Appeals Court Invalidates Stay-Away Order to Man Who Killed Mother’s Dog

Thursday, January 7, 2016

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Appeals Court Invalidates Stay-Away Order to Man Who Killed Mother’s Dog

Opinion Is Based on Statute As It Existed Before 2015 Amendment

By a MetNews Staff Writer

Applying a statute as it existed at the time of the defendant’s sentencing—before the Legislature plugged a loophole—the Third District Court of Appeal yesterday struck a protective order forbidding a man from coming closer than 400 yards from the home of his mother, whose dog he killed.

The statute—136.2, subdivision (i)(1)—provided at the time of the sentencing of Jose Luis Flores on May 21, 2014, and still provides (but with added language):

MARIE WALDRON

Assemblywoman

“In all cases in which a criminal defendant has been convicted of a crime of domestic violence as defined in Section 13700...the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim.”

Flores, who hanged his mother’s dog, was sentenced for cruelty to an animal.

Justice Harry E. Hull Jr., in an unpublished opinion, said the stay-away order was impermissibly imposed, explaining:

“Section 13700, in turn, defines ‘domestic violence’ as ‘abuse’ committed against a ‘spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.’….

“Under the circumstances presented here, defendant’s mother is not one of those persons specified in section 13700’s definition of domestic violence victims. She was not defendant’s spouse, cohabitant, ‘or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.’…Though defendant had lived with his mother for five years on-and-off, she was not a ‘cohabitant.’ ”

He cited authority declaring that “cohabitant” means “two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship”.

The jurist continued:

“Because defendant’s cruelty to animals conviction did not constitute a domestic violence conviction at the time of sentencing, the trial court lacked authority to impose the postjudgment protective order under section 136.2.”

Sec. 136.2 was amended in 2014, effective Jan. 1, 2015. “Domestic violence” is now as defined by §13700, or as defined in Family Law §6211. That latter section includes abusive conduct toward a parent; it extends to “[a]ny other person related by consanguinity or affinity within the second degree.”

The case is People v. Flores,C076882.

The bill creating that and other statutory changes was AB 1850, carried by Assemblywoman Marie Waldron, R-Escondido.

She told the MetNews yesterday:

“As a legislator it is satisfying to realize our efforts to protect vulnerable citizens have been successful. Assembly Bill 1850 broadened the definition of harm, allowing the court to issue an order of protection, for those in need of protection, to keep them safe from violent offenders.”

That bill also provided that a child who was not a direct victim of domestic violence, but witnessed it, is deemed to suffer “harm.” It authorized protective orders aimed at preventing such harm to the child in the future.

The bill was based on a 2013 resolution passed by the Conference of California Bar Associations. It was authored by AB 1850 was Los Angeles County Bar Association delegates Teresa Sullivan (now a Los Angeles Superior Court judge), Joseph Goldstein, and Bea Dieringer.