People v. Febbo CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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 He violated parole, his parole was revoked, and he was released on parole again in November 2013 for a maximum period of March 2014 with terms and conditions.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.