P. v. Mullany
Filed 8/24/06 P. v. Mullany CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, Plaintiff and Respondent, v. PATRICK TIMOTHY MULLANY, Defendant and Appellant. | C051284
(Super. Ct. No. P04CRF0039)
|
A jury convicted defendant Patrick Timothy Mullany of first degree burglary (Pen. Code, § 459)[1] and found the vulnerable victim enhancement (§ 667.9, subd. (a)) to be true.
The trial court sentenced defendant to state prison for an aggregate term of three years, that is, the low term of two years for the underlying offense plus a consecutive one-year term for the enhancement. The trial court imposed a $600 restitution fine and a $600 parole revocation fine; awarded 37 actual plus five conduct days for a total of 42 days presentence custody credit; found defendant unable to pay the costs of the probation report; ordered defendant to submit samples pursuant to Penal Code section 296; and ordered defendant not to annoy, harass, threaten or have any contact with the victims or their relatives.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We note an error in sentencing. In imposing the state prison sentence, the trial court had no authority to impose an order that defendant not annoy, harass, threaten or have any contact with victims or their relatives (no contact order), as the duration of an order entered under section 136.2 is limited to the pendency of the criminal proceeding. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) We will modify the judgment accordingly. In the interest of judicial economy, we correct this error without first requesting supplemental briefing. Any party wishing to address this issue may petition for rehearing. (Gov. Code, § 68081.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment striking the no contact order and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
DAVIS , J.
We concur:
SCOTLAND , P.J.
HULL , J.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line attorney.
[1] Further undesignated section references are to the Penal Code.