People v. Gary CA5

California Court of Appeal May 25, 2016 No. F070139Unpublished

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Holding. The court held that the trial court lacked authority to issue post-trial protective orders under Penal Code section 136.2 and failed to impose a sentence on the battery count before staying it.

Issues

Whether the trial court erred in issuing post-trial protective orders under Penal Code section 136.2.
Whether the trial court erred by failing to impose a sentence on the battery count before staying it pursuant to Penal Code section 654.

Disposition. remanded

Quotations verified verbatim against the opinion

“[S]ection 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”

“As the record demonstrates, the trial court failed to impose sentence on count 2 before staying the sentence pursuant to section 654. This failure resulted in an unauthorized absence of sentence.”

Filed 5/25/16 P. v. Gary CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070139 Plaintiff and Respondent, (Fresno Super. Ct. No. F14901480) v.

MATTHEW ALAN GARY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.

Defendant Matthew Alan Gary was convicted by jury trial of attempted second degree robbery (Pen. Code, §§ 664, 211; count 1)1 and misdemeanor battery (§ 242; count 2). The trial court sentenced him to two years in prison for the attempted robbery and stayed punishment on the battery count pursuant to section 654. The court issued protective orders under section 136.2, restricting defendant’s future contact with his two victims. On appeal, defendant contends the trial court’s post-trial protective orders should be stricken. The People concede and further point out that the trial court imposed an unauthorized sentence by failing to sentence defendant on the battery count. We will strike the no-contact protective orders, remand for sentencing on the battery count, and affirm in all other respects. FACTS On February 10, 2014, at 5:25 p.m., Phyllis P. and Arlene L. were walking back to the women’s shelter after eating dinner at the Fresno Rescue Mission. They noticed defendant walking in the opposite direction with a shopping cart. He looked at Arlene and she wished him a good night. After they passed each other, defendant grabbed Arlene’s purse with both hands. They struggled for the purse but Arlene would not let it go. When defendant raised his fist as if to strike Arlene, Phyllis began hitting defendant. He relented, retrieved his shopping cart, and walked away. Arlene and Phyllis called 911 and identified defendant. DISCUSSION I. Unauthorized Sentence At the sentencing hearing, the following occurred:

People v. Gary CA5

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