People v. Mercado CA4/1
- Proceeding
- appeal from judgments
- Trial court
- Superior Court of San Diego County · No. SCS332935, SCD300405
- Trial judge
- Garry G. Haehnle
- Outcome
- reversed in part — Affirmed in part, reversed in part.
- Area
- criminal
- Panel
- Buchanan (author), Michele M. Castillo, Bermudez
Analysis
The trial court imposed a 10-year post-conviction criminal protective order under Penal Code section 136.2, subdivision (i), following Mercado's guilty plea to assault. The Court of Appeal vacated the protective order, accepting the People's concession that the order was unauthorized because the victim was not in a domestic relationship with the defendant, and affirmed the rest of the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a 10-year post-conviction criminal protective order under Penal Code section 136.2, subdivision (i).“The People concede that the protective order was unauthorized under Penal Code2 section 136.2, subdivision (i), and that the order should be stricken. We accept the People’s concession, vacate the protective order, and otherwise affirm the judgments.” | unclear | error (statutory interpretation) | agree with court The appellate court correctly identified that the statute requires the underlying crime to involve domestic violence as defined by Penal Code section 13700 or Family Code section 6211. Since the victim, L.S., was not in a qualifying domestic relationship with Mercado, the trial court lacked statutory authority to issue the order under this specific subdivision. The court properly accepted the People's concession of error and vacated the order. |
Authorities
- relied: People v. Beckemeyer (2015) 238 Cal.App.4th 461 — For a trial court to properly issue a protective order under Penal Code section 136.2, subdivision (i), the defendant must have been convicted of a crime involving domestic violence against the victim, requiring a domestic relationship as defined by statute.
- relied: People v. Delarosarauda (2014) 227 Cal.App.4th 205 — Supports the procedural posture or legal standard regarding the validity of protective orders under Penal Code section 136.2, subdivision (i) when statutory prerequisites are not met.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory definition of domestic violence to the facts, noting the absence of a qualifying relationship between the defendant and the victim. It relies on appropriate case law to support the conclusion that the protective order was unauthorized under the specific subdivision cited.
How this analysis was made · dispute it
unusual dispositionAt a consolidated sentencing hearing the trial court sentenced Mercado to eight years eight months and, in the case where he pled guilty to assaulting L.S. with great bodily injury, imposed a 10-year post-conviction criminal protective order under Penal Code section 136.2, subdivision (i). On appeal the People conceded the order was unauthorized because the assault on L.S. was not a crime involving domestic violence, and the Court of Appeal accepted the concession, vacated the protective order, and otherwise affirmed the judgments.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a 10-year post-conviction criminal protective order under Penal Code section 136.2, subdivision (i), protecting victim L.S.“As the People concede, Mercado did not have such a relationship with L.S., which means the assault did not qualify as a crime of domestic violence.” | unclear | error (statutory interpretation) | agree with court Section 136.2(i)(1) authorizes a post-conviction protective order only where the defendant was convicted of a crime involving domestic violence as defined in Penal Code section 13700 or Family Code section 6211, or of other enumerated offenses (human trafficking, specified sex offenses, gang participation). Both definitions require a qualifying relationship between the defendant and the victim (spouse, cohabitant, dating partner, co-parent, or relative within the second degree). L.S. was the new partner of Mercado's ex-girlfriend; she had no relationship with Mercado himself that fits any category, and the assault conviction under section 245(a)(4) is not otherwise enumerated. The court did not state a standard of review, but whether a statute authorizes an order is a legal question, and the court's reading of the statutory text is correct. Vacating rather than remanding was appropriate because no alternative statutory basis for the order appears, and an unauthorized order may be corrected on appeal notwithstanding any failure to object. |
Authorities
- relied: People v. Beckemeyer (2015) 238 Cal.App.4th 461 — A protective order under section 136.2, subdivision (i)(1) requires that the defendant have been convicted of a crime involving domestic violence, i.e., abuse against a person with whom the defendant had a domestic relationship as defined in Penal Code section 13700 or Family Code section 6211.
- relied: People v. Delarosarauda (2014) 227 Cal.App.4th 205 — A post-conviction protective order under section 136.2, subdivision (i)(1) is unauthorized and must be stricken when it extends beyond what the statute permits.
The appellate opinion: sound — The court correctly read the plain text of section 136.2(i), section 13700, and Family Code section 6211 to require a domestic relationship between the defendant and the victim, found none on this record, and cited apt authority for striking an unauthorized order. Although it did not articulate a standard of review or expressly address whether any other statute could support the order, the concession and the clear statutory text make the result sound.
Opinion
Filed 9/10/26 P. v. Mercado 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 or dered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086865, D086866
Plaintiff and Respondent, (Super. Ct. Nos. SCS332935, SCD300405) v.
ROSARIO GUTIERREZ MERCADO,
Defendant and Appellant.
CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed in part, reversed in part. Asya Ovsepyan, 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, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION1 Rosario Gutierrez Mercado appeals from a criminal protective order entered as part of a judgment in one of two cases following a guilty plea in one of the cases and jury verdict in the other. The People concede that the protective order was unauthorized under Penal Code2 section 136.2, subdivision (i), and that the order should be stricken. We accept the People’s concession, vacate the protective order, and otherwise affirm the judgments. In August 2025, Mercado pled guilty to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and he admitted that he inflicted great bodily injury on the victim, L.S. (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8).) According to preliminary hearing testimony, L.S. had just ended her relationship with Mercado’s ex-girlfriend and the mother of his two children when the assault occurred. In a separate case that went to trial shortly before Mercado pled guilty to assaulting L.S., a jury found Mercado guilty of robbery (Pen. Code, § 211), assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), battery with serious bodily injury (Pen. Code, § 243, subd. (d)), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), in connection with a road rage incident involving victim O.O. Mercado followed O.O. in his car after O.O. allegedly drove too close to Mercado’s car while his daughters were sitting inside it. After Mercado trailed O.O. to his residence, Mercado got out of his car and fought O.O., took O.O.’s neck chain, 1 We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. 2 Undesignated statutory references are to the Penal Code.
2 and then shoved O.O. onto the pavement. Officers found a firearm and methamphetamine during a subsequent search of Mercado’s home. The parties stipulated that Mercado had suffered a prior felony conviction. At a consolidated sentencing hearing in September 2025, the trial court sentenced Mercado to a total term of eight years eight months in prison. In the case involving L.S., the court imposed a post-conviction criminal protective order under section 136.2, subdivision (i), which prohibited contact with L.S. for 10 years. Penal Code section 136.2, subdivisions (i)(1) and (i)(2), provide in relevant part that “[w]hen a criminal defendant has been convicted of a crime involving domestic violence, as defined in [Penal Code] Section 13700 or in Section 6211 of the Family Code, . . . the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with” a victim or percipient witness of the crime. Section 13700 defines domestic violence to mean, in relevant part, “abuse committed against an adult or a minor who is 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.” Family Code section 6211 defines domestic violence to mean, in relevant part, “abuse perpetrated against . . . : (a) A spouse or former spouse[;] (b) A cohabitant or former cohabitant . . . [;] (c) A person with whom the respondent is having or has had a dating or engagement relationship[;] (d) A person with whom the respondent has had a child . . . [;] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected[;] (f) Any other person related by consanguinity or affinity within the second degree.”
3 Mercado pled guilty to assaulting L.S., who was in a relationship with his ex-girlfriend. But there is no evidence that Mercado had any separate relationship with L.S. For the trial court to have properly issued a protective order under Penal Code section 136.2, subdivision (i) in connection with L.S.’s assault, Mercado must have been convicted of a crime involving domestic violence against L.S., meaning he must have had a domestic relationship with her as defined by Penal Code section 13700 or Family Code section 6211. (See People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466.) As the People concede, Mercado did not have such a relationship with L.S., which means the assault did not qualify as a crime of domestic violence. Nor did Mercado’s conviction fall within any of the other offenses enumerated in the statute. (Pen. Code, § 136.2, subd. (i) [listing other qualifying offenses including human trafficking, specified sex offenses, and participation in criminal street gang].) We therefore accept the People’s concession that the post-conviction protective order was unauthorized under section 136.2, subdivision (i)(1). (See People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212.)
4 DISPOSITION The September 17, 2025 criminal protective order issued in San Diego Superior Court case number SCD300405 is vacated. The judgments are otherwise affirmed.
BUCHANAN, Acting P. J.
WE CONCUR:
CASTILLO, J.
BERMÚDEZ, J.