Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF006835, Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Emily R. Hanks, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
On August 2, 2009, defendant Anthony Preciado got angry with Michael Brown for what he perceived was flirtatious behavior with defendant’s girlfriend. He followed Brown in his car and threw a beer bottle at him that just missed him. Defendant then drove his car at a high rate of speed at Brown, almost hitting him.
Defendant was found guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for almost hitting Brown with his automobile and of the lesser offense of simple assault (§ 240) for throwing the beer bottle. He was sentenced to three years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant now claims as follows:
1. The trial court committed prejudicial error when it excluded evidence of a prior juvenile petty theft arrest to impeach one of the People’s witnesses.
2. The trial court erroneously gave a flight instruction (CALCRIM No. 372) to the jury, which was not supported by the evidence.
3. A booking fee under Government Code section 29550 and a presentence probation report fee under Penal Code section 1203.1b were improperly imposed because the trial court failed to determine defendant’s ability to pay the fees.
4. This court should strike the no-contact order for defendant to not contact Brown, since defendant was sentenced to state prison.
We affirm the judgment but reverse the no-contact order.
I
FACTUAL BACKGROUND
About 5:00 p.m. on August 2, 2009, Michael Brown was at a store when he saw a friend of his, Victoria Winters, with defendant. Victoria was dating defendant. Victoria said hello to him. Brown waved to her but said nothing. Brown left the store without incident.
Victoria was driving with defendant in his car later that night along with Victoria’s friend, Jessica Runnestrand. While they were driving, they saw Brown walking on Beaumont Avenue in Beaumont.
About 9:30 that night, Brown was walking at the corner of Beaumont Avenue and Eighth Street when he saw defendant in a car near the intersection. Defendant yelled to Brown, asking him why he had talked to defendant’s girlfriend. Brown was afraid and started to run. Defendant yelled to him to watch his back. Jessica heard defendant call Brown “the N word” and tell Brown to stay away from Victoria.
While Brown was running, defendant threw a beer bottle at him. It missed hitting him by two to three feet. Defendant drove down the street and made a U-turn. Brown started to cross the street. As he was crossing the street, defendant approached him in the car, revving the engine. Brown estimated that defendant was driving 80 miles per hour. Brown was almost struck by the front bumper of defendant’s car. Brown could feel the heat from the car. Brown ran fast to avoid being hit; he claimed an “angel” saved him.
Victoria testified that the beer bottle missed Brown by five feet. Jessica stated it was six inches.
Jessica stated that defendant raced his car toward Brown. Brown was running away trying to avoid being hit. Jessica believed that defendant got within one inch of Brown. She heard Brown screaming and saw him run and jump to get out of the way. Jessica also estimated that defendant was driving 80 miles per hour.
Defendant drove off, but not before yelling to Brown that he had gotten “lucky this time” and that defendant would get him next time. Brown ran home. Defendant told Jessica and Victoria that Brown was lucky that he had not hit him and that, if defendant found him, he was going to beat him up.
At trial, Victoria claimed that defendant just drove away after he threw the beer bottle. She denied that defendant ever tried to hit Brown with his car.
Brown did not call the police that night because he was afraid. The police were contacted the following day. At some point, defendant called Brown and told him he was lucky. Defendant again told Brown that the next time he saw him, he would get him. Victoria got on the phone and asked Brown to drop the charges against defendant.
Beaumont Police Officer Ryan Brieda was dispatched to the home of Victoria’s mother, Debbie Winters, on August 3, 2009. Brown, Victoria, and Debbie were there when he arrived. Brown told Officer Brieda that, as he was running away, defendant said to him that he got lucky and that next time he was going to run him over. Victoria spoke to Officer Brieda and was crying because she was concerned what defendant would do to her.
Victoria told Officer Brieda that she had said hello to Brown, and that upset defendant. Victoria told Officer Brieda that defendant had thrown a beer bottle at Brown and that it came within inches of him. She also said that defendant tried to hit Brown with his car.
Victoria claimed at trial that the day before she saw Brown in the store, he had called her and threatened her. He had told her that he was going to “smash” her head into the ground. She did not know why he was threatening her.
II
IMPEACHMENT OF PEOPLE’S WITNESS
Defendant contends the trial court erred by excluding evidence that Anthony Alexander, a witness for the People, had a prior juvenile arrest for attempting to steal alcohol.
A. Additional Factual Background
The People filed a trial brief seeking to exclude evidence of Alexander’s prior conduct of attempting to take alcohol from a store, as it did not result in a juvenile adjudication. The People also cited Evidence Code section 352.
At a hearing on the motions in limine, the trial court noted that Alexander had an arrest as a juvenile for some kind of petty theft but had not been convicted. It stated, “... I generally intend to rule that cannot be used for impeachment purposes since there was no conviction.” It assumed that there would be no witnesses who would testify as to the incident, but defense counsel stated she could present a law enforcement officer who could testify as to the statements that were made by Alexander at the time he committed the offense. The trial court responded, “Under the situation that there was no conviction, it was a misdemeanor, and the nature of his involvement in the case herein, I’ll find that that’s not of any value to the jury and order that you can’t use it.”
Defendant objected and argued that it went to Alexander’s credibility. The trial court denied admission of the evidence.
At trial, Alexander testified that defendant came to his house on August 2, 2009, with Alexander’s sister-in-law, Victoria. Defendant and Victoria left the house to get beer. While they were out, Alexander called Victoria on her cellular telephone. She was in the Banning or Beaumont area. While on the phone, Alexander overheard defendant say that he saw Brown. Alexander heard defendant say that Brown had been talking “shit” and that he was going to try to run him over. Alexander then heard Victoria scream and say, “[W]e almost just hit him.” Alexander heard defendant ask if he should throw his beer at Brown and then heard shattered glass.
Defendant and Victoria returned to Alexander’s house with the beer. Defendant joked about trying to hit Brown, showing with his fingers how close he got. He also called Brown a “nigger” and joked that he walked with a limp.
Alexander never told the police or the deputy district attorney prior to trial that he overheard defendant say that he was going to run Brown over or that he joked about his disability and made racial slurs. Victoria and Jessica both testified that Victoria was not on her phone during the incident.
B. Analysis
Evidence Code section 210 defines relevant evidence: “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 780 provides that, “[e]xcept as otherwise provided by statute, the court or jury may consider in determine the credibility of a witness any matter that has any tendency in reason to prove or disprove truthfulness or his testimony at the hearing, including but not limited to...: [¶]... [¶] (i) The existence or nonexistence of any fact testified to by him.” (See also People v. Harrison (2005) 35 Cal.4th 208, 229.) Evidence Code section 1101, subdivision (c), provides, “Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
In People v. Wheeler (1992) 4 Cal.4th 284 (superseded by statute on other grounds in People v. Duran (2002) 97 Cal.App.4th 1448), the court held “that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence under section 28[, subdivision] (d).” (Wheeler, at p. 295.) In detailing the standard of admissibility, the court stated that “[m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction.... [¶] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Id. at pp. 295-296, fn. omitted.) Theft has been found to be conduct amounting to moral turpitude. (See People v. Cudjo (1993) 6 Cal.4th 585, 626.)
Admission of such prior misconduct evidence remains subject to the trial court’s discretion under Evidence Code section 352. (People v. Wheeler, supra, 4 Cal.4th at p. 296.) The trial court has broad discretion to exclude impeachment evidence pursuant to Evidence Code section 352. (People v. Douglas (1990) 50 Cal.3d 468, 509, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code section[]... 352.” (People v. Harrison, supra, 35 Cal.4th at p. 230; see also People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Although the trial court did not engage in an on-the-record analysis of Evidence Code section 352, the People’s brief cited to the section, and we can presume under this record the trial court was aware of its discretion. (See People v. Lucas (1995) 12 Cal.4th 415, 448-449.)
Here, the only evidence before the trial court was that Alexander was arrested in 2005 while he was still a juvenile for stealing alcohol. There was no evidence of an adjudication. Although a conviction was not necessary to admit the prior conduct, this certainly diminished the probative value of the evidence. Moreover, defendant stated a witness would testify about statements made by Alexander at the time of his arrest, not the conduct that amounted to the arrest. There was no showing that these statements constituted moral turpitude, such as lying to the police officer. Finally, the trial court could conclude the impeachment evidence would result in an undue consumption of time based on Alexander’s limited involvement in the case. We cannot say on this record that the trial court abused its discretion by excluding the impeachment evidence.
Moreover, even if the trial court erred, any error in introducing the challenged evidence was clearly harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13.)
Defendant contends that his due process rights were violated and the error here must be evaluated under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. We disagree, as “generally, violations of state evidentiary rules do not rise to the level of federal constitutional error.” (People v. Benavides (2005) 35 Cal.4th 69, 91.) Defendant has not shown that his federal constitutional rights were violated.
Strong evidence supported defendant’s conviction even without Alexander’s testimony. Brown testified that defendant drove at him at a speed of 80 miles per hour and came within one inch of him. Brown testified that it was only by the help of an “angel” that he was he able to escape without injury. Jessica, who was in the car with defendant, confirmed that defendant drove 80 miles per hour toward Brown, narrowly missing him. Brown testified that defendant yelled out that he had gotten lucky and that defendant would get him next time. Jessica also testified that defendant stated that Brown was lucky that defendant did not hit him. Certainly, based on this evidence only, the jury could infer that defendant possessed the intent to assault Brown with his car.
Moreover, “‘[a] trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.’ [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 208.)
Here, Alexander was impeached by his inconsistent statements. Further, during closing argument, defense counsel stated that Alexander was completely incredible given that all of the statements were accredited to defendant for the first time at trial. Additionally, he was impeached by the fact that Victoria and Jessica testified that Victoria was not even on the phone when the incident occurred. Even without evidence that the witness had a prior arrest for petty theft, his credibility was questionable.
Based on the foregoing, we find that any conceivable error committed by the trial court by refusing to allow defendant to impeach Alexander with his prior arrest for petty theft when he was a juvenile was harmless.
III
FLIGHT INSTRUCTION
Defendant complains that the trial court erred by instructing the jury with CALCRIM No. 372, the flight instruction, because there was no evidence presented to support the instruction.
A. Additional Factual Background
Defendant objected to the trial court instructing the jury with CALCRIM No. 372, requested by the People. Defendant argued that “based on the evidence it appears that he was already in the process – it... involves a car. He was already leaving or going past the scene at the time of this incident is alleged to have occurred. [¶] I don’t think that it could be construed as a consciousness of guilt.” The trial court ruled, “That’s up for the jury to decide. It says if you flee and if these things did occur then he left the scene fast apparently, and it’s for the jury to decide if that means anything. So I’ll overrule your objection.”
Accordingly, the jury was instructed, “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt itself.”
B. Analysis
“In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citation.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055; see also People v. Visciotti (1992) 2 Cal.4th 1, 60-61.)
“‘The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]’” (People v. Boyette (2002) 29 Cal.4th 381, 438.)
Admittedly the evidence supporting the flight instruction was minimal. Defendant was driving in a car when he tried to hit Brown and then continued to drive away. Jessica testified defendant did not immediately leave the scene but, rather, continued to look for Brown to beat him up. However, there was some evidence that although defendant wanted to find Brown and beat him up, he left the scene, and it could be reasonably inferred it was due to his consciousness of guilt. The trial court could reasonably conclude that the instruction should be given to the jury.
Additionally, as noted by the People, defendant’s claim that CALCRIM No. 372 violated his due process rights by lessening the prosecution’s burden has been recently rejected in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159. Furthermore, the California Supreme Court rejected a similar claim in People v. Mendoza (2000) 24 Cal.4th 130, 179 to 181 in regard to the similar flight instruction in CALJIC No. 2.52. We reject the contention that the flight instruction lessened the prosecution’s burden in violation of defendant’s due process rights.
Furthermore, even if the trial court erred by giving the flight instruction, any conceivable error was harmless. The applicable standard is whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Silva (1988) 45 Cal.3d 604, 628.) “The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted.) Accordingly, if in fact there was insufficient evidence of flight, we can assume that the jury made no use of the instruction. (See People v. Barnett (1998) 17 Cal.4th 1044, 1152-1153.)
Moreover, as set forth above, there was ample evidence presented of defendant’s guilt even without evidence of his flight from the scene. Any conceivable error was therefore harmless, as it is not reasonably probable that a more favorable result to defendant would have been reached had the instruction not been given.
IV
BOOKING AND PRESENTENCE PROBATION REPORT FEES
Defendant contends that the trial court erred by imposing a booking fee under Government Code section 29550 and a probation report fee under Penal Code section 1203.1b without first determining his ability to pay.
A. Probation Report Fee Pursuant to Penal Code Section 1203.1b
Defendant first contends that the trial court erred by imposing a presentence probation report fee under section 1203.1b. The People contend that defendant has waived the issue by failing to object to the fee in the lower court. Defendant responds that he has not waived the issue as he is raising an insufficiency of the evidence claim that can be raised at any time. We need not address the waiver issue as the record does not support that the fee was ever imposed.
“In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, ... the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence.... The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof.” (§ 1203.1b, subd. (a).)
At the time of sentencing, the trial court stated that defendant was to “pay the cost of any pre-sentence probation report pursuant to 1203.1 as indicated, all the recommendations indicated by the probation officer.” The probation report recommended that defendant pay the costs of the presentence probation report pursuant to Penal Code section 1203.1b in an amount and manner to be determined by the Enhanced Collections Division and was not to exceed $318. The fee does not appear on the abstract of judgment.
Here, the trial court did not actually impose the fee for the probation report. Rather, the probation report indicates that the amount would be determined by the “Enhanced Collections Division, ” and there is nothing in the record before us that the fee has been imposed. Section 1203.1b, subdivision (f) provides, “At any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the probation officer of a review of the defendant’s financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant’s ability to pay the judgment.”
Accordingly, pursuant to section 1203.1b, subdivision (f), defendant should file a petition with the trial court at the time the Enhanced Collections Division actually sets the amount of the fee, assuming it ever does. The fee does not appear on the abstract of judgment. Defendant has provided nothing to this court that shows that the fee was ever imposed, and it may never be imposed. Hence, review of the issue is unnecessary at this time.
B. Booking Fee
Defendant contends the booking fee imposed under Government Code section 29550 must be stricken because the trial court did not make an assessment of his ability to pay the fees as required by the statute.
Defendant was arrested by a Beaumont city police officer who was accompanied by a Riverside County sheriff’s deputy. He was booked into the Riverside County Jail. In the probation report, it was recommended that defendant pay a total of $409.43 “to the Courts as directed by the Enhanced Collections Division for booking fee pursuant to Section 29550 of the Government Code....” At the time of sentencing, the trial court ordered, “Pay a total of $409 and $43 [sic], costs per 29550.” There was no objection by defendant.
On the abstract of judgment, the amount of the booking fee is stated as $409.43. Neither the probation report nor the trial court’s order specified under what subdivision of Government Code section 29550 the booking fee was imposed.
When the trial court imposed the $409.43 booking fee under Government Code section 29550, there was no objection by defendant. The People maintain that defendant waived any objection to the booking fee by failing to object in the lower court because the resulting sentence is not an unauthorized sentence, citing to People v. Valtakis (2003)105 Cal.App.4th 1066, 1071-1072 and People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469. Defendant responds that he can raise the issue on appeal for the first time, as the determination of booking fees presents an insufficient-evidence claim that cannot be waived, citing to People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218.
We note that there is conflicting authority on the issue of whether the failure to object to an imposed fee based on the trial court’s failure to make a determination of an ability to pay waives the issue on appeal. On one hand, courts have found, “[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.]” (People v. Gibson, supra, 27 Cal.App.4th at pp. 1468-1469; see also People v. Hodges (1999) 70 Cal.App.4th 1348, 1357.)
However, other courts have found that a challenge to a defendant’s ability to pay attorney fee reimbursement need not be raised below because it is essentially a challenge to the sufficiency of the evidence supporting the trial court’s order. (People v. Viray, supra, 134 Cal.App.4th at pp. 1217-1218; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) Recently, in People v. Pacheco (2010)187 Cal.App.4th 1392, the court considered whether the imposition of a booking fee, probation supervision fee, and other fees are waived without an objection in the trial court. It concluded, “[T]hese claims are based on the insufficiency of the evidence to support the order or judgment. We have already held that such claims do not require assertion in the court below to be persevered on appeal. [Citations.] Respondent offers nothing to convince us otherwise.” (Id. at p. 1397.)
The People have provided no argument to distinguish Pacheco or Viray, despite the fact that the defendant cited these cases in his opening brief. We will not make the argument for the People. We will therefore review defendant’s claim.
At oral argument, the People cited to a recently published case of People v. McCullough (2011) 193 Cal.App.4th 864 [review filed April 25, 2011]. However, McCullough holds the same as Valtakis and Gibson, and the People do not provide further argument distinguishing Pacheco or Viray.
The People contend that the fee here was imposed pursuant to Government Code section 29550, subdivisions (c) and (d)(1), which is not dependent upon a defendant’s ability to pay. Defendant has conceded that the fee was imposed under Government Code section 29550, subdivision (c), because a “County Sheriff’s officer” helped in the arrest. Defendant does not address the People’s argument that the fee is mandatory in his reply brief.
“Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing arrested persons into a county jail. To some degree, they vary based on the identity of the arresting agency. Arrests made by a ‘city, special district, school district, community college district, college, university or other local arresting agency’ are governed by Government Code sections 29550, subdivision (a)(1) and 29550.1. Arrests made by a county are governed by Government Code section 29550, subdivision (c) and those made by ‘any governmental entity not specified in Section 29550 or 29550.1’ are governed by Government Code section 29550.2, subdivision (a).” (People v. Pacheco, supra, 187 Cal.App.4th at p. 1399, fn. 6.)
In Pacheco, where the defendant received a probationary sentence, the court determined that under Government Code section 29550, subdivisions (c) and (d)(2) the fee was dependent upon the defendant’s ability to pay. (People v. Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400 [“[s]ubdivision (d)(2) further provides that ‘the court shall, as a condition of probation, order the convicted person based on his or her ability to pay, ’ to reimburse the county for the fee”].) However, in other sections, such as Government Code section 29550.1, which refers to when a city arrests a person and the fee is made payable to the city, the payment is not dependent on the defendant’s ability to pay and is a mandatory fee regardless of the ability to pay.
As set forth, ante, the probation report and trial court at sentencing did not specify under which subdivision of Government Code section 29550 the booking was imposed; however, defendant concedes it was under subdivision (c). The plain language of subdivision (c), like that in Government Code section 29550.1, provides that no such ability to pay is required when the defendant is sentenced to state prison. Section 29550, subdivision (c) provides, “Any county whose officer or agent arrests a person is entitled to recover from the arrested person a criminal justice administration fee for administrative costs it incurs in conjunction with the arrest if the person is convicted of any criminal offense related to the arrest.... The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, including applicable overhead costs incurred in booking or otherwise processing arrested persons.” Subdivision (d)(1) provides, “A judgment of conviction may impose an order for payment of the amount of the criminal justice administrative fee by the convicted person, and execution may be issued on the order in the same manner as a judgment in a civil action, but shall not be enforceable by contempt.”
In view of the plain language of the statute, under Government Code section 29550, subdivisions (c) and (d)(1), the trial court did not have to determine defendant’s ability to pay prior to imposing the fee. It is inexplicable why the Legislature chose to impose a mandatory fee under Government Code section 29550 when a defendant is sentenced to prison but have the trial court consider the ability to pay when probation is granted (Gov. Code, § 29550, subd. (d)(2)). However, it is not for this court to rewrite the statute or to interpret the statute other than to give meaning to its actual words. As such, imposition of the fee is mandatory under section 29550, subdivisions (c) and (d)(1), and the court did not err in imposing it.
V
NO-CONTACT ORDER
Defendant contends that the no-contact order with Brown should be stricken because he was sentenced to state prison, and no statute authorizes the imposition of such an order when a defendant is sentenced to state prison. Respondent concedes the error.
At sentencing, the trial court stated that defendant was to “have no direct contact with... Michael Brown.... ” On the minute order for sentencing from that date, March 2, 2010, it stated, “COURT FURTHER ORDERS THAT DEFENDANT IS TO HAVE NO DIRECT OR INDIRECT CONTACT WITH MICHAEL B.” The no-contact order does not appear on the abstract of judgment. At no time did the trial court state under what authority it was imposing the protective order.
The trial court may issue criminal protective orders pursuant to section 136.2, domestic violence protective orders pursuant to section 1203.097, and protective orders as a condition of probation. The latter two situations are inapplicable here, and section 136.2, which provides for a limited protective order during the pendency of criminal proceedings, does not authorize the issuance of a protective order against a defendant who has been sentenced to prison. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) Additionally, although the trial court has an inherent authority to issue appropriate protective orders to protect trial participants, it is not authorized to issue a protective order against a defendant who has been sentenced to prison. (Id. at p. 384.) Accordingly, we agree with the parties that the court’s no-contact order here was unauthorized.
VI
DISPOSITION
We reverse the trial court’s no-contact order and direct the clerk of the Riverside County Superior Court to modify the minute order dated March 2, 2010, to strike that order. We otherwise affirm the judgment.
We concur: RAMIREZ, P.J., CODRINGTON, J.