By Jose Medina
WOODLAND – It’s a technicality, but a Yolo County Superior Court judge couldn’t renew a protective order protecting a victim late last week, even after an exhaustive search to try to find a way to so.
Pedro Rodriguez last Friday was called into court for a renewal hearing on a criminal protection order that was held against him, but set to expire Sept. 6. The victim, referred to as “AO,” moved to extend Rodriguez’s criminal protection order.
Judge David Rosenberg oversaw the hearing, while attorney Jeffrey Raven represented Rodriguez, Deputy District Attorney Deanna Hays was the prosecutor, and Professor John E.B. Myers served as a counsel for AO.
The hearing ended up being a debate on the language of Penal Code section 136.2, which gives the court authority to issue a protective order against a defendant that is charged with domestic violence.
The issue that arose during the hearing is that PC § 136.2 does not mention anything about renewals, and it does not appear to authorize the court any type of authority to issue extensions to criminal protection orders.
Hays argued the court can provide an extension to the criminal protection order through the code section, noting that “you take your typical domestic violence case where we issue a no harassing or no contact order at the time of sentencing and then an year or two go by and you have a victim come back to court and say I’d like to modify that to a no contact order now or no harassing, and the
court complies with the request and modifies it all the time.”
Hays added that extending the length of a criminal protection order is similar to changing the type of restraining order and that the court should take similar description when dealing with the criminal protection order being issued to Rodriguez.
Defense attorney Raven disagreed, insisting “yes we can modify orders all the time, but it’s usually when there is a change in circumstance such as a violation of a probation or a violation of an order that then precipitates the court taking those facts into consideration and making the change. In this circumstance, it was just set to expire, essentially.”
Raven said the hearing Friday was held to determine whether or not the court has the jurisdiction, under PC § 136.2, to provide an extension to the contested criminal protection order. He made it clear that under section 136.2 there is no jurisdiction granted to the court to provide extensions.
Judge Rosenberg called on Professor John E.B. Myers, the victim AO’s counsel, to report his briefing on the subject extensions under section 136.2.
Professor Myers stated, “I honestly can’t find any law on CPOs about the standard the court (should) use to extend one. I think it’s clear that the court can. (Attorney) Raven has made an argument to the contrary, but it does say the word extended, at least twice in section 136.2. So, the legislature had extending CPOs in mind”.
Professor Myers, showing a desire to support AO’s plea to extend the criminal protection order, maintained “my argument would be that the court ought to use the same standard that we use when renewing a domestic violence restraining order, to extend a criminal protection order, because there is no other authority and the standards established for domestic violence restraining order renewal are logical, they seem to apply quite well here.”
Judge Rosenberg was unconvinced by both Professor Myers’ and Prosecuting Attorney Hays’ arguments for extending criminal protection orders.
“The court’s reading of Penal Code section 136.2, would seem to me that there is no discussion of who has the legal standard, there’s no discussion about renewals. Whereas the legislature knows how to do that, they crafted specific legislative provisions in the family code that explains exactly how the trial court should go about accepting an application to renew a restraining order.
“If the legislature wanted that procedure in the penal code, they could’ve easily done that and they didn’t do that and so this is what the courts are running up against right now,” said the judge.
Judge Rosenberg further lectured that “136.2 explains everything and it says nothing about renewals and it has a history of being limited to pre-conviction matters, so you’re asking the court to make a new law here and to read something into the statutes that’s not there.”
He ruled that the court has no authority to extend the criminal protection order, and victim AO would need to appear in family court in order to provide convincing evidence of legitimate apprehension in order to extend the criminal protection order held against Rodriguez.
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