 Cal.App.4th at page 463, this court 

concluded a third person who was assaulted during a domestic violence 

incident met the definition of a victim for purposes of a protective order 

issued pursuant to section 136.2, subdivision (i)(1). In that case, an adult 

child of the person being beaten attempted to intervene, and the perpetrator

then attacked the adult child. (Beckemeyer, at p. 464.) We noted that the 

broad definition of “victim” in section 136 for purposes of a protective order 

included “any person against whom there is reason to believe a crime has 

been committed.” (Beckemeyer, at p. 466.) We concluded “the Legislature 

was aware of this broad definition of victim generally applicable to section 

136.2 protective orders, and it did not enact a provision narrowing its scope 
6

for purposes of a postconviction domestic violence protective order.” (Ibid; see 

People v. Clayburg (2012) 211 Cal.App.4th 86, 90–93 (Clayburg) [restraining 

order appropriate under section 646.9, subd. (k)(1), for child of stalking victim 

who suffered fear and emotional harm from defendant’s conduct because the 

child was also a victim even though she was “not a named victim of the 

stalking”].) 

Similarly, we conclude E.F. was a victim of domestic violence within 

the statutory scheme’s broad definition because the evidence establishes 

reason to believe a crime was committed against her. Franco agreed to a 

Harvey waiver, and the court was entitled to consider facts related to the 

dismissed child abuse count under section 273a, subdivision (a) (count 4). 

(See Harvey, supra, 25 Cal.3d at p. 758; see also People v. Race (2017) 18 

Cal.App.5th 211, 220 (Race) [“in considering the issuance of a criminal 

protective order, a court is not limited to considering the facts underlying the 

offenses of which the defendant finds himself convicted, regardless of the 

execution of a Harvey waiver . . . . [A] court may consider all competent 

evidence before it.”].) 

Section 273a, subdivision (a), makes it a felony to, “under 

circumstances or conditions likely to produce great bodily harm or 

death,” willfully cause or permit a child in one’s care or custody “to be placed 

in a situation where his or her person or health is endangered[.]” (See also 

CALCRIM No. 821 [jury instruction on “Child Abuse Likely to Produce Great 

Bodily Harm or Death”].) As stated in CALCRIM No. 821, the child “does not 

need to actually suffer great bodily harm[]” for a defendant to be liable. (See 

People v. Cortes (1999) 71 Cal.App.4th 62, 80 [“there is no requirement that 

the victim suffer great bodily harm”].) Moreover, the Legislature has 

recognized that “[c]hildren, even when they are not physically assaulted, very 
7

often suffer deep and lasting emotional effects” of domestic violence. (Welf. & 

Inst. Code, § 18290.) Section 136.2, subdivision (a)(2), likewise recognizes 

that for purposes of obtaining a pre-conviction protective order, a minor who 

is present during an act of domestic violence is deemed to have suffered 

harm. 

Here, E.F. was present in the same room when Franco aimed his 

loaded firearm at R.S. multiple times, with his finger on the trigger, before 

shooting R.S. in the arm. When R.S. swatted the gun away, it could have 

discharged and shot E.F. After the shooting, Franco picked E.F. up and held 

her while holding the loaded firearm in his other hand, then placed her on 

the couch before she fell onto the floor. These facts established reason to 

believe that Franco committed a crime against E.F. (§ 273a, subd. (a).)

The facts here are distinguishable from People v. Delarosarauda (2014) 

227 Cal.App.4th 205, 211–212 (Delarosarauda), in which the Court of Appeal

determined that a victim’s children should not be included in the protective 

order under section 136.2, subdivision (i)(1), because “no evidence suggest[ed]

that [the defendant] ever attempted to harm” the children. The victim in 

Delarosarauda stated the defendant “ ‘never touched’ ” the children, and she

believed they were in another room at the time of the incident. 

(Delarosarauda, at p. 211.) There was also no evidence that the defendant 

used or discharged a loaded firearm in the presence of the children. And

unlike in this case, the defendant in Delarosarauda was not bound over on a 

child abuse charge naming the children as victims. (Id. at p. 208.)

Although Franco was not ultimately convicted of child abuse because 

he pled guilty to a different charge, the evidence shows there was reason to 

believe Franco endangered E.F.’s health under circumstances likely to 

produce great bodily harm or death. Accordingly, we conclude E.F. is a 
8

“victim” as broadly defined under section 136.2, and the court properly 

included E.F. in the protective order.

B. Factors in Section 136.2, Subdivision (i)(1), Relate to Protective Order’s

Duration

Franco next argues that statutory factors listed in section 136.2, 

subdivision (i)(1), do not support including E.F. in the protective order. 

Franco cites the portion of that subdivision which states: “It is the intent of 

the Legislature in enacting this subdivision that the duration of a restraining 

order issued by the court be based upon the seriousness of the facts before the 

court, the probability of future violations, and the safety of a victim and the 

victim’s immediate family.” (§ 136.2, subd. (i)(1), italics added.) He contends 

that E.F. should be excluded because he will be incarcerated while the 

protective order is in effect, so there is no probability of future violations and 

E.F.’s safety will not be threatened. 

California appellate courts have differed over whether trial courts 

should rely on these factors when it comes to the scope, and not just the 

duration, of protective orders issued under statutes containing similar 

language. In Clayburg, supra, 211 Cal.App.4th at pages 89, 91–92, the court 

affirmed the inclusion of a stalking victim’s daughter in a protective order by 

applying a similar sentence listing factors for determining the “length of any 

restraining order” in section 646.9, subdivision (k)(1), and reading it together

with the preceding sentence addressing “victim[s]” more broadly.3 In

3 Section 646.9, subdivision (k)(1) provides: “The sentencing court shall 

also consider issuing an order restraining the defendant from any contact 

with the victim, that may be valid for up to 10 years, as determined by the 

court. It is the intent of the Legislature that the length of any restraining 

order be based on the seriousness of the facts before the court, the probability 

of future violations, and the safety of the victim and his or her immediate 

family.”
9

contrast, the Court of Appeal in Delarosarauda, supra, 227 Cal.App.4th at 

page 212, disagreed with Clayburg and interpreted such language “to mean 

what it says: the court should consider, among other factors, the ‘safety of 

the victim and his or her immediate family’ in determining the length of the 

restraining order[,]” ultimately concluding that “[n]othing suggests” those 

factors also modify “the scope of the restraining order.”

Given the plain language of section 136.2, subdivision (i)(1), we agree 

with the reasoning in Delarosarauda and conclude that the listed factors 

apply when determining the duration of a postconviction protective order 

under section 136.2, not the scope. Because Franco does not challenge the 

order’s 10-year duration in his appeal, and because we have already 

determined that E.F. is a “victim” who falls within the ambit of a protective 

order under section 136.2, subdivision (i)(1), we reject Franco’s argument that 

factors such as safety and probability of future violations support excluding 

E.F. from the order. 

C. The Protective Order Is Not Overbroad

Franco contends that by limiting his contact with E.F., the protective 

order is overbroad and must be modified because it violates his liberty 

interest as a parent. We disagree, concluding that the state’s compelling 

interest in protecting domestic violence victims justifies the scope of the order

imposed here.

We acknowledge that Franco does have a constitutional liberty interest 

in being permitted to contact his child. (See Santosky v. Kramer (1982) 455 

U.S. 745, 752–756.) But a parent’s constitutional liberty interests must 

sometimes yield temporarily in situations like these, where a child falls 

victim to that parent’s violent actions. (See, e.g., In re S.H. (2003) 111 

Cal.App.4th 310, 317 [“the parents’ interest in the care, custody and 
10

companionship of their children is not to be maintained at the child’s 

expense”].) “The elimination of domestic violence is a compelling state

interest. The Legislature’s stated purpose in enacting the Law Enforcement 

Response to Domestic Violence Act (§§ 13700-13731; Stats. 1984, ch. 1609, 

§ 3, p. 5713) was ‘to address domestic violence as a serious crime against 

society and to assure the victims of domestic violence the maximum 

protection from abuse which the law and those who enforce the law can 

provide.’ (Stats. 1984, ch. 1609, § 1, p. 5711.)” (People v. Jungers (2005) 127 

Cal.App.4th 698, 704.) Although the protective order curtails Franco’s rights 

as a parent, we conclude that the order legitimately and reasonably operates

to accomplish the state’s compelling interest in protecting victims of domestic 

violence, including children who are put at risk by violence committed by one 

parent against another in their presence. 

Additionally, as the People note in their brief, Franco is not without 

avenues for seeking subsequent relief because “section 136.2 provides 

mechanisms for cooperation between the criminal, juvenile, and family law 

courts to permit communication by the subject of the criminal protective 

order with members of his family if appropriate.” (Race, supra, 18 

Cal.App.5th at p. 220; § 136.2, subds. (e)(3), (f); Delarosarauda, supra, 227 

Cal.App.4th at p. 211.)

We therefore find no grounds for modifying the court’s order based on 

Franco’s argument that it is overbroad.

II

Franco argues next that the court erred in applying a preponderance of 

the evidence standard instead of a clear and convincing standard.

Specifically, he contends that due process requires that the more heightened 

standard apply to adequately protect his liberty interest as a parent. 
11

As an initial matter, it is unclear from the record which standard of 

proof the court applied because none was mentioned at Franco’s sentencing 

hearing. Both parties presume the court applied a preponderance of the 

evidence standard because section 136.2, subdivision (i)(1) does not specify 

which standard applies, and Evidence Code section 115 provides that

“[e]xcept as otherwise provided by law, the burden of proof requires proof by a 

preponderance of the evidence.” 

Even assuming that the trial court did apply a preponderance of 

evidence standard—and even if it should have applied a clear and convincing 

evidence standard—Franco makes no persuasive argument as to why any 

such error would be prejudicial. Although Franco claims in his brief that the 

location of the parties at the time of the shooting “is not entirely clear,” he 

does not dispute the critical fact that he shot R.S. in the bedroom when E.F. 

was nearby on the bed in the same room. Nor does he dispute that he held 

E.F. with a loaded gun in his hand and moved her to the sofa, where she then

rolled onto the floor. Because the underlying facts establishing that E.F. was 

a “victim” within the broad meaning of section 136.2 were essentially 

undisputed, we conclude that any error in failing to apply the clear and 

convincing evidence standard would be harmless under any standard. (See 

Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 533 [finding no 

prejudice where appellant “failed to explain how the result would have been 

any different if the trial court had applied the clear and convincing evidence 

standard of proof instead of the preponderance of the evidence standard”].)

Accordingly, we find no reversible error in the court’s application of the 

standard of proof. 
12

DISPOSITION

The judgment and protective order are affirmed. 

BUCHANAN, J.

WE CONCUR:

MCCONNELL, P. J.

IRION, J.