         Filed 10/14/15 P. v. O’Connor CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D066736

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN330257)

JOSEPH PATRICK O'CONNOR,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Affirmed as modified and remanded with directions.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson, Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for

Plaintiff and Respondent.
       Appellant Joseph Patrick O'Connor pleaded guilty to one count of committing a

lewd act upon a child, his stepdaughter. (Pen. Code1 § 288.5, subd. (a).) In exchange,

the parties stipulated O'Connor would serve a six-year prison term and the People would

dismiss pending charges of lewd act upon the same victim (§ 288, subd. (a)) and one

count of violation of protective order (§ 166, subd. (c)(1)). The parties stipulated the

preliminary hearing transcript provided the factual basis for the plea.

       O'Connor's sole contention on appeal is that the court lacked the authority to issue

the protective order. The People concede the point, but argue the court had authority to

issue the protective order as to the biological daughter under section 136.2, subdivision

(i)(1) because she qualifies as a "victim" under section 136's definition, which applies to

"any natural person with respect to whom there is reason to believe that any crime as

defined under the laws of this state or any other state or of the United States is being or

has been perpetrated or attempted to be perpetrated." We will order the protective order

be stricken and remand with directions set forth below.

                                          BACKGROUND

       At the preliminary hearing, the victim, M.V., who was 17 years old at the time of

trial, testified that that year she decided to talk to a counselor and later the police about

O'Connor's sexual molestation of her, which started when she was approximately eight or

nine years old. M.V. was worried that O'Connor might be sexually molesting his




1      Statutory references are to the Penal Code.
                                               2
biological daughter, who was about eight years old, and had started "acting weird at

home," and "acting a lot more sexually mature than kids her age should be."

       The court sentenced O'Connor according to the plea agreement's terms, and issued

a 10-year protective order under section 646.9, subdivision (k), barring him from

contacting both M.V. and his biological daughter.

                                         DISCUSSION

       The People concede, and we agree, the court's protective order was not authorized

under section 646.9, subdivision (a) because O'Connor was not convicted under that

statute, which deals with stalking. Rather, his conviction was for committing a lewd act

upon a child under section 288.5, subdivision (a). Accordingly, the protective order must

be stricken.




                                            3
                                        DISPOSITION

      The judgment is modified to strike the protective order; as so modified, the

judgment is affirmed. The matter is remanded for the trial court to amend the abstract of

judgment reflecting this modification and forward a certified copy of the amended

abstract to the Department of Corrections and Rehabilitation.




                                                                          O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


AARON, J.




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