Challenging the Justification for a Protective Order On the Basis of Insufficient Evidence

By: Wallin & Klarich

The issue in People v. Ponce circulated around jurisdictional validity of the trial court’s decision to issue a three-year protective order during sentencing. At defendant Ponce’s sentencing hearing, the prosecutor requested the court to issue a protective order for Lucero. He did not make an offer of proof or explain the reason for this request. The court granted this request and signed a criminal protective order using Judicial Council form CR 160, entitled “Criminal Protective Order – Domestic Violence (CLETS-CPO) (Penal Code, §§ 136.2 and 1203.097(a)(2).” The order provided, “[T]his order expires three years from the date of issuance.”

Ponce contended that the three-year protective order issued during sentencing was unauthorized because under section 136.2 the duration of the order may not extend beyond the trial court’s jurisdiction over the criminal case. The Attorney General disagreed and claimed that the statute on its face did not place any time limit on the duration of the order, meaning, the three-year order was proper.

There was no evidence that after being charged Ponce had threatened, or had tried to dissuade any witness, or had tried to unlawfully interfere with the criminal proceedings. The prosecutor did not make an offer of proof or any argument to justify the need for a protective order. He simply said, “[W]e’d also like to have a stay-away order in this case . . . .” But a prosecutor’s wish to have such an order, without more, is not an adequate showing sufficient to justify the trial court’s action. (People v. Stone, supra, 123 Cal.App.4th at pp. 160-161.) The final result was that the protective order was stricken.

Understanding the complexities surrounding the issuance and validity of a protective order requires great knowledge and experience. Wallin & Klarich is a large California Law Firm, with over 30 years of experience. Wallin & Klarich is centrally located in Orange County, California, with offices throughout Southern California. The firm boasts an AV rating from Martin Dale Hubble, the highest rating any law practice can obtain. Contact a skilled Orange County criminal defense attorney from Wallin & Klarich for a free consultation at 1-888-280-6839. Also, visit us online at to learn more about your case and what can be done.

Posted In: Criminal Appeals