Filed 7/22/15 P. v. Salinas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

LIVERIO SALINAS,

Defendant and Appellant.

 B255780

 (Los Angeles County

 Super. Ct. No. NA097257)

APPEAL from a judgment of the Superior Court of Los Angeles County. Richard 

R. Romero, Judge. Affirmed and remanded with directions.

Sheila Tuller Keiter, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Analee J. 

Brodie and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Liverio Salinas (defendant) appeals from the judgment 

entered after he was convicted of inflicting corporal injury on the mother of his children. 

He challenges only the protective order issued upon sentencing, and contends that the 

trial court abused its discretion by including the three children as protected persons. We 

agree and order the trial court to modify the order by striking the children’s names. We 

otherwise affirm the judgment.

BACKGROUND

Defendant was charged with inflicting corporal injury on a spouse, in violation of 

Penal Code section 273.5, subdivision (a), (count 1).

1 Count 1 further alleged that 

defendant had suffered a prior conviction of the same offense within the preceding seven 

years, within the meaning of section 273.5, subdivision (e)(1), and that in the commission 

of the current offense, defendant inflicted great bodily injury on victim Amelia L., within 

the meaning of section 12022.7, subdivision (e). In count 2, defendant was charged with 

disobeying a domestic relations court order in violation of section 273.6, subdivision (a).

Defendant agreed to plead no contest to count 1 and to admit the special 

allegations, in return for a four-year prison term and dismissal of count 2. On March 3, 

2014, defendant entered a plea as agreed, admitted the special allegations, and the parties 

stipulated to the facts presented at the preliminary hearing as the basis for defendant’s 

admission to having inflicted great bodily injury. At the preliminary hearing Amelia 

testified that defendant had come to her home to see their children, and in the presence of 

the children, he became angry, pulled Amelia by the hair, and slammed her head against 

the door frame causing a head wound that required seven staples to close.

The trial court sentenced defendant to four years in prison in accordance with the 

plea agreement and ordered defendant to pay mandatory fines and fees. Defendant was 

awarded total custody credit of 195 days. The trial court also entered a protective order 

requiring defendant to stay away from Amelia and their three children, and to have no 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
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contact, including all “personal, electronic, telephonic, or written contact” with them for a 

period of 10 years.

The trial court issued a certificate of probable cause solely as to the issue of the 

breadth of the protective order, and defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that the trial court abused its discretion in issuing a protective 

order which prohibits contact with his children for 10 years. Under former section 273.5, 

the trial court was authorized to issue “an order restraining the defendant from any 

contact with the victim . . . for up to 10 years, as determined by the court.” (§ 273.5, 

subd. (j), italics added.)2 Defendant contends that his children were not victims within 

the meaning of the statute and that including them in the protective order was

unauthorized. In general, a trial court’s decision can be an abuse of discretion when it is 

not “‘guided by legal principles and policies appropriate to the particular matter at issue.’ 

[Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

Defendant relies in part on People v. Delarosarauda (2014) 227 Cal.App.4th 205 

(Delarosarauda), which held that under the plain language of the statute, “victim” means

the victim of the conduct which constitutes a violation of section 273.5. (Delarosarauda, 

at pp. 212-213.) The possible victims enumerated in the statute are the defendant’s 

“spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or 

her child.” (Former § 273.5, subd. (a); see now, subd. (a) & (b).) Section 273.5 prohibits

the infliction of corporal injury through the application of physical force against a person 

described in one of the specified categories of victims, resulting in a “traumatic 

condition” of the body, i.e., a physical injury. (Former § 273.5, subd. (a) & (c); see now, 

subds. (a), (b) & (d); see Delarosarauda, supra, at p. 213.) Thus, subdivision (j) 

 

2 The trial court used Judicial Council form No. CR-160, which is used for 

protective orders issued under various statutes, and checked the box corresponding to 

section 273.5, subdivision (i). The form had been revised in 2009, before subdivision (i) 

was renumbered as subdivision (j) in 2013. (See Stats. 2013, ch. 763, § 1.) As this 

protective order was issued in 2014, we construe the court’s intention as issuing the order 

under section 273.5, subdivision (j).
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authorizes the court to restrain the defendant from any contact with the victim as defined

in the statute; however, the statute contains no language authorizing the court to prohibit 

contact with the victim’s children. (Delarosarauda, at p. 213.)

Respondent contends that despite the language of the statute, we should reject the 

Delarosarauda court’s definition of victim as too restrictive when considered in the 

context of domestic violence, and should include children who suffer or may suffer 

psychological harm by witnessing acts of domestic violence. Respondent urges that the 

better reasoning appears in People v. Clayburg (2012) 211 Cal.App.4th 86 (Clayburg),

which construed “victim” more liberally in holding that under the statute relating to 

stalking, “a member of the immediate family of a stalking victim (§ 646.9, subd. (a)) who 

suffers emotional harm, here a child, is a ‘victim’ for purposes of a postconviction 

restraining order.” (Clayburg, supra, at p. 88.) Respondent argues that the Clayburg

court correctly recognized the importance of protecting all victims of domestic violence, 

and notes that its definition of victim was consistent with the California Constitution, 

article 1, section 28 (the “Victims’ Bill of Rights”), subdivision (e), as “a person who 

suffers direct or threatened physical, psychological, or financial harm as a result of the 

commission or attempted commission of a crime [including] the person’s spouse, parents, 

children, siblings, or guardian.” (See Clayburg, supra, at p. 91.) Respondent also notes 

that Clayburg relied on a sentence in section 646.9, subdivision (k)(1), identical to the 

second sentence in section 273.5, subdivision (j): “It is the intent of the Legislature that 

the length of any restraining order be based upon 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.” (See Clayburg, supra, at pp. 88-89, 92.)

Clayburg provides no guidance here, as section 646.9 protects any “other person” 

without limitation to categories of victims, and physical harm is not an element of the 

offense, as it is in section 273.5. Further, we observe that the constitutional definition of 

victim was expressly limited to the purposes of the Victim’s Bill of Rights, and cannot be 

read to apply to every statute in which the word “victim” appears. (See Cal. Const., art. 

1, § 28 [“As used in this section”].) We agree with the Delarosarauda court that the 
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second sentence of section 273.5 clearly relates only to the court’s determination of the

duration of the restraining order, not the definition of victim. (See Delarosarauda, supra, 

227 Cal.App.4th at pp. 211-212.)

In any event, the trial court made no finding that the children’s safety was 

threatened and there was no evidentiary showing that they required protection for any 

period of time, much less for 10 years. The court expressly did not find that defendant’s 

children were victims, and named the children in the protective order solely as a means to 

give effect to the order. After the prosecutor reminded the court that the children had 

been included in the protective order pending trial and that defendant had gained access 

to Amelia by bringing food to the children, the court found it necessary to include the 

children in order to protect Amelia from defendant. When defense counsel pointed out 

that the statute did not include children in the statutory categories of victims, the court 

explained:

“I’m not listing the children as possible victims. I’m listing the

children because he otherwise made attempts to contact the children, and 

necessarily by contacting the children, she will be in danger because she 

has custody of the children. So I’m only including them to carry out the 

protective order as to her.”

The question is thus not whether the children can be defined as victims in section 

273.5, subdivision (j), but whether the trial court was authorized to include them in the 

order as a means to make it effective in protecting Amelia. There is no provision in 

section 273.5 extending that authority, and although the Judicial Council form CR-160 

provided the option to designate other statutory bases for the order, the court checked 

only the box next to section 273.5. We are mindful that “[i]t is not the content or format 

of the Judicial Council form that determines the propriety of the challenged protective 

order, but the authorizing statute. [Citation.]” (People v. Stone (2004) 123 Cal.App.4th 

153, 158.) Respondent presents no argument on appeal that any other statute authorized 

the court to include the family member of the person protected in the order.

At sentencing, the prosecutor sought to justify the postconviction protective order 

in part because the trial court had previously named the children in the order pending 
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trial, which had been issued pursuant to section 136.2. However, that order was valid 

only pending trial, and while subdivision (i) of section 136.2 permits a postconviction 

restraining order to protect victims of domestic violence, “‘[v]ictim’ means 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.” 

(§ 136, subd. (3).) Thus, children who are victims in the sense that they have witnessed 

violence against their mother, are not victims for purposes of a postconviction protective 

order unless the defendant committed the same statutorily defined crime against them. In 

other words, there must be some showing that the children were victims of that same 

crime, albeit unnamed victims. (See Delarosarauda, supra, 227 Cal.App.4th at p. 212.) 

Here, although Amelia testified that her children cried when they witnessed the violence, 

there was no evidence that the children suffered past or present physical harm or that they 

qualified under one of the categories of victims in section 273.5.

3

Finally, we reject any suggestion in respondent’s arguments that Amelia and her 

children cannot be protected unless the definition of victim is judicially expanded for 

purposes of section 273.5. The family and juvenile courts may include other persons in a 

protective order as necessary to effectuate the protection of a child or other family 

member, and such an order may coexist with an order issued by the criminal court to 

protect a victim of domestic violence, so long as it does not conflict with the criminal 

 

3 On the other hand, the children did fit the statutory definition of “witnesses” for 

purposes of section 136.2, as witness “means any natural person, (i) having knowledge of 

the existence or nonexistence of facts relating to any crime, . . . or (v) who would be 

believed by any reasonable person to be an individual [so] described . . . .” (§ 136, subd. 

(2).) Three months after Delarosarauda held that section 136.2, subdivision (i) protected 

only the victim, not the victim’s family members, the Legislature amended provisions 

relating to preconviction protective orders in section 136.2, subdivision (a)(1), by adding 

subparagraph (G)(iv)(2): “For purposes of this subdivision, a minor who was not a 

victim of, but who was physically present at the time of, an act of domestic violence, is a 

witness and is deemed to have suffered harm within the meaning of paragraph (1).” 

(Stats. 2014, ch. 673, § 1.3, eff. Jan. 1, 2015.) No change was made to the definition of 

victim in section 136, or to the scope of the postconviction protective order authorized by 

section 136.2, subdivision (i).
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protective order. (In re C.Q. (2013) 219 Cal.App.4th 355, 363-364; In re B.S. (2009) 172 

Cal.App.4th 183, 188-189; see, e.g., Fam. Code, §§ 6322, 6340, 6380; Welf. & Inst. 

Code, § 213.5.) Moreover, our function is to construe the applicable statutes, not to 

rewrite them. (See People v. Skinner (1985) 39 Cal.3d 765, 775-776.)

We conclude that the trial court was not authorized to include the children in the 

postconviction protective order, and their names must be stricken.

DISPOSITION

The matter is remanded with directions to the superior court to modify the 

protective order by removing all names except Amelia from the list of protected persons, 

term No. 4 on Judicial Council form No. CR-160, filed March 3, 2014. In all other 

respects and as so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

HOFFSTADT