Filed 6/26/15 P. v. Febbo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049788

         v.                                                            (Super. Ct. No. P00205)

RICK RYAN FEBBO,                                                       OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed as modified and remanded.
                   Kenneth J. Sargoy, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal, Collette C. Cavalier, and Kristen Hernandez, Deputy
Attorneys General, for Plaintiff and Respondent.
              Rick Ryan Febbo appeals from an order revoking his parole after the trial
court imposed a three-year criminal protective order pursuant to Penal Code
section 646.9, subdivision (k) (all further statutory references are to the Pen. Code).
Febbo argues the court erred by imposing the order pursuant to section 646.9, subdivision
(k), the stalking statute, because he was not convicted of stalking.
              We agree and strike the three-year criminal protective order imposed
pursuant to section 646.9, subdivision (k), and remand the matter to the trial court to
allow it to exercise its direction whether to enter a similar protective order pursuant to
different authority. The order is affirmed as modified.
                                           FACTS
              In November 2009, Febbo was convicted of first degree burglary (§ 459),
and indecent exposure (§ 314). The trial court sentenced him to two years in prison, and
he was released on parole in November 2010. He violated parole, his parole was
revoked, and he was released on parole again in November 2013 for a maximum period
of March 2014 with terms and conditions.
              On a couple early mornings in January 2014, Angela W. was in the shower
and looked out her bathroom window. Febbo stood nude on his illuminated outdoor
balcony and masturbated.
              A petition to revoke parole was filed. The petition alleged that on a few
mornings in January 2014, Febbo stood naked on his balcony and masturbated. At the
parole revocation hearing, Angela testified Febbo stood on his balcony and masturbated.
Angela said her bathroom window was about 30 to 35 feet below his balcony.
              The trial court concluded Febbo violated his parole conditions and revoked
parole. The court sentenced Febbo to jail for 180 days. The court issued a three-year
criminal protective order pursuant to section 646.9, subdivision (k), using a form Judicial
Council criminal protective order.



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                                        DISCUSSION
                Febbo argues the trial court erred in issuing a three-year criminal protective
order pursuant to section 646.9, subdivision (k). Febbo anticipates the Attorney
General’s forfeiture argument and asserts the issue is preserved for appellate review
because it was an unauthorized sentence in excess of the court’s jurisdiction.
                The Attorney General makes a number of contentions. She asserts the issue
is forfeited because defense counsel did not object to the order below. If the issue is
preserved for appellate review, she concedes the trial court lacked the authority to make
the order pursuant to section 646.9, subdivision (k). She claims however the court could
have imposed the order pursuant to section 3000.08, subdivision (f)(1), as a condition of
parole. As we explain below, we conclude the issue is preserved for appellate review, the
order must be stricken, and the matter must be remanded. We conclude the issue was not
forfeited for appellate review and accept the Attorney General’s concession. We decline
her invitation to let the order stand and remand the matter to the trial court.
A. Forfeiture
                The Attorney General claims Febbo forfeited appellate review of this issue
by not objecting to the order at the hearing. Febbo concedes he did not raise this issue
below. As a general rule, an appellant forfeits issues on appeal he did not raise in the trial
court. (People v. Smith (2001) 24 Cal.4th 849, 852.) However, there are exceptions to
this rule for unauthorized sentences and sentencing decisions in excess of the trial court’s
jurisdiction. (Ibid.) Febbo contends the issue here involves the jurisdictional validity of
the trial court’s imposition of the three-year criminal protective order during sentencing.
Thus, we will address the merits of his claim. (People v. Ponce (2009) 173 Cal.App.4th
378, 381-382.)




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B. Merits
              Febbo argues the trial court erred by imposing the three-year criminal
protective order pursuant to section 646.9, subdivision (k). We agree.
              Section 646.9, subdivision (a), states, “Any person who willfully,
maliciously, and repeatedly follows or willfully and maliciously harasses another person
and who makes a credible threat with the intent to place that person in reasonable fear for
his or her safety, or the safety of his or her immediate family is guilty of the crime of
stalking . . . .” Section 646.9, subdivision (k)(1), provides, “The sentencing court also
shall consider issuing an order restraining the defendant from any contact with the victim,
that may be valid for up to 10 years, as determined by the court. . . .”
              At the hearing, the trial court did not state the statutory basis for imposing
the three-year criminal protective order. However, the order indicates the court imposed
the order pursuant to section 646.9, subdivision (k). The Attorney General concedes this
was an improper basis to impose the order because Febbo was not convicted of stalking.
We accept the Attorney General’s concession.
              The Attorney General contends however the trial court could have imposed
the three-year criminal protective order as a condition of parole pursuant to
section 3000.08, subdivision (f)(1). We decline the Attorney General’s invitation to let
stand the three-year criminal protective order based on a different ground. We remand
the matter to the trial court to allow it to exercise its direction whether to enter a similar
criminal protective order pursuant to different authority. (People v. Selga (2008)
162 Cal.App.4th 113, 116, 121.)




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                                       DISPOSITION
               The three-year criminal protective order is stricken. The matter is
remanded to the trial court to allow it to exercise its discretion whether to enter a similar
criminal protective order pursuant to different authority. In all other respects, the order is
affirmed as modified.




                                                   O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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