Filed 10/22/15 P. v. Leary CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143726
v.
DYLAN ROBERT LEARY,                                                  (Napa County
                                                                     Super. Ct. No. CR170915)
         Defendant and Appellant.


         Defendant Dylan Robert Leary was sentenced to serve four years four months in
state prison after pleading no contest to arson and burglary charges. His sole claim on
appeal is that an order directing him to stay away from the victims and their property
constitutes an unauthorized sentence and must be reversed. We shall strike the
challenged order but otherwise affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         In May 2014, Cal Fire personnel responded to a fire early in the morning at a
vacation property in Napa owned by Matthew and Karla Davis.1 The main residence on
the property was destroyed in the fire. An arson investigator believed the fire was
deliberately set. Mr. Davis reported that various items had been taken from the property,
including two televisions sets, a mountain bike, and tools belonging to a contractor.
After the fire had been extinguished, Mrs. Davis called 911 in the afternoon to report

         1
       Because the conviction resulted from a plea, the factual background is derived
from the probation report.


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three suspicious persons on the property. One of the suspicious persons was defendant,
who was holding a sword when he came out from behind a guest house on the property.
Defendant and the other two individuals left in a vehicle after being confronted. Mrs.
Davis reported the vehicle’s license plate to the police dispatcher. A sheriff’s deputy
contacted the vehicle’s owner, who claimed he had gone to the Davis property after
defendant called him and asked for a ride home. The day after the fire, detectives
conducted a probation search of defendant’s home, where they found various items that
matched the description of property taken from the Davis’s vacation home.
       In an interview with the detectives, defendant admitted that he had burglarized the
Davis property with two other individuals, Joseph Dewitt and Jessica Jaeger. Defendant
stated that he had gone to the Davis property on three separate occasions, including one
time after the fire. According to defendant, he returned to the property after the burglary
because he read that the house had burned to the ground and wanted to see it. He claimed
he had nothing to do with the fire. Jaeger reported that she heard an alarm sounding as
the burglars left the Davis property. Dewitt told her he lit a hallway closet on fire as they
were leaving in order to get rid of any fingerprints.
       The Napa County District Attorney filed a five-count criminal complaint charging
defendant with arson of an inhabited structure (Pen. Code,2 § 451, subd. (b)), three counts
of first degree residential burglary (§ 459), and conspiracy to commit arson and burglary
(§ 182, subd. (a)(1)). Defendant pleaded no contest to the arson count and to one of the
burglary counts. In exchange for the plea, the prosecutor agreed to dismiss the remaining
charges. Pursuant to the plea, the court sentenced defendant to serve four years four
months in state prison, composed of the low term of three years for arson plus a
consecutive term of one year four months, representing one-third of the four-year middle
term for burglary.
       At the sentencing hearing, Mrs. Davis spoke about her fear after the arson and
burglary of her home and the need to take measures to make sure defendant and his


       2
           All further statutory references are to the Penal Code.


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companions would not break into her house again. Mr. Davis spoke of the implicit threat
posed by defendant’s act of bringing a Samurai sword onto their vacation property. A
neighbor of Mr. and Mrs. Davis urged the court to restrict defendant and his confederates
from coming near the area where the burglary and arson occurred. As part of defendant’s
sentence, and presumably in response to the concerns voiced at the sentencing hearing,
the court issued a no-contact order directing defendant to stay away from the victims and
at least 100 yards away from the Davis property. The abstract of judgment provides:
“The Defendant shall have no contact with the victims, directly or indirectly and stay
100 yards away from their property.” Neither the oral record of the sentencing hearing
nor the court’s minutes provides any statutory basis for the no-contact order.
                                        DISCUSSION
       Defendant’s sole claim of error on appeal is that the no-contact order is an
unauthorized sentence and must be reversed. The People concede that the order is
unauthorized and must be stricken. The concession is well taken.
       At the outset, we note that this issue is cognizable despite defendant’s failure to
object to the no-contact order during the sentencing hearing. 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).)
       In People v. Robertson (2012) 208 Cal.App.4th 965, 995–996 (Robertson), the
court held that a no-contact order imposed on a defendant who was sentenced to prison
was unauthorized under the circumstances presented in that case. The Court of Appeal
gave examples of permissible protective orders in criminal cases: “For example, section
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. [Citation.] Section 1203.1, subdivision (i)(2), which
authorizes a no-contact order in some sex offense cases, only applies where the defendant
is granted probation. Section 1201.3, subdivision (a) authorizes a no-contact order for a
period of up to 10 years but only when the defendant was convicted of a sexual offense


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involving a minor victim.” (Id. at p. 996.) The court concluded that the no-contact order
was not authorized under any of the several statutes that permit entry of protective orders
in a criminal case. It also stated it was “not aware of any statute that would provide a
basis for the trial court to issue a no-contact order in this case during sentencing, much
less one of unlimited duration.” (Ibid.)
       Even though a court may have inherent power to act in the absence of specific
authorizing legislation, this authority does not allow a court to issue protective “orders
against defendants by fiat or without any valid showing to justify the need for the order.”
(Ponce, supra, 173 Cal.App.4th at p. 384.) Further, “[w]here 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.” (Ibid.) In
Robertson, supra, 208 Cal.App.4th at page 996, the Court of Appeal concluded that the
trial court’s inherent powers did not justify a protective order preventing the defendant
from having contact with the victim after the defendant was sentenced to prison and there
was no evidence the defendant had threatened a witness. Likewise, in Ponce, supra,
173 Cal.App.4th at page 385, the court did not have authority to issue a no-contact order
in the absence of evidence that the defendant had actually harassed or contacted the
victim during his period of incarceration. “[A] prosecutor’s wish to have such an order,
without more, is not an adequate showing sufficient to justify the trial court’s action.”
(Id. at pp. 384–385.)
       Here, the court denied probation and sentenced defendant to prison. There was no
statutory authority to issue the no-contact order. Further, although the victims and their
neighbors understandably did not want to have any further contact with defendant or his
companions, there was no evidence to suggest defendant would pose an ongoing threat to
either the victims or their neighborhood after he is ultimately released from prison. Even
though a court may have inherent authority to issue restraining orders when warranted by
the circumstances, there was no support in the case for a protective order of unlimited
duration. Accordingly, we agree with the parties that the no-contact order must be
stricken.


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                                       DISPOSITION
       The order directing defendant to have no contact with the victims and to stay away
from their property is stricken. The trial court is directed to prepare an amended abstract
of judgment in accordance with this disposition and deliver it to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




A143726


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