People v. Walker CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD282520
- Trial judge
- Melinda J. Lasater
- Outcome
- reversed in part — Affirmed in part and reversed in part with instructions.
- Area
- criminal
- Panel
- Laurence D. Rubin (author), William S. Dato, Buchanan
Analysis
The trial court issued a criminal protective order (CPO) that included the defendant's children as protected parties, included a pretrial order prohibiting witness dissuasion, and omitted an exception for future family court orders regarding child exchange. The Court of Appeal reversed in part, vacating those specific items of the CPO to remove the children, delete the pretrial provision, and add the exception for future court orders, while affirming the rest of the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Inclusion of defendant's children as protected parties in the CPO“nothing in the record indicates that Walker’s children were victims or percipient witnesses of that crime.” | de novo | error | agree with court agree with court |
Inclusion of pretrial order (item 9) prohibiting dissuasion of witnesses in a post-trial CPO“The parties are therefore correct that the trial court erred by entering a pretrial order under item 9.” | de novo | error | agree with court agree with court |
Omission of exception for future family court orders (item 14) in the CPO“The CPO therefore does not match the trial court’s stated ruling.” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Lopez (2022) 75 Cal.App.5th 227 — Pretrial orders under Penal Code section 136.2(a) do not survive after final judgment; children present but asleep during domestic violence are not victims or percipient witnesses under section 136.2(i).
- relied: People v. Walts (2025) 112 Cal.App.5th 127 — In a postconviction order, the court may bar the defendant from contacting a victim of the crime or a percipient witness to the crime.
The appellate opinion: sound — The opinion correctly applies the statutory distinction between pretrial and post-trial protective orders under Penal Code section 136.2, citing Lopez and Walts to support the conclusion that the pretrial provision was improper and the children were not protected parties. It also correctly identifies that the written order failed to reflect the trial court's oral intent regarding exceptions for future family court orders.
How this analysis was made · dispute it
unusual dispositionAfter a jury convicted Walker of misdemeanor assault on his ex-wife, the trial court issued a 10-year criminal protective order that named the couple's two minor children as protected persons, checked the pretrial witness-dissuasion box (item 9), and left unchecked the item 14 exception for future family, juvenile, or probate court orders on child exchange and visitation. The Court of Appeal, accepting the People's concessions on the first two points and agreeing with Walker on the third, vacated items 3, 9, and 14, directed the trial court to issue an amended CPO removing the children, deleting the pretrial order, and adding the item 14(b) exception, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Inclusion in the posttrial CPO of item 9, a pretrial order under Penal Code section 136.2(a)(1) prohibiting dissuasion of victims or witnesses from attending court hearings.“The trial court issued the challenged CPO after trial. The parties are therefore correct that the trial court erred by entering a pretrial order under item 9.” | unclear | error (statutory interpretation) | agree with court Section 136.2, subdivision (a) authorizes only pretrial orders that do not survive final judgment, as Lopez holds; a posttrial CPO must rest on subdivision (i). The People conceded the point and the opinion's statutory reading is correct. |
Listing Walker's two minor children as additional protected persons in item 3 of the posttrial CPO.“However, nothing in the record indicates that Walker’s children were victims or percipient witnesses of that crime.” | unclear | error (statutory interpretation) | agree with court Section 136.2, subdivision (i) limits posttrial protected persons to victims of the crime and percipient witnesses. Lopez squarely holds children who were not victims or percipient witnesses cannot be included, and the record showed no basis for the children here; the People conceded. |
Failure to check item 14(b) of the CPO, which would permit exceptions for future family, juvenile, or probate court orders regarding safe exchange of children and court-ordered visitation, despite the court's oral statement that it would let the family court deal with the issue.“However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.” | unclear | error (procedure) | unsure The appellate court treated the unchecked box as a discrepancy between the oral ruling and the written order and corrected it. The trial court's remarks ('I don't want to go there at this point ... they need to go back and see the family court judge') can plausibly be read as intending to defer to the family court, but they could also be read as simply declining to address exceptions at all; the opinion cites no authority for the oral-pronouncement-controls principle and does not grapple with the alternative reading. |
Authorities
- relied: People v. Lopez (2022) 75 Cal.App.5th 227 — Pretrial protective orders under section 136.2, subdivision (a) do not survive final judgment; posttrial orders under subdivision (i) may protect only victims and percipient witnesses, so children present but asleep during a domestic violence incident could not be protected persons.
- relied: People v. Walts (2025) 112 Cal.App.5th 127 — A postconviction protective order under section 136.2, subdivision (i) may bar contact with a victim of the crime or a percipient witness to the crime.
- missed: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over a conflicting written record, and an appellate court may order correction of clerical discrepancies in the written order to conform to the oral ruling.
The appellate opinion: sound with gaps — The first two corrections rest on a straightforward reading of section 136.2 confirmed by Lopez and Walts and were conceded by the People, so the result is well supported. The third correction is defensible but the opinion cites no authority for conforming the written order to the oral ruling and does not address whether the trial court's ambiguous remarks actually reflected an intent to authorize an exception rather than to decline to address one.
Opinion
Filed 8/5/26 P. v. Walker CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085226
Plaintiff and Respondent, (Super. Ct. No. SCD282520) v.
ANDREW BLAKE WALKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed in part and reversed in part with instructions. Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Donald W. Ostertag and Anne Spitzberg, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION A jury convicted Andrew Blake Walker of misdemeanor assault against his ex-wife. After trial, the trial court issued a criminal protective order (CPO) barring Walker from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting Walker from dissuading the victim or witnesses from attending court hearings. The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders “for the safe exchange of children and court-ordered visitation.” On appeal, we agree with the People’s concessions that the CPO should not include Walker’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. We also agree with Walker that the lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly. We otherwise affirm the judgment. II. BACKGROUND The San Diego County District Attorney’s Office charged Walker with corporal injury to a spouse1 (Pen. Code,2 § 273.5, subd. (a); count 1), sexual penetration by force (§ 289, subd. (a); count 2), false imprisonment (§§ 236, 237, subd. (a); count 3), forcible oral copulation, (§ 287, subd. (c)(2)(A); count 4), two counts of spousal battery (§ 243, subd. (e)(1); counts 5 & 7); and assault by means likely to cause great bodily injury (§ 245, subd. (a)(4); count 6).
1 Walker and the victim were married at the time of the charged offenses but have since divorced. 2 All further undesignated statutory references are to the Penal Code. 2 A jury acquitted Walker of all charges except for misdemeanor assault (§ 240) as a lesser included offense of count 6. The trial court sentenced Walker to 180 days in custody with credit for time served. The trial court issued a CPO prohibiting Walker from contacting the victim and their two minor children for 10 years. The CPO is a mandatory judicial council form, and the minor children are named as additional protected persons in item 3 of the form. The trial court also checked item 9 in the CPO, preventing Walker from dissuading victims or witnesses from attending court hearings. Item 9 is “for pretrial orders issued under Penal Code section 136.2(a)(1).” The trial court declined to check item 14 in the CPO, which authorizes exceptions to the no-contact order for the safe exchange of children or court-ordered visitation pursuant to an existing or future family, juvenile, or probate court order. The trial court explained, “I’m going to let the family court deal with it. I’m not going to get into that at this point. [¶] . . . [¶] This situation has so many twists and turns and issues. . . . [¶] . . . I don’t want to go there at this point, . . . [s]o I think they need to go back and see the family court judge.” Walker’s timely notice of appeal followed. III. ANALYSIS Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered. (People v. Lopez (2022) 75 Cal.App.5th 227, 236.) On the other hand, section 136.2, subdivision (i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. (Lopez, at pp. 236–237.) In a postconviction order, the court may bar the defendant from contacting “a victim of the crime,” (§ 136.2, subd. (i)(1)) or “a percipient witness to the 3 crime” (id., subd. (i)(2)). (See People v. Walts (2025) 112 Cal.App.5th 127, 143.) The trial court issued the challenged CPO after trial. The parties are therefore correct that the trial court erred by entering a pretrial order under item 9. The parties are also correct that the trial court should not have included Walker’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. (§ 136.2, subd. (i)(1); Fam. Code § 13700, subds. (a) & (b).) However, nothing in the record indicates that Walker’s children were victims or percipient witnesses of that crime. (People v. Lopez, supra, 75 Cal.App.5th at p. 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under § 136.2, subd. (i)].) As such, there was no basis to include Walker’s children as protected parties. Finally, the trial court expressed its intention to “let the family court deal with” any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling. Based on the foregoing, we modify items 3, 9, and 14 of the CPO to remove the pretrial order, remove the children as protected persons, and authorize an exception for future orders from a family, juvenile, or probate court regarding exchange of the children or court-ordered visitation.
4 IV. DISPOSITION Items 3, 9, and 14 of the CPO are vacated. The trial court shall issue an amended CPO in which (1) the children are not listed as protected persons in item 3; (2) the pretrial order in item 9 is deleted; and (3) there is an exception to the CPO under item 14(b). The judgment is otherwise affirmed.
RUBIN, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.