Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County Nos. INF058867, INF059655, INF060015 & INF062555, David B. Downing, Judge.
McCONNELL, P. J.
David Richard Lindquist entered a negotiated guilty plea to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)) and five counts of committing a lewd act on a child under 14 years old (§ 288, subd. (a)). The court sentenced him to a stipulated 20-year prison term: the eight-year upper term on one of the lewd act counts, two years (one-third the middle term) for each remaining lewd act count, one year for inflicting corporal injury (one-third the middle term) and three years for personal infliction of great bodily injury. Lindquist appeals, contending the court erred in concluding it was required to calculate the restitution fine at $200 per count and in issuing a criminal protective order. The People properly concede both points.
All further statutory references are to the Penal Code unless otherwise indicated.
After imposing restitution fines (§ 1202.4, subd. (b)) and parole revocation fines (§ 1202.45) of $200 per count, the court stated, "That's mandatory. There's nothing I can do about it." Section 1202.4, subdivision (b) states: "[T]he court shall impose a... restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." The amount of the fine is in the discretion of the court, within a range of $200 to $10,000 per count. (§ 1202.4, subds. (b) & (d); People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380.) The parole revocation fine must be in the same amount as the restitution fine. (§ 1202.45.) We remand so that the court may exercise its discretion in setting the amount of the restitution fine and the correlative parole revocation fine.
The court issued a criminal protective order (§ 136.2) prohibiting Lindquist from contacting the child victims, his 14- and 15-year-old daughters, until they were 18 years old. The authority of section 136.2 exists only during the pendency of a criminal case. (People v. Ponce (2009) 173 Cal.App.4th 378.) The minute order incorrectly states the protective order was granted pursuant to section 646.9, subdivision (k). That section is inapplicable here because Lindquist was not convicted of stalking (§ 646.9). Finally, there was no showing a restraining order was appropriate under the court's inherent authority (Ponce, at pp. 383-385) or under Code of Civil Procedure section 527.6.
DISPOSITION
The restraining order is reversed. The restitution fines (§ 1202.4, subd. (b)) of $200 per count, for a total of $1,200, are reversed, as are the parole revocation fines (§ 1202.45) in like amounts. In all other respects the judgment is affirmed. The case is remanded to the trial court with directions to hold a new hearing at which the court shall exercise its discretion in setting the amount of the restitution and parole revocation fines.
WE CONCUR: NARES, J. HALLER, J.