Filed 11/6/15 P. v. Quinn 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050970

         v.                                                            (Super. Ct. No. 12HF1091)

DAVID MATTHEW QUINN,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed as modified.
                   John F. Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
              On the night of April 20, 2012, defendant David Matthew Quinn physically
attacked another man at a nightclub. A jury convicted defendant of battery with serious
bodily injury. (Pen. Code, § 243, subd. (d).) Defendant admitted allegations that he had
suffered a prior strike (Pen. Code, §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1))
and a prior serious felony (Pen. Code, §§ 667, subd. (a)(1), 1192.7). The court sentenced
defendant to eight years in prison, consisting of the middle term of three years for battery
and an additional five-year term based on the prior serious felony. The court exercised its
discretion by dismissing the prior strike in the interest of justice. The court also imposed
a protective order pursuant to Penal Code section 136.2, ordering defendant to stay away
from and have no contact with the victim for five years. The order was not issued under
Penal Code section 136.2, subdivision (i).
              Defendant’s only contention on appeal is that the court erred by imposing
the protective order. Defendant notes that this type of order cannot be imposed at
sentencing when the defendant is sentenced to prison. (See, e.g., People v. Ponce (2009)
173 Cal.App.4th 378, 381-386; People v. Stone (2004) 123 Cal.App.4th 153, 158-161.)
The Attorney General concedes that the protective order was unauthorized and requests
that this court strike the protective order.
              The protective order is stricken. In all other respects the judgment is
affirmed.




                                                   IKOLA, J.

WE CONCUR:


FYBEL, ACTING P. J.


THOMPSON, J.

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