Unreported / Non-Citable
Background
Armando Gonzalez was convicted after a jury trial of assault with a deadly weapon under Penal Code section 245, subdivision (a)(1), and the jury found true an allegation that he caused great bodily injury. The evidence concerned an encounter at the residential complex where victim D.K. lived with his wife, P.J. After an initial confrontation, Gonzalez later approached D.K. outside and stabbed him, lacerating his abdomen and puncturing his liver. D.K. recovered without surgery after a long period of inactivity. The trial court dismissed a prior-strike allegation and sentenced Gonzalez in April 2025 to six years in prison: three years for the assault and a consecutive three years for the great-bodily-injury enhancement.
At the end of sentencing, the clerk asked whether an earlier protective order would continue. The prosecutor requested a new 10-year order, and the trial court issued protective orders under section 136.2 for both D.K. and P.J., prohibiting Gonzalez from contacting them. Gonzalez did not object at sentencing but filed a timely appeal. He argued that section 136.2 did not authorize post-sentencing protective orders based on his conviction. The Attorney General conceded that the orders were unauthorized. The appellate court addressed the issue despite the absence of a trial objection because sentences exceeding a trial court's jurisdiction may be challenged for the first time on appeal.
The Court’s Holding
The court distinguished section 136.2's general authority in subdivision (a) from its post-conviction authority in subdivision (i). Subdivision (a) permits a court with jurisdiction over a criminal matter, upon a good-cause belief that a victim or witness was harmed, intimidated, or dissuaded, to restrain specified communications. It does not mention sentencing or conviction. Subdivision (i), by contrast, directs consideration of a no-contact order at sentencing after conviction of specified offenses and permits such an order to last up to 10 years. The court therefore read subdivision (i), not subdivision (a), as governing post-sentencing protective orders.
Earlier decisions had held that subdivision (a) orders are limited to the pendency of the criminal action or to probation conditions. The court found that understanding confirmed by the 2011 legislation adding subdivision (i): Senate and Assembly committee reports cited those decisions and explained that existing protective orders operated only during criminal proceedings. The Legislature thus added a specific post-conviction mechanism rather than leaving such orders to subdivision (a)'s general authority.
Subdivision (i) covers convictions involving domestic violence, specified human-trafficking and sex offenses, a gang-related offense under section 186.22, and crimes requiring sex-offender registration. Gonzalez's non-domestic-violence assault with a deadly weapon did not fall within any listed category. Accepting the Attorney General's concession, the court held both protective orders unauthorized and ordered them stricken. It otherwise affirmed the judgment, leaving the conviction and six-year sentence intact.
Key Takeaways
- A defendant may challenge an unauthorized protective order for the first time on appeal because the issue concerns a sentence exceeding the trial court's jurisdiction.
- Penal Code section 136.2(a) does not independently authorize a protective order extending beyond the criminal action or probation conditions.
- Post-sentencing protective orders are governed by section 136.2(i), which applies only to the offenses and circumstances specified in that subdivision.
- A conviction for assault with a deadly weapon that does not involve domestic violence is not, by itself, a qualifying conviction under section 136.2(i).
- The appellate court struck the orders protecting D.K. and P.J. but otherwise affirmed Gonzalez's conviction and six-year prison sentence.
Why It Matters
The decision reinforces that a sentencing court cannot use section 136.2's general restraining-order provision to create a long-term post-conviction order when the conviction is outside subdivision (i)'s enumerated scope. The parties' agreement did not replace the court's analysis: the opinion independently relied on the statute's structure, prior appellate decisions, and legislative history before accepting the concession.
The ruling is narrow in disposition but important for sentencing practice. It separates the validity of protective orders from the validity of the underlying conviction and punishment, correcting only the unauthorized orders. It also shows that the absence of a contemporaneous objection does not prevent appellate review of an order alleged to exceed the sentencing court's statutory authority.