Filed 2/2/15 P. v. Perez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B252985

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA413142)
         v.

CAMILO PEREZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis
J. Landin, Judge. Sentence vacated and remanded with instructions; affirmed in all other
respects.
         Paul J. Katz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys General, for
Plaintiff and Respondent.
                                      ____________________________
      Camilo Perez appeals from a sentence imposed after he was convicted of assault
with a deadly weapon. He contends a parole revocation fine was improper where
imposition of sentence was suspended, thus creating no possibility of parole, and a pre-
verdict protective order was improperly made a probation condition. We agree with both
contentions and thus vacate the judgment and remand for resentencing.
                                      BACKGROUND
      On July 1, 2013, Perez threatened Jose Farias and his daughter, Stephanie
Espinoza, with a knife, threatening to kill them. When arrested, he told police “they”
would not let him see his daughter. He was convicted by a jury on two counts of assault
with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1
      At sentencing, the trial court suspended imposition of sentence and placed Perez
on formal probation for five years. As a condition of probation, Perez was ordered to
serve 364 days in county jail and pay, among several other fees, both a parole revocation
fine in the amount of $280 (§ 1202.45) and a probation revocation fine of $280 (§
1202.44). In addition, as a condition of probation Perez was ordered to stay away from
Farias and Espinoza and their residence, and advised that failure to do so may be
“charged [as] a completely separate crime” and “may be punished as a felony, a
misdemeanor, or contempt of court.”
      Perez timely appealed.
                                       DISCUSSION
      Parole Revocation Fine
      Perez contends the parole revocation fine was improper because suspension of the
imposition of sentence created a situation where he was not sentenced to any prison term,
and thus could not be granted parole. Respondent concedes the point, and we agree.
(People v. Tye (2000) 83 Cal.App.4th 1398, 1401 [suspension of imposition of sentence
creates a situation where the defendant has not been sentenced to a prison term, making a
parole revocation fine improper].)


      1
          All statutory references will be to the Penal Code.

                                              2
       Protective Order as a Probation Condition
       Perez contends the court issued a witness protective order, which is generally
applicable only during the pendency of trial to protect against witness dissuasion (§
136.2), as a probation condition, which is unauthorized. We agree.
       At sentencing, the trial court, speaking to Perez, stated, “I mentioned before, I
signed a protective order, Mr. Perez. This prevents you, from among other things, having
contact with Jose Farias and Stephanie Espinoza. You’re not to come within 100 yards of
either of those persons or have any contact with them directly or through a third party.
[¶] You are to have no personal, electronic, telephonic or written contact with them as
well. There are other conditions on this document. Make sure it’s read to you in the
language you understand because if you violate any portion of it, you can be charged with
a completely separate crime.” The court stated, “that’s a condition of probation.”
       The condition was reflected in the written probation order, where it was
denominated as follows: “PROBATION CONDITION ORDER (Pen. Code, § 136.2).”
The written order stated that “[v]iolation of this protective order may be punished as a
felony, a misdemeanor, or contempt of court.” This was improper, as violation of a
probation condition is not punishable as a separate offense. (People v. Selga (2008) 162
Cal.App.4th 113, 120.)
       Respondent argues the stay-away condition should remain because the trial court
could have imposed it using its broad discretion under section 1203.1. We agree the trial
court could have imposed the condition under that section, but it could not also advise
that violation of the condition could be punishable as a separate offense. To afford the
court an opportunity to impose the condition without that advisement, we will remand the
matter for resentencing, with the understanding that the stay-away condition remain in
effect pending resentencing.




                                             3
                                     DISPOSITION
       The sentence is vacated and the matter is remanded for resentencing. The
judgment is affirmed in all other respects.
       NOT TO BE PUBLISHED.




                                                  CHANEY, Acting P. J.


We concur:



              JOHNSON, J.



              BENDIX, J.*




       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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