People v. O'Connor CA4/1 ( 2015 )

Filed 10/14/15 P. v. O’Connor CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066736
Plaintiff and Respondent,
v. (Super. Ct. No. SCN330257)
JOSEPH PATRICK O'CONNOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.
Armour, Judge. Affirmed as modified and remanded with directions.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for
Plaintiff and Respondent.
Appellant Joseph Patrick O'Connor pleaded guilty to one count of committing a
lewd act upon a child, his stepdaughter. (Pen. Code1 § 288.5, subd. (a).) In exchange,
the parties stipulated O'Connor would serve a six-year prison term and the People would
dismiss pending charges of lewd act upon the same victim (§ 288, subd. (a)) and one
count of violation of protective order (§ 166, subd. (c)(1)). The parties stipulated the
preliminary hearing transcript provided the factual basis for the plea.
O'Connor's sole contention on appeal is that the court lacked the authority to issue
the protective order. The People concede the point, but argue the court had authority to
issue the protective order as to the biological daughter under section 136.2, subdivision
(i)(1) because she qualifies as a "victim" under section 136's definition, which applies to
"any natural person with respect to whom there is reason to believe that any crime as
defined under the laws of this state or any other state or of the United States is being or
has been perpetrated or attempted to be perpetrated." We will order the protective order
be stricken and remand with directions set forth below.
BACKGROUND
At the preliminary hearing, the victim, M.V., who was 17 years old at the time of
trial, testified that that year she decided to talk to a counselor and later the police about
O'Connor's sexual molestation of her, which started when she was approximately eight or
nine years old. M.V. was worried that O'Connor might be sexually molesting his
1 Statutory references are to the Penal Code.
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biological daughter, who was about eight years old, and had started "acting weird at
home," and "acting a lot more sexually mature than kids her age should be."
The court sentenced O'Connor according to the plea agreement's terms, and issued
a 10-year protective order under section 646.9, subdivision (k), barring him from
contacting both M.V. and his biological daughter.
DISCUSSION
The People concede, and we agree, the court's protective order was not authorized
under section 646.9, subdivision (a) because O'Connor was not convicted under that
statute, which deals with stalking. Rather, his conviction was for committing a lewd act
upon a child under section 288.5, subdivision (a). Accordingly, the protective order must
be stricken.
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DISPOSITION
The judgment is modified to strike the protective order; as so modified, the
judgment is affirmed. The matter is remanded for the trial court to amend the abstract of
judgment reflecting this modification and forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
AARON, J.
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