Filed 10/16/14 P. v. McElvany CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

MARK DAVID MCELVANY, 

Defendant and Appellant. 

F067929 

(Super. Ct. No. F13904559) 

OPINION

THE COURT* 

 APPEAL from a judgment of the Superior Court of Fresno County. F. Brian 

Alvarez, Judge. 

 Deborah Prucha, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren 

K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

* Before Cornell, Acting P.J., Gomes, J. and Franson, J. 
2. 

 Defendant Mark David McElvany was convicted by guilty plea of making 

criminal threats (Pen. Code, § 422).1 He admitted a prior strike conviction (§§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d)) and the trial court sentenced him to 32 months in 

prison. At sentencing, the prosecutor requested that the trial court issue a criminal 

protective order preventing contact with the victim, in addition to a civil protective order 

that was already in place. The court agreed and issued a three-year criminal protective 

order under section 136.2. On appeal, defendant contends the criminal protective order 

must be stricken. The People concede and we agree. 

DISCUSSION 

 “Under section 136.2 ..., during 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. Stone (2004) 123 Cal.App.4th 153, 159 (Stone).)” (People v. Selga (2008) 162 

Cal.App.4th 113, 118.) 

 “Because the only purpose of orders under section 136.2 ‘is to protect victims and 

witnesses in connection with the criminal proceeding in which the restraining order is 

issued in order to allow participation without fear of reprisal,’ the duration of such an 

order ‘is limited by the purposes it seeks to accomplish in the criminal proceeding.’ 

(Stone, supra, 123 Cal.App.4th at pp. 159-160.) That is, the protective orders issued 

under section 136.2 [are] operative only during the pendency of the criminal proceedings 

and as prejudgment orders. (Stone, supra, at p. 160.)” (People v. Selga, supra, 162 

Cal.App.4th at pp. 118-119; see People v. Scott (2012) 203 Cal.App.4th 1303, 1324-

1325; People v. Ponce (2009) 173 Cal.App.4th 378, 383.) 

 1All statutory references are to the Penal Code. 
3. 

 In this case, the trial court erred when it issued the protective order under 

section 136.2 because it had sentenced defendant to prison. As the second page of the 

criminal protective order form states: “Orders under Penal Code Section 136.2 are valid 

as long as the court has jurisdiction over the case. They are not valid after imposition of 

a state prison commitment. (See People v. Stone[, supra,] 123 Cal.App.4th 153.)” 

Accordingly, the parties agree that the order must be stricken. 

DISPOSITION 

 The criminal protective order under section 136.2 is stricken. In all other respects, 

the judgment is affirmed.