People v. Dain CA1/2

Filed 12/21/21 P. v. Dain CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A157756
v.
YACOB DAIN, (Sonoma County Super. Ct.
No. SCR7090531)
Defendant and Appellant.

A jury found defendant Yacob Dain guilty of home invasion robbery,
kidnapping, burglary, assault with a firearm, and four counts of false
imprisonment. The trial court found defendant had two prior felony
convictions, which qualified as both strikes under the Three Strikes law and
as “serious felony” convictions under Penal Code section 667, subdivision (a)
(§ 667(a)).1 The trial court imposed a determinate term of 30 years and a
consecutive indeterminate term of 27 years to life in prison and issued a
criminal protective order.
Defendant raises claims of evidentiary and instructional error,
insufficiency of the evidence of the prior conviction allegations, and
sentencing error. We reject his two primary claims that (1) the victims’
identification of defendant should have been excluded on the ground the in-

1 Further undesignated statutory references are to the Penal Code.

1
field identification procedure was unduly suggestive and (2) instructing the
jury with CALCRIM No. 315 violated his due process rights.
The Attorney General concedes the false imprisonment conviction
involving the kidnap victim (count 5) must be reversed because it is a lesser
included offense of kidnapping, and that 10 years of the determinate term
were improperly imposed under section 667(a). We accept these concessions.
We also agree with defendant that the trial court’s findings of prior
strike/serious felony convictions were not supported by the evidence and the
criminal protective order was unauthorized.
Accordingly, we vacate the sentence, reverse count 5, reverse the
findings of prior strike/serious felony convictions, and strike the criminal
protective order, and we remand the matter for retrial of the prior conviction
allegations and resentencing. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Around 2:00 a.m. on October 18, 2017, Jess and Brandi Smith and their
two daughters were asleep in their home in Santa Rosa when Jess and
Brandi were awakened by their dog barking. When Jess got up to check on
the dog, he discovered three or four men entering his dining room through a
large window. The intruders all had pistols, and they were wearing hoodies
pulled tight around their faces. Jess ran toward his bedroom and was tackled
from behind. His attacker put Jess in a chokehold, held a .45 caliber pistol to
his head, and forced him to his bedroom. Another man pointed a gun at
Brandi. The intruders cursed and said, “Where the fuck is it?” and ransacked
their bedroom.
Jess was dragged to the garage, where there was a safe containing
jewelry and firearms, and told to open the safe. After Jess attempted and
failed to open the safe, he was struck in the head with the pistol. Jess yelled

2
out the combination; the men opened the safe but continued to demand,
“where is it?” Jess was part of a marijuana collective, and he realized the
intruders were looking for marijuana. He showed them a key to a shed, and
they dragged him outside to the shed where he pointed to boxes that
contained marijuana. One of the men told Jess, “shut up and lay here and I
won’t fucking shoot you,” and the men started grabbing things in the shed.
Eventually, the intruders left the shed, and Jess got up, ran to the front of
the house, and saw a large SUV driving away.
Meanwhile, the Smiths’ daughters (ages 20 and 9 years old at the time)
had been forced into a bathroom. Brandi was dragged into the bathroom
with her daughters. After it became quiet in the house, the older daughter
left the bathroom and ran to a neighbor’s house, and the neighbor called 911.
Brandi also called 911.
The initial 911 call reporting the home invasion was made around 2:06
a.m. Ten minutes later, police pulled defendant over for a traffic stop in a
shopping center parking lot about a mile from the Smiths’ house. Defendant
was alone in a black Kia Sorento.2 In defendant’s vehicle, police observed a
jewelry box, a bracelet, and 14 one-pound bags of marijuana, all of which
belonged to the Smiths.
The same early morning, Jess and Brandi were taken for an in-field
identification (also referred to as a “showup”) at the shopping center parking
lot. Jess was not able to identify defendant, and Brandi said she was 80
percent sure defendant was one of the men who invaded her home. At trial,
however, Jess identified defendant as one of the intruders who was
“[t]hrowing [his] bed,” and Brandi testified she was 100 percent sure

2 The Kia was not the SUV Jess saw the intruders drive away in.

3
defendant was one of the intruders, and she had seen him push the mattress
in her bedroom.
At trial, defense counsel did not dispute that defendant had the Smiths’
property shortly after the home invasion and acknowledged this was “not a
coincidence.”3 But the defense argued Jess’s and Brandi’s identifications of
defendant were not credible and, disregarding their testimony, there was no
evidence defendant had been in the Smiths’ house.
DISCUSSION
A. Identification Procedure
Defendant contends the identification procedure used in the
investigation was so unduly suggestive that admission of Jess’s and Brandi’s
identification of defendant violated his right to a fair trial and due process.
1. Background
Defendant filed a motion in limine to exclude all witness identifications
of defendant arguing, “the field showup procedure [at the shopping center
parking lot shortly after the home invasion] was tainted as a result of the
unduly and impermissibly suggestive procedures used by law enforcement.”
He further argued that the witnesses’ identification of defendant at the
preliminary hearing was tainted by the earlier field showup procedure and
that the preliminary hearing itself was another suggestive circumstance
since defendant was presented by himself in jail clothing.4

3In his closing argument, defense counsel conceded, “Obviously, at
some point after the events [at the Smiths’ house] Mr. Dain met with the
individuals in that home and obtained the property from that house.”
4 As mentioned, Jess was unable to identify defendant at the showup,
but he identified defendant at trial. He also identified defendant at the
preliminary hearing. Brandi identified defendant at the preliminary hearing
as well.

4
 Before ruling on the motion, the trial court held a hearing under
Evidence Code section 402 where Jess and Brandi testified.
Jess testified that police officers came to his house after the incident
and told him they had a suspect. He was taken in a police car to view
defendant. An officer asked if he would be able to identify the men who were
in his house, and he said, “I don’t think so, man.” They “drove up to an open
vehicle with a man standing cuffed.” Jess stayed in the police car and viewed
defendant from a distance of about a car length. He could also see his
marijuana and personal things inside the vehicle. Defense counsel asked
whether the fact his marijuana was right there was part of his consideration,
and Jess responded, “Yeah, I would assume he was the one—one of the people
involved.” But Jess did not identify defendant as one of the perpetrators at
the field showup. He was “[i]n shock, very shaken” and still bleeding from his
head injury at the time.
Prior to the preliminary hearing, Jess saw a photograph of defendant in
the newspaper, but he did not take that into account when he testified at the
hearing. Asked how he was able to identify defendant as one of the
perpetrators at the preliminary hearing, Jess answered, “his face—basically
his size, his face, just how I kind of remember, recall from that night.” He
also said he had a better view of defendant in the courtroom than in the
parking lot. Jess thought the men had been in his house about 10 minutes,
and he remembered seeing defendant’s face in the bedroom when defendant
was throwing furniture. Jess was able to see defendant’s eyes, nose, mouth,
and “facial shape.”
Brandi testified she called 911, and the police responded at her house
within a few minutes. She was taken by herself to the showup; her
understanding was she was going to see a person who “may or may not have

5
been somebody involved in the incident.” It was about 3:00 or 3:30 a.m., but
defendant was standing in a well-lit area. Brandi did not recall seeing any
property taken from her home at the time she identified defendant in the
parking lot. She told the police she was 80 percent sure defendant had been
in her home that night. Her identification was based on her observation of
the center of his face, including the eyes, nose, and mouth. Brandi testified
that she had a very clear view of defendant in her home and that she looked
at him for about two or three minutes; he was one of the men who tossed her
mattress, he did not hold a gun to her head. At the preliminary hearing, she
based her identification on her memory of seeing defendant in her home, not
because she saw his photo in the newspaper.
After hearing counsels’ argument, the trial court denied defendant’s
motion to exclude the witnesses’ identifications. The court found the showup
procedure was not unduly suggestive, noting, “A lot happened in a very short
period of time; open doors of a vehicle, not uncommon on the site of a stop,
traffic stop, bringing one to the site with doors of cars open is not unheard of
and doesn’t smack of . . . a staging to make it unduly suggestive.”
2. Analysis
“In determining whether a defendant’s right to due process is violated
by the admission of identification evidence, we consider ‘(1) whether the
identification procedure was unduly suggestive and unnecessary, and, if so,
(2) whether the identification itself was nevertheless reliable under the
totality of the circumstances.’ [Citation.] A claim that an identification
procedure was unduly suggestive raises a mixed question of law and fact to
which we apply a standard of independent review, although we review the
determination of historical facts regarding the procedure under a deferential
standard.” (People v. Clark (2016) 63 Cal.4th 522, 556–557.)

6
 “The burden is on the defendant to demonstrate unfairness in the
manner the show-up was conducted, i.e., to demonstrate that the
circumstances were unduly suggestive. [Citation.] [The defendant] must
show unfairness as a demonstrable reality, not just speculation.” (In re
Carlos M. (1990) 220 Cal.App.3d 372, 386 (Carlos M.).)
California courts have long recognized that, although suggestive, a
single person field identification is not inherently unfair. (See, e.g., People v.
Bisogni (1971) 4 Cal.3d 582, 587 (Bisgogni); People v. Ochoa (1998) 19 Cal.4th
353, 413; People v. Garcia (2016) 244 Cal.App.4th 1349, 1359 (Garcia).)
“[F]or a witness identification procedure to violate the due process clauses,
the state must, at the threshold, improperly suggest something to the
witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive
procedure.” (Ochoa at p. 413, italics added.) However, courts have weighed
the risks and benefits of single person showups and consistently concluded,
“the law favors [such identification procedures] when [conducted] in close
proximity in time and place to the scene of the crime” (In re Richard W.
(1979) 91 Cal.App.3d 960, 970) because “the advantages of prompt
identification or elimination of suspects through an in-field showup outweigh
the potential prejudice of such a procedure to the suspect” (People v.
Rodriguez (1987) 196 Cal.App.3d 1041, 1049). (See People v. Cowger (1988)
202 Cal.App.3d 1066, 1071–1072 [“A prompt on-the-scene confrontation
between a suspect and a witness enables the police to exclude from
consideration innocent persons so a search for the real perpetrator can
continue while it is reasonably likely he is still in the immediate area.
[Citation.] Such knowledge is of overriding importance not only to the police
and the public, but also to the suspect himself”].) Thus, “ ‘[t]he law permits
the use of in-field identifications arising from single-person show-ups so long

7
as the procedures used are not so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification.’ ” (Garcia at p. 1359.)
Defendant has failed to demonstrate the identification procedure used
in this case was impermissibly suggestive. He argues the procedure “singled
[him] out” and “suggested that he was the suspect and was thus, unduly
suggestive.” He points to the circumstances that he was alone and
handcuffed in a dark empty parking lot 1.2 miles from the Smiths’ home,
standing next to an SUV containing the Smiths’ property. But, other than
the fact that the Smiths’ property was nearby, these circumstances were the
result of the showup being conducted “in close proximity in time and place to
the scene of the crime,” which is favored under the law. (In re Richard W.,
supra, 91 Cal.App.3d at p. 970, italics added.)5
Defendant asserts courts have “cautioned that a single person showup
should not be used without a ‘compelling reason,’ ” citing In re Hill (1969) 71
Cal.2d 997, and Bisogni, supra, 4 Cal.3d 582. A similar argument was
rejected in Carlos M.: “Appellant contends, incorrectly, that single-person
show-ups are impermissible absent a compelling reason. To the contrary,
single-person show-ups for purposes of in-field identifications are encouraged,
because the element of suggestiveness inherent in the procedure is offset by
the reliability of an identification made while the events are fresh in the
witness’s mind, and because the interests of both the accused and law
enforcement are best served by an immediate determination as to whether
the correct person has been apprehended.” (220 Cal.App.3d at p. 387.)6

5That defendant was handcuffed did not render the showup procedure
unduly suggestive. (Carlos M., supra, 220 Cal.App.3d at p. 386.)
Alternatively, one could read the cases as illustrating that the
6

circumstance of presenting a witness with an apprehended suspect
immediately after the crime while the incident is fresh in the witness’s mind

8
 As to the fact that the Smiths’ property was also in view, Brandi did
not recall seeing the property yet was able to identify defendant at the
showup, while Jess did see his property but was unable to make an
identification. These circumstances would seem to disprove defendant’s
claim that the presence of the stolen property was unduly suggestive.
In sum, we conclude the in-field identification procedure used in this
case was not unduly suggestive. Therefore, we do not reach the question
whether the identifications were reliable under the totality of the
circumstances. (People v. Avila (2009) 46 Cal.4th 680, 699 [“Because we have
concluded the lineup was not unduly suggestive, we need not consider
whether it was reliable under the totality of the circumstances”].)
Defendant further argues Jess’s and Brandi’s identification of
defendant at the preliminary hearing was tainted by the unduly suggestive
in-field identification procedure. Because we reject the premise that the
showup was unduly suggestive, this argument fails. Finally, we note that
defendant offers no authority for the proposition that preliminary hearing
identifications are generally impermissibly suggestive.
B. CALCRIM No. 315
Next, defendant contends the court violated his right to due process
when it instructed under CALCRIM No. 315 that the jurors could consider
the witnesses’ level of certainty when evaluating testimony.7 Since the

provides a compelling reason. (See, e.g., In re Richard W., supra, 91
Cal.App.3d at p. 970; Garcia, supra, 244 Cal.App.4th at p. 1359.) In contrast,
the showup in In re Hill was two-and-a-half weeks after the robbery (71
Cal.2d at p. 1005), and the identification procedure in People v. Bisogni
occurred many months after the robbery (4 Cal.3d at p. 587).
7The jury was instructed with the following version of CALCRIM No.
315. “You have heard eyewitness testimony identifying the defendant. As
with any other witness, you must decide whether an eyewitness gave truthful

9
parties completed appellate briefing, the California Supreme Court has
rejected this argument in People v. Lemcke (2021) 11 Cal.5th 644, 661
(Lemcke). There, the court concluded, considering all the instructions given

and accurate testimony. [¶] In evaluating identification testimony, consider
the following questions:
“• Did the witness know or have contact with the defendant before the
event?
“• How well could the witness see the perpetrator?
“• What were the circumstances affecting the witness’s ability to
observe, such as lighting, weather conditions, obstructions, distance, and
duration of observation?
“• How closely was the witness paying attention?
“• Was the witness under stress when he or she made the observation?
“• Did the witness give a description and how does that description
compare to the defendant?
“• How much time passed between the event and the time when the
witness identified the defendant?
“• Was the witness asked to pick the perpetrator out of a group?
“• Did the witness ever fail to identify the defendant?
“• Did the witness ever change his or her mind about the
identification?
“• How certain was the witness when he or she made an identification?
“• Are the witness and the defendant of different races?
“• Was the witness able to identify the defendant in a photographic or
physical lineup?
“• Were there any other circumstances affecting the witness's ability to
make an accurate identification?
“The People have the burden of proving beyond a reasonable doubt that
it was the defendant who committed the crime. If the People have not met
this burden, you must find the defendant not guilty.”

10
and the trial record, “listing the witness’s level of certainty as one of 15
factors the jury should consider when evaluating an eyewitness identification
did not render [the defendant’s] trial fundamentally unfair or otherwise
amount to a due process violation.”8
Specifically, our high court rejected defendant’s current claims that the
instruction lowered the prosecution’s burden of proof (Lemcke, supra, 11
Cal.5th at p. 657 [“we find nothing in CALCRIM No. 315’s instruction on
witness certainty that operates to ‘lower the prosecution’s burden of proof’ ”])
and that it denied him a meaningful opportunity to present a complete
defense (id. at p. 660 [the “argument that the certainty instruction violated
his due process rights by denying him ‘a “meaningful opportunity to present a
complete defense” ’ . . . fares no better”]).
Here, defense counsel was able to put on a vigorous defense on the
issue of identity. He cross-examined Jess and Brandi in detail on their
ability to see the perpetrators and whether they focused on the perpetrators’
faces during the chaos of the nighttime home invasion. Defense counsel
argued to the jury that the showup procedure was “tainted” and the
witnesses were not liars, but they “were wrong” in their identification of
defendant. The jury was instructed that the defendant is presumed innocent
and the People have the burden of proving guilt beyond a reasonable doubt
(CALCRIM No. 220), that “[p]eople sometimes honestly forget things or make

8 In Lemcke, the trial court gave a version of CALCRIM No. 315 that
listed 15 factors to consider in evaluating eyewitness identification evidence,
and the defendant challenged the factor, “How certain was the witness when
he or she made an identification?” (Lemcke, supra, 11 Cal.5th at p. 646.) In
the present case, the trial court gave a version of CALCRIM No. 315 that
listed 14 factors, and defendant challenges the identically worded factor
challenged in Lemcke.

11
mistakes about what they remember” (CALCRIM No. 226), and that the
“People have the burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime” (CALCRIM No. 315). (Lemcke, supra,
11 Cal.5th at p. 658.) On this record, defendant has not shown that
instructing the jury on the certainty factor in CALCRIM No.315 violated his
due process rights.
In light of our rejection of defendant’s first two appellate claims, his
argument these two claimed errors cumulatively prejudiced him also fails.
C. Count 5 – False Imprisonment
The jury found defendant guilty of kidnapping Jess (count 2) and false
imprisonment by violence of Jess (count 5). Defendant argues count 5 must
be reversed because false imprisonment is a lesser included offense of
kidnapping. The Attorney General agrees, as do we. (See People v. Chacon
(1995) 37 Cal.App.4th 52, 65 [false imprisonment is a lesser included offense
of kidnapping]; People v. Moran (1970) 1 Cal.3d 755, 763 [where a defendant
is convicted of a greater offense and a lesser included offense, “the conviction
of [the greater] offense is controlling, and the conviction of the lesser offense
must be reversed”].) Count 5 is reversed.
D. Prior Strike/Serious Felony Conviction Findings
The district attorney alleged defendant had two prior felony convictions
of participation in a criminal street gang in violation of section 186.22,
subdivision (a) (§ 186.22(a)), with conviction dates in 2006 and 2007. These
two prior felony convictions were used for multiple purposes in connection
with the potential sentence in this case. It was alleged that these prior
convictions were strikes under the Three Strikes law (§§ 667, subds. (d)-(i);
1170.12) and that they were serious felonies (§ 667(a)). Following the jury
trial, there was a court trial on these allegations. The prosecution presented

12
evidence of the two prior criminal cases, including defendant’s no contest
pleas in both cases, and the court found the allegations true.
Defendant does not dispute that participation in a criminal street gang
in violation of section 186.22(a) qualifies as a strike under section 667,
subdivisions (b) to (i), and that it also qualifies as a serious felony under
section 667(a). (See §§ 667, subds. (a)(4), (d)(1); 1192.7, subd. (c)(1).) Instead,
defendant contends there was insufficient evidence he was convicted of a
violation of section 186.22(a) “as that crime is now understood,” relying on
People v. Strike (2020) 45 Cal.App.5th 143 (Strike). We agree with defendant
that Strike applies and that reversal and retrial of the two prior conviction
allegations is required under these circumstances.
In Strike, the defendant pleaded guilty to gang participation in
violation of section 186.22(a) in 2007, and the question on appeal was
whether this 2007 conviction qualified as a strike in the defendant’s later
criminal case in 2017. (Strike, supra, 45 Cal.App.5th at pp. 146–147.) The
question arose because the interpretation of the elements of the offense
changed in 2012. As the Strike court explained, “At the time defendant
entered his plea, an individual could be convicted of violating section
186.22(a) as a sole perpetrator. Five years later, in People v. Rodriguez
(2012) 55 Cal.4th 1125 . . ., the California Supreme Court clarified section
186.22(a) is not violated by a gang member acting alone but is violated only
when an active gang member commits a felony offense with one or more
members of his or her gang.” (Id. at p. 146.) Because the defendant entered
his plea before Rodriguez, his conviction alone was “inconclusive on its face as
to whether it qualified as a strike.” (Id. at p. 150.) To prove the strike, “the
prosecution could not simply rely on the fact defendant had suffered a
conviction for violating section 186.22(a). The prosecution had to prove

13
defendant admitted all of the elements of the offense as explained by
Rodriguez, including that he committed a felony offense with another
member of his gang.” (Id. at p. 150.)
The Strike court thus reversed the prior strike finding because there
was “no indication in the appellate record that defendant admitted the
factual allegations in the charging document as part of the factual basis for
his plea.” (Strike, supra, 45 Cal.App.5th at p. 154.) The court noted,
however, that reversal of a true finding on the prior strike conviction
allegation did not prevent retrial of the allegation. “[T]he appropriate
remedy is to remand the case to the trial court for a new hearing on the prior
strike allegation ‘to permit the People to demonstrate to the trial court, based
on the record of the prior plea proceedings, that defendant’s guilty plea
encompassed a relevant admission about the nature of [his] crime.’ ” (Ibid.,
quoting People v. Gallardo (2017) 4 Cal.5th 120, 139.)
The Attorney General urges that Strike does not apply, noting that
defendant in this case did not raise the issue below. To the extent the
Attorney General is suggesting defendant’s claim has been forfeited, we
disagree. “No objection is necessary to preserve a challenge to the sufficiency
of the evidence for appeal.” (In re I.A. (2020) 48 Cal.App.5th 767, 776; see
People v. McCullough (2013) 56 Cal.4th 589, 596 [“Parties may generally
challenge the sufficiency of the evidence to support a judgment for the first
time on appeal because they ‘necessarily objected’ to the sufficiency of the
evidence by ‘contesting [it] at trial.’ ” (Italics added)].)
The Attorney General also argues defendant’s claim is in essence an
attack on the “validity” of his 2006 and 2007 convictions and as such, it must
be raised in a habeas corpus proceeding. As defendant responds, however, he
“is not challenging the validity of his no contest pleas or seeking to undo

14
those pleas, but rather, is challenging whether the trial court’s finding, in the
current case, that those offenses constitute serious felony priors is supported
by substantial evidence.” The Strike court explained the trial court’s task in
deciding the prior strike allegation was to determine “whether [the]
defendant had admitted all the elements of section 186.22(a) as now
understood, when, in 2007, he pleaded guilty to violating section 186.22(a);
specifically, whether defendant had admitted committing a felony offense
with at least one other member of his gang.” (Strike, supra, 45 Cal.App.5th
at p. 146.) Likewise, in this case, the trial court’s task was to determine
whether, when he entered no contest pleas in 2006 and 2007, defendant
admitted all the elements of gang participation as the crime is now
understood. But the court’s findings either way would not affect the validity
of defendant’s 2006 and 2007 convictions. The Attorney General’s argument
fails.
Here, the trial court did not consider whether defendant admitted all
the elements of gang participation as the crime is now understood. The
appropriate remedy under Strike is first to reverse the findings that
defendant’s 2006 and 2007 convictions of violation of section 186.22(a) qualify
as strikes and serious felonies and vacate the sentence (which was based on
the prior strike and serious felony findings), and second to remand the matter
to permit the prosecution to retry the allegations based on the record of the
prior plea proceedings. (Strike, supra, 45 Cal.App.5th at p. 154.) This will be
our disposition here.
E. False Imprisonment is Not a “Serious Felony” Under Section 667(a)
Defendant was convicted of home invasion robbery (count 1),
kidnapping of Jess (count 2), first degree burglary (count 3), assault with a
firearm of Jess (count 4), false imprisonment of Jess (count 5), false

15
imprisonment of Brandi (count 6), false imprisonment of the older Smith
daughter (count 7), and of false imprisonment of the younger daughter (count
8). The trial court sentenced defendant to an indeterminate term for count 1
and imposed and stayed indeterminate terms for counts 2 through 5. The
court imposed a determinate aggregate sentence for counts 6 through 8 and
then added two five-year enhancements for the two prior serious felony
convictions pursuant to section 667(a).
The five-year enhancement of section 667(a) only applies when a
“person is convicted of a serious felony” in the current criminal case and has a
prior serious felony conviction. Defendant argues the two section 667(a)
enhancements in the determinate sentence, 10 years total, must be stricken
because false imprisonment is not a serious felony. The Attorney General
concedes the issue. As we have explained, we are reversing count 5,
reversing the prior strike/serious felony conviction findings, vacating the
sentence, and remanding for retrial of the prior conviction allegations. We
nonetheless observe that the parties are correct on this issue. This means
that, even if on remand and retrial the trial court finds defendant’s 2006 and
2007 gang participation convictions qualify as serious felonies, it may not in
any event impose five-year enhancements for counts 6 through 8 because
false imprisonment is not a “serious felony” under section 667(a).9

9 We note that defendant also argues defense counsel was ineffective in
failing to move to strike the prior serious felony convictions under Senate Bill
No. 1393 (2017-2018 Reg. Sess). (See People v. Garcia (2018) 28 Cal.App.5th
961, 971 [Senate Bill No. 1393 granted trial courts authority to strike or
dismiss prior serious felony convictions for sentencing purposes where
previously the enhancement under section 667(a) was mandatory].) We need
not address this argument because the sentence is vacated. On remand, the
trial court will impose a new sentence in accordance with this decision, and, if
the prior serious felony allegations are found true after retrial, defense

16
F. Criminal Protective Order
At the close of the sentencing hearing, the trial court stated it was
issuing a three-year protective order for Jess, Brandi, and their two
daughters. The prosecution had not requested a protective order, and the
presentencing probation report did not recommend one. The court indicated
the order was issued under section 136.2, subdivision (i)(1).
Defendant contends the order is unauthorized and must be stricken.
He points out that section 136.2, subdivision (i)(1), is inapplicable because it
only applies to defendants who have been convicted of crimes involving
domestic violence and certain listed sex offenses. The Attorney General
acknowledges that section 136.2 does not apply but argues the trial court had
inherent authority to issue the order, citing Townsel v. Superior Court (1999)
20 Cal.4th 1084 (Townsel). We believe defendant has the better argument.
First, the issue is cognizable on appeal despite defendant’s failure to
object during the sentencing hearing. (See People v. Robertson (2012) 208
Cal.App.4th 965, 995 (Robertson) [noting a claim that a sentence is
unauthorized may be raised for the first time on appeal]; People v. Ponce
(2009) 173 Cal.App.4th 378, 381–382 (Ponce) [considering challenge to
protective order made for the first time on appeal “[b]ecause this case
involves the jurisdictional validity of the trial court’s decision”].)
Second, courts have rejected “inherent authority” as a justification for
protective orders issued in similar circumstances. In Ponce, the court
explained: “The Attorney General argues that, notwithstanding section
136.2, trial courts, independent of statute, have inherent authority to issue
appropriate protective orders to protect trial participants. . . . An existing

counsel will be free to argue the convictions should be dismissed in the
interest of justice.

17
body of statutory law regulates restraining orders. ‘ “[I]nherent powers
should never be exercised in such a manner as to nullify existing
legislation. . . .” ’ [Citation.] Where the Legislature authorizes a specific
variety of available procedures, the courts should use them and should
normally refrain from exercising their inherent powers to invent alternatives.
[Citation.] [¶] Moreover, even where a court has inherent authority over an
area where the Legislature has not acted, this does not authorize its issuing
orders against defendants by fiat or without any valid showing to justify the
need for the order.” (Ponce, supra, 173 Cal.App.4th at pp. 383–384.)
In People v. Corrales (2020) 46 Cal.App.5th 283 (Corrales), the court
rejected the respondent’s appeal to “inherent authority” and distinguished
Townsel. “Townsel was supported by ‘circumstances’ that raised ‘serious
concerns about juror safety.’ [Citation.] The defendant in Townsel had been
convicted of murdering one victim because she was a witness to a previous
crime and was also convicted of attempting to prevent or dissuade a witness.
Consequently the trial court’s order was justified because of the defendant’s
history of interfering with the judicial process by killing or threatening
witnesses. [Citation.] Townsel does not support the conclusion that a court
can issue a post judgment protective order under section 136.2 based on its
inherent authority.” (Id. at p. 286.)
In Robertson, the court concluded a no-contact order was unauthorized
where “the prosecutor did not make an offer of proof or argument justifying
the need for a no-contact order,” and “[t]here was no evidence that after being
charged[,] appellant had threatened a witness or had tried to unlawfully
interfere with the criminal proceedings.” (Robertson, supra, 208 Cal.App.4th
at p. 996.)

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 We find these cases persuasive. Here, the trial court did not offer any
good cause or cite any circumstances to justify the protective order. The
order is unauthorized and is stricken. (Corrales, supra, 46 Cal.App.5th at p.
287; Robertson, supra, 208 Cal.App.4th at p. 996; Ponce, supra, 173
Cal.App.4th at p. 386.)
DISPOSITION
Count 5, false imprisonment of Jess Smith, is reversed, and the
criminal protective order is stricken. The sentence is vacated, the findings
that defendant’s two prior convictions qualify as strikes under the Three
Strikes law and serious felonies under section 667(a) are reversed, and the
matter is remanded for retrial of the prior conviction allegations and
resentencing consistent with this opinion. The judgment is otherwise
affirmed.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Stewart, Acting P.J.

_________________________
Kline, J.*

A157756, People v. Dain

*Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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