People v. O'Connor CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN330257
- Trial judge
- Carlos O. Armour
- Outcome
- modified — Affirmed as modified and remanded with directions.
- Area
- criminal
- Panel
- O'Rourke (author), McINTYRE, Cynthia Aaron
Analysis
The trial court issued a 10-year protective order barring the defendant from contacting his stepdaughter and biological daughter following a guilty plea to a lewd act upon a child. The appellate court affirmed the judgment as modified, striking the protective order because it was not authorized by the specific statute under which the defendant was convicted.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Issuance of a 10-year protective order under Penal Code section 646.9, subdivision (k), barring contact with the victim and the defendant's biological daughter.“The People concede, and we agree, the court's protective order was not authorized under section 646.9, subdivision (a) because O'Connor was not convicted under that statute, which deals with stalking.” | de novo | error (statutory interpretation) | agree with court agree with court |
The appellate opinion: sound — The court correctly identified that the protective order statute cited (646.9) is specific to stalking convictions. Since the defendant was convicted under a different statute (288.5), the trial court lacked the statutory authority to issue the order under that specific provision. The court's decision to strike the order and remand for correction of the abstract is procedurally sound and legally accurate based on the statutory text.
How this analysis was made · dispute it
unusual dispositionAfter O'Connor pleaded guilty to continuous sexual abuse of a child under Penal Code section 288.5, subdivision (a), the trial court imposed the stipulated six-year term and issued a 10-year protective order under section 646.9, subdivision (k) barring contact with the victim and with his biological daughter. The Court of Appeal accepted the People's concession that section 646.9 applies only to stalking convictions, struck the protective order, affirmed the judgment as modified, and remanded for amendment of the abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Issuance of a 10-year post-conviction protective order under Penal Code section 646.9, subdivision (k) following a conviction under section 288.5, subdivision (a)“the court's protective order was not authorized under section 646.9, subdivision (a) because O'Connor was not convicted under that statute, which deals with stalking.” | unclear | error (statutory interpretation) | agree with court Section 646.9, subdivision (k) authorizes a protective order only upon a conviction for stalking under that section; O'Connor was convicted under section 288.5, so the trial court lacked statutory authority to issue the order under that provision. The People conceded the point and the appellate court's conclusion follows directly from the statute's text. The court did not, however, address the People's alternative argument that section 136.2, subdivision (i)(1) would have authorized an order as to the biological daughter (or the victim), and gave no direction on remand about whether the trial court could consider issuing an order under that provision. |
The appellate opinion: sound with gaps — The result is correct because section 646.9, subdivision (k) is plainly limited to stalking convictions and the People conceded the point, but the opinion cites no authority and does not resolve the People's alternative contention that section 136.2, subdivision (i)(1) authorized a post-conviction order as to the biological daughter. The disposition strikes the order without addressing whether the trial court may consider a new order under section 136.2 on remand, leaving an argument raised by respondent unanswered.
How this analysis was made · dispute it
record incompleteOpinion
Filed 10/14/15 P. v. O’Connor CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066736
Plaintiff and Respondent, v. (Super. Ct. No. SCN330257)
JOSEPH PATRICK O'CONNOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.
Armour, Judge. Affirmed as modified and remanded with directions.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Joseph Patrick O'Connor pleaded guilty to one count of committing a lewd act upon a child, his stepdaughter. (Pen. Code1 § 288.5, subd. (a).) In exchange, the parties stipulated O'Connor would serve a six-year prison term and the People would dismiss pending charges of lewd act upon the same victim (§ 288, subd. (a)) and one count of violation of protective order (§ 166, subd. (c)(1)). The parties stipulated the preliminary hearing transcript provided the factual basis for the plea.
O'Connor's sole contention on appeal is that the court lacked the authority to issue the protective order. The People concede the point, but argue the court had authority to issue the protective order as to the biological daughter under section 136.2, subdivision (i)(1) because she qualifies as a "victim" under section 136's definition, which applies to "any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated." We will order the protective order be stricken and remand with directions set forth below.
BACKGROUND
At the preliminary hearing, the victim, M.V., who was 17 years old at the time of trial, testified that that year she decided to talk to a counselor and later the police about O'Connor's sexual molestation of her, which started when she was approximately eight or nine years old. M.V. was worried that O'Connor might be sexually molesting his 1 Statutory references are to the Penal Code. 2 biological daughter, who was about eight years old, and had started "acting weird at home," and "acting a lot more sexually mature than kids her age should be."
The court sentenced O'Connor according to the plea agreement's terms, and issued a 10-year protective order under section 646.9, subdivision (k), barring him from contacting both M.V. and his biological daughter.
DISCUSSION
The People concede, and we agree, the court's protective order was not authorized under section 646.9, subdivision (a) because O'Connor was not convicted under that statute, which deals with stalking. Rather, his conviction was for committing a lewd act upon a child under section 288.5, subdivision (a). Accordingly, the protective order must be stricken.
3 DISPOSITION
The judgment is modified to strike the protective order; as so modified, the judgment is affirmed. The matter is remanded for the trial court to amend the abstract of judgment reflecting this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
AARON, J.