Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F01767, 06F01988
NICHOLSON, Acting P.J.
Defendant stole a Bluetooth headset from a Verizon Wireless store and was convicted by a jury of petty theft with a prior. (Pen. Code, § 666.) The court found true the allegation that defendant had served a prior prison term. The sole issue on appeal concerns defendant’s sentencing in case No. 06F01988 for the theft offense.
His conviction for petty theft occurred in case No. 06F01988.
Further undesignated statutory references are to the Penal Code unless otherwise specified.
Pursuant to a plea agreement, defendant was sentenced during the same proceeding, in case No. 05F01767, to the midterm of two years for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), which the court selected as the principal term.
After sentencing defendant to prison, the prosecutor requested a no contact order preventing defendant from contacting the Verizon store employee who served defendant at the store and was the chief prosecution witness against him at trial.
Although the court responded, “I wouldn’t have any jurisdiction over it once he’s delivered to corrections[,]” it nonetheless issued the requested order over defendant’s objection, noting that the female employee “has some concern about her safety having testified against [defendant]. So I’m going to go ahead and impose that order that there not be any contact with her.”
On appeal, defendant contends the court had no jurisdiction to make the no contact order; the People concede the error.
We agree. Several Penal Code sections mandate or allow no contact orders at the time of sentencing in certain circumstances. For example, section 1202.05, subdivision (a) requires the court to prohibit all visitation between a defendant convicted of committing various sex offenses and the minor victim. In addition, a trial court may issue a no contact order valid for up to 10 years in stalking cases (§ 646.9, subd. (k)); a trial court may impose a no contact order as a condition of probation (§ 1203.1, subd. (i)(2)); and, at the request of the victim, the parole authority must impose a form of no contact order as a condition of parole (§ 3053.2, subd. (a)). These statutory provisions mandating or authorizing a no contact order do not apply in this case.
The only Penal Code section that could reasonably justify the no contact order is section 136.2, which allows a court broad authority to issue no contact orders in criminal cases “upon a good cause belief that harm to or intimidation or dissuasion of a victim has occurred or is reasonably likely to occur . . . .” (§ 136.2, subd. (a)(4).) However, the issuing court must have jurisdiction over the pending matter. (§ 136.2, subd. (a).)
Based on the statutory jurisdiction requirement, People v. Stone (2004) 123 Cal.App.4th 153 (Stone) held that section 136.2’s application is limited to the pendency of a criminal proceeding because section 136.2 “is aimed at protecting only ‘victim[s] or witness[es].’” (Stone, supra, at p. 159.) Section 136.2’s purpose of protecting victims and witnesses is “an indication of [section 136.2’s] limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them.” (Stone, supra, at p. 159.) The good cause requirement in section 136.2 requires a threat, or likely threat, in connection with the criminal proceedings or participation in them. (Stone, supra, at p. 160.)
Here, not only does the record fail to suggest a threat or likely threat, in connection with the Verizon employee’s participation at trial, but defendant was sentenced to state prison; the trial court lacks jurisdiction to make an order concerning his postsentencing conduct. Orders made under section 136.2 are limited in time to the pendency of the criminal proceeding. (Stone, supra, 123 Cal.App.4th at p. 159.)
DISPOSITION
The superior court is directed to amend the abstract of judgment to strike the no contact order. The superior court is further directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.