California Penal Code Section 136.2 - Interpretation
In People v. Stone (2004) 123 Cal.App.4th 153, the Court of Appeal stated:
"Although 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."
The court said, "The absence of any express time limitation on the duration of a restraining order issued under section 136.2 suggests that its duration is limited by the purposes it seeks to accomplish in the criminal proceeding." (Ibid.)
Its "only purpose 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." (Ibid.)
The Court of Appeal in Stone noted that there were other statutory provisions that provided for long-term protective orders, but those provisions set forth numerous procedural protections for persons subject to them.
Consequently, the court concluded that the Legislature intended a "narrower scope" for section 136.2 orders so that they would be limited to "the proceedings before the criminal court." (People v. Stone, supra, 123 Cal.App.4th at p. 159.)
It said that if the duration was "not so limited, restraining orders under section 136.2 would usurp the similar restraining orders obtainable under Code of Civil Procedure section 527.6, and undermine the numerous procedural protections for the restrainee afforded by that section." (Id. at pp. 159-160.)
Stone held that a three-year restraining order (like the one here) was not authorized by the statute. "Here, the restraining orders were issued for three years.
They were not limited to the pendency of the criminal proceeding and were not a probation condition, as appellant was not given probation. the restraining orders therefore transcended the authorization of section 136.2 and must be reversed." (People v. Stone, supra, 123 Cal.App.4th at p. 160.)In People v. Stone, supra, 123 Cal.App.4th at page 160, the Court of Appeal held that a protective order could not be sustained without a showing of "a threat, or likely threat to criminal proceedings or participation in them."
The court said, "There was no evidence ... that after being charged in this matter, defendant, or anyone on his behalf ... , made any efforts by threat or force to dissuade either victim from testifying against him or proceeding with the prosecution. the fact that defendant had assaulted both of them before there were any criminal proceedings, and without any intent to interfere with such proceedings, is insufficient to justify the restraining orders." (Id. at pp. 160-161.)