Filed 4/3/18 P. v. Tabbutt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

BRICE TABBUTT,

Defendant and Appellant.
D072115



(Super. Ct. No. SCD258645)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Protective order reversed; judgment otherwise affirmed.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Brice Tabbutt robbed a 73-year-old man of his car. He was initially placed on formal probation. After failing to abide by the terms and conditions of probation, Tabbutt was eventually sentenced to a term of four years in prison. Upon sentencing Tabbutt to prison, the trial court issued a stay-away and no-negative-contact order to prohibit Tabbutt from going near his mother's mobile home park and from engaging in negative contact with his mother, sister, and niece after his release from prison.
Tabbutt contends that the trial court did not have the authority to issue the protective order. The People concede that Tabbutt is correct and request that this court strike the order. We accept the concession.
II.
BACKGROUND
In September 2014, Tabbutt was yelling obscenities while pacing back and forth in the parking lot of a business. Victim K.T., who was 73 years old at the time, arrived for work and parked his car in the lot. As K.T. got out of his car, he noticed Tabbutt behaving strangely and thought that Tabbutt had mental issues. K.T. decided to ignore Tabbutt. Tabbutt saw K.T. and said, " 'I am going to kill you.' " Tabbutt started walking toward K.T. K.T. continued to try to ignore Tabbutt and began walking up a staircase to go to his office. Tabbutt followed K.T. up the stairs, continuing to threaten him. Tabbutt tried to hit K.T., but K.T. managed to avoid the blow. Tabbutt grabbed K.T.'s car keys, which K.T. had been holding in his hand. Tabbutt ran to K.T.'s car and drove away in it. K.T. called the police and Tabbutt was apprehended by police soon after K.T. reported the incident.
Tabbutt pled guilty to one count of robbery (Pen. Code, § 211), and admitted that his victim was over the age of 65 years (§ 667.9, subd. (a)).
The court placed Tabbutt on three years of formal probation. Tabbutt failed to comply with the terms and conditions of his probation. He admitted violating his probation and the court revoked probation. The court released Tabbutt to a treatment facility to determine whether he would be amenable to terms and conditions of probation.
While at the treatment facility, Tabbutt violated another probation condition and admitted the violation. The trial court revoked probation and sentenced Tabbutt to four years in state prison. In imposing sentence, at the request of the prosecutor, the trial court issued a protective order, set to expire on March 15, 2024, prohibiting Tabbutt from going near his mother's mobile home park and from engaging in any negative contact with his mother, sister, and niece.
Tabbutt filed a timely notice of appeal.
III.
DISCUSSION
At sentencing, the prosecutor requested that the court issue a protective order pursuant to section 136.2. The prosecutor requested a "no negative contact" order that would prohibit Tabbutt from going near the mobile home park where his mother lived, and from having negative contact with his mother, sister, and niece. The court issued the protective order under section 136.2. The order is set to expire in 2024.
Tabbutt contends that although section 136.2 provides a trial court with authority to issue a protective order in multiple circumstances, none of those circumstances exist in this case. He requests that the protective order be stricken.
The People concede that there is no lawful basis for the trial court's issuance of the protective order entered in this case, and also request that the protective order be stricken. We accept the People's concession, and agree that there appears to be no factual basis to support the protective order issued here. We therefore strike the trial court's protective order, set to expire March 15, 2024.
IV.
DISPOSITION
The protective order prohibiting Tabbutt from going near his mother's mobile home park and from having negative contact with his mother, sister, and niece is stricken. In all other respects the judgment of the trial court is affirmed.


AARON, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.