Filed 5/25/16 P. v. Gary CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070139
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F14901480)
                   v.

MATTHEW ALAN GARY,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
       Defendant Matthew Alan Gary was convicted by jury trial of attempted second
degree robbery (Pen. Code, §§ 664, 211; count 1)1 and misdemeanor battery (§ 242;
count 2). The trial court sentenced him to two years in prison for the attempted robbery
and stayed punishment on the battery count pursuant to section 654. The court issued
protective orders under section 136.2, restricting defendant’s future contact with his two
victims. On appeal, defendant contends the trial court’s post-trial protective orders
should be stricken. The People concede and further point out that the trial court imposed
an unauthorized sentence by failing to sentence defendant on the battery count. We will
strike the no-contact protective orders, remand for sentencing on the battery count, and
affirm in all other respects.
                                         FACTS
       On February 10, 2014, at 5:25 p.m., Phyllis P. and Arlene L. were walking back to
the women’s shelter after eating dinner at the Fresno Rescue Mission. They noticed
defendant walking in the opposite direction with a shopping cart. He looked at Arlene
and she wished him a good night. After they passed each other, defendant grabbed
Arlene’s purse with both hands. They struggled for the purse but Arlene would not let it
go. When defendant raised his fist as if to strike Arlene, Phyllis began hitting defendant.
He relented, retrieved his shopping cart, and walked away. Arlene and Phyllis called 911
and identified defendant.
                                      DISCUSSION
I.     Unauthorized Sentence
       At the sentencing hearing, the following occurred:

              “[THE COURT:] Court has reviewed the factors in mitigation and
       the factors in aggravation. The Court finds that even though the factors in
       aggravation prevail, the Court does select the middle term. Therefore, the
       defendant is sentenced to state prison for the middle term of two years for

1      All statutory references are to the Penal Code.


                                             2.
       Count One, a violation of Penal Code Section 664/211, attempted second
       degree robbery.

              “In regards to Count Two, which is a violation of Penal Code
       Section 242—neither counsel addressed this—is there a [section] 654
       issue?

              “[PROSECUTOR]: I believe so, Your Honor.

              “[DEFENSE COUNSEL]: I would believe so as well.

              “THE COURT: All right. And the Court does find that under Penal
       Code Section 654, the—the elements are met and therefore the Court is
       staying any punishment in regards to a violation of Penal Code Section 242.
       Therefore, the defendant’s total prison commitment is two years.”
       The minute order states: “Count 2 stayed pursuant to PC 654.” The abstract of
judgment does not mention count 2.
       Section 654 generally precludes multiple punishments for a single physical act that
violates different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 358.) It also
prohibits separate punishment when several crimes are committed during an indivisible
course of conduct. (People v. Correa (2012) 54 Cal.4th 331, 336; People v. Ortiz (2012)
208 Cal.App.4th 1354, 1377.) When section 654 applies, the trial court should impose
sentence on the offense that provides for the longest potential term, then impose and stay
execution of sentence on all other counts, with the stay to become permanent upon the
completion of the term not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v.
McCoy (2012) 208 Cal.App.4th 1333, 1338; People v. Alford (2010) 180 Cal.App.4th
1463, 1466, 1472 (Alford).) If the court imposes no sentence at all, the result is an
unauthorized absence of sentence. (Alford, at p. 1472.)
       As the record demonstrates, the trial court failed to impose sentence on count 2
before staying the sentence pursuant to section 654. This failure resulted in an
unauthorized absence of sentence. We will remand to permit the trial court to impose
sentence on count 2.



                                             3.
II.       Protective Orders
          Also at the sentencing hearing, the prosecutor requested issuance of protective
orders:

                “[PROSECUTOR]: And Your Honor the People did submit a
          criminal protective order for the two victims. Would the Court consider
          that?

                  “THE COURT: Yes…. [¶] Court has also received a request for
          criminal protective order in regards to Arlene [L.] and Phyllis [P.] Court
          will make the following orders, and this is an order under Penal Code
          Section 136.2: [¶] Court orders [defendant] not to harass, strike, threaten,
          assault, follow, stalk, molest, or destroy or damage the personal or real
          property or disturb the peace or keep under surveillance or block the
          movements of the protected persons, namely, Arlene [L.] and Phyllis [P.]
          [¶] … [¶] Defendant must not attempt to or actually prevent or dissuade
          any victim or witness from attending a hearing or testifying or making a
          report to any law enforcement agency or person. [¶] Defendant must not
          take any action to obtain the addresses or locations of the protected persons
          or their family members. [¶] … [¶] [D]efendant must not have and the
          Court orders that he have no personal, electronic, telephonic, or written
          contact with the protected persons. He shall not have any contact with the
          protected persons named above through a third party except as—except his
          attorney of record. The protected persons may record any prohibited
          communications made by the defendant.

                 “At this time the Court will sign the protective order. And this
          protective order shall expire three years from today’s date.

                  “[PROSECUTOR]: And, Judge, I guess we should put on the record
          that it’s not the party’s intention to preclude [defendant] from eating at the
          Poverello House or the Mission. He’s just not to have any contact.

                 “[DEFENSE COUNSEL]: That’s our understanding.

                 “THE COURT: All right. Perhaps you can add that. [¶] … [¶]

                 “[PROSECUTOR]: And the language added was defendant may eat
          at Poverello House and the Mission. [¶] … [¶]

                “THE COURT: And at this time the deputy is ordered to serve
          [defendant] with the protective order.”



                                                4.
       The People concede, and we agree, that the trial court lacked authority to issue the
no-contact protective orders under section 136.2 at sentencing. “[S]ection 136.2,
subdivision (a) authorizes issuance of a protective order during the duration of criminal
proceedings. Yet, this statute does not authorize issuance of a protective order against a
defendant who has been sentenced to prison unless the defendant has been convicted of
domestic violence.” (People v. Robertson (2012) 208 Cal.App.4th 965, 996, citing
People v. Stone (2004) 123 Cal.App.4th 153, 158 and People v. Ponce (2009) 173
Cal.App.4th 378, 382-383.)
       “In addition, ‘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.’ [Citation.] Here, the
prosecutor did not make an offer of proof or argument justifying the need for a no-contact
order. The trial was finished and [defendant] was sentenced to prison. There was no
evidence that after being charged [defendant] had threatened a witness or had tried to
unlawfully interfere with the criminal proceedings. ‘[A] prosecutor’s wish to have such
an order, without more, is not an adequate showing sufficient to justify the trial court’s
action.’ [Citation.] Accordingly, we agree with the parties that the no-contact order is
unauthorized and must be stricken.” (People v. Robertson, supra, 208 Cal.App.4th at
p. 996.)
                                      DISPOSITION
       The protective orders that were orally imposed during the October 8, 2014
sentencing hearing and served upon defendant are stricken. The matter is remanded to
the trial court with instructions to impose sentence on count 2 (misdemeanor battery) and
then stay the sentence pursuant to section 654. The court is directed to prepare a
corrected minute order reflecting the stayed misdemeanor sentence and to forward a
certified copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.

                                             5.
