Filed 3/20/14 P. v. Reid CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. GARNETT JUNIOR REID, Defendant and Appellant. G049219 (Super. Ct. No. SWF029045)

O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, Dennis A. McConaghy, Judge. Affirmed, as modified. Steven S. Lubliner, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, Peter Quon, Jr., and Theodore M. Cropley, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

* * *2 A jury convicted defendant Garnett Juni or Reid of felony elder abuse (Pen. Code, § 368, subd. (b)(1); all further undesign ated statutory references are to this code; count 1), attempted robbery (§§ 211, 664; co unt 2), “grand theft pe rson” (§ 487, subd. (c); count 3), felony evasion (Veh. Code , § 2800.2; count 4), and felony child endangerment (§ 273a, subd. (a); count 5). It also found true that in committing counts 1 and 2 defendant personally inflic ted great bodily injury on the victim. (§§ 12022.7, subd. (c), 1192.7, subd. (c)(8).) Alt hough the jury acquitted defe ndant of assault on a police officer by means of force likely to produce gr eat bodily injury and a ssault with a deadly weapon (counts 6 and 7), it fo und him guilty of the lesser included offense of simple assault. After finding true defendant had se rved two prior prison terms (§ 667.5, subd. (b)), the court sentenced defendan t for 13 years, 8 months.
Defendant contends substantial eviden ce does not support the great bodily injury enhancements and his convictions for elder abuse a nd grand theft. If the great bodily enhancements are reve rsed, he claims he is entitle d to additional presentence

conduct credits and a remand for the court to c onsider placing him on probation. He also argues the court erred by not su a sponte instructing the jury on misdemeanor elder abuse or alternatively that his counsel was ineffe ctive for failing to request it. Further, he asserts section 654 bars separa te sentences on counts 4 and 5, and counts 3 and 4. We agree section 654 precludes multiple sentences on counts 4 and 5 a nd order the sentence on count 4 stayed. We also ag ree with defendant’s final cont ention that the court’s oral
order that defendant to “have no contact with any of the witnesses or the victims” was unauthorized and strike the order of protection. As modified, the ju dgment is affirmed.

FACTS

In August 2009, 85-year-old Mildred Hare pa rked her car in a Stater Brother’s parking lot. As she walked toward the store, defendant, who was taller than3 Hare and in his mid-20’s, ra n up and grabbed her purse. During thei r “tug-a-war” over the purse, both “pull[ed] so hard ” that the straps on defendan t’s side broke. Because of “how hard [they] were struggling,” Hare fe ll backwards onto the hard asphalt with great momentum, hitting her head, fracturing her pelv is, and injuring her arms and legs. She was bed-ridden for six to eight weeks, conf ined to a wheelchair for the next two and a half months, and had to use a walker for three more months. Later that morning, Jenna Hickok pa rked her car in th e parking lot of a Target store located a short distance from the Stater Brothers where defendant had attempted to take Hare’s purse. Hickok got out of her car and placed her baby’s diaper bag, containing her purse, keys, and other items, into the main compartment of a shopping cart. She had just tu rned the cart and was either in the process of buckling her baby into the cart or right after she had done so when defendant came over, grabbed the diaper bag and ran off. Hi ckok’s hands were not on the cart at the time. Defendant jumped into a car being driven by his wife. At a nearby Chevron station, they exchange d places. With police followi ng and his four-year-old son in the back seat, defendant dr ove erratically on city streets and freeways. At one point, he drove directly at several law enforcement vehicles before police disabled his car.

DISCUSSION

1. Sufficiency of the Evidence “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid valu e such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears “tha t upon no hypothesis whatever is there4 sufficient substantial ev idence to support [the conviction].”’” ( People v. Wilson (2010) 186 Cal.App.4th 789, 805.)

a. Great Bodily In jury Enhancements Under section 12022.7, subdivision (c), “[a]ny person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an
additional and consecutive term of imprisonment in the stat e prison for five years.”

Defendant admits Hare sustaine d great bodily injuries but contends insufficient evidence supports his convictions under that statute because he “did not personally inflict them” in that he “did not hit her, push her down, drag her down or knock her down,” or “cut the strap or let go of the purse knowing that she would fall.” We are not persuaded. Defendant relies primarily on People v. Jackson (2000) 77 Cal.App.4th 574 ( Jackson ), which held that when “the victim’s injury does not result from direct physical contact by the defendant, . . . se ction 273.5 is not violated.” ( Id . at p. 575; see also People v. Rodriguez (1999) 69 Cal.App.4th 3 41, 347 [“To ‘personally inflict’ an injury is to directly cause an in jury, not just to proxim ately cause it”].) In Jackson , the defendant pushed his girlfriend against a car parked on the street. The girlfriend’s testimony established her traumatic injuries occurred when she tripped and fell over a curb while attempting to flee from the defendant. ( Jackson , at p. 576.) On appeal, the defendant claimed the evidence was not sufficient to pr ove he violated section 273.5 “because the victim’s injuries resulted from her own movements.” ( Jackson, at p. 576.) After examining the language and legisl ative history of section 273.5, Jackson held the evidence failed to prove the defe ndant “‘inflicted corporal in jury on his girlfriend within the meaning of . . . section 273.5” because that statute “is not violated unless the corporal injury results from a direct application of force on the victim by the defendant .” ( Jackson , at p. 580, italics added.) Significan tly, however, it explained that “[i]f the5 victim fell as a direct result of the blows inflicted by [ the defendant ], we would conclude [he] inflicted the corp oral injury she suffered in the fall.” ( Ibid ., italics added.) In this case, substantia l evidence establishes that Hare’s injuries resulted

from defendant’s “direct a pplication of force” ( Jackson , supra , 77 Cal.App.4th at p. 580), specifically the fact he was “pulling so hard” that the purse strap on his side of the “tug-awar” broke, causing Hare to fall back with great momentum. Moreover, Jackson did not involve the interpreta tion of section 12022.7 but rather “section 273.5, which includes a specif ic definition of injury that requires the use of physical force” ( People v. Warwick (2010) 182 Cal.App.4th 788, 794 ( Warwick ) [citing former § 273.5, subd (c), now § 273.5, subd. (d)].) In Warwick , this court disagreed with the defendant that she did not personally inflict great bodily injury on her child under section 12022.7, subdivision (d) because she passively failed to act and did not apply force. ( Warwick , at pp. 793-795.) We relied on People v. Cross (2008) 45 Cal.4th 58, which, in interp reting section 12022.7, subdivi sion (a), an enhancement with nearly identical language to subdivisions (c) and (d), “held that nonforcible but unlawful sexual conduct with a minor supports a finding of great bodily injury, and specifically rejected the view advanced he re: ‘To the extent defendant argues that great bodily injury invariably requires the applicati on of physical force to the vi ctim in order to cause great bodily injury, we reject that view. “A plain reading of . . . section 12022.7 indicates the Legislature intended it to be applied broadly” [citation], and theref ore the statute itself sets out the only criminal offenses — mu rder, manslaughter, arson, and unlawfully causing a fire, each of which incorporates enha nced sentencing for such injury — that are not subject to a finding of great bodily injury [citation].’ [Citation. ] Further, the court noted: ‘[T]he meaning of the statut ory requirement that the defendant personally inflict the injury does not differ fro m its nonlegal meaning. Co mmonly understood, the phrase “personally inflicts” means that someone “in person” [citation], that is, directly and not6 through an intermediary, “cause[ s] something (damaging or pa inful) to be endured.”’” ( Warwick , at p. 794.) Applying this definition, we re jected the defendant’s claim that “‘affirmative action’ is required” and held that, in any event, her actions were affirmative in that they “were direct and ineffectual — defendant’s actions after her child’s birth directly caused his injuries, including only partially coveri ng him with a blanket rather than properly swaddling him. This led dire ctly to his hypothermia and nearly caused his death. Effectively sending her mother away from the door was also affirmative action that kept the baby from getting help for severa l hours. Under either definition, defendant ‘personally inflicted’ great bod ily injury on her child.” ( Warwick , supra , 182 Cal.App.4th at p. 795.) Similarly, here, de fendant affirmatively ac ted in struggling so hard with Hare that the strap of her purse broke, causing her to fall with great momentum. During oral argument, defend ant argued the recent case of People v. Wilson (2013) 219 Cal.App.4th 500 supports his position. It does not. The court there held that a trial court may determine the truth of a de fendant’s prior convictions for a sentencing
enhancement where the issue does not involve a factual dispute, but “whether the offense
involved personal infliction ” could not be “determine[d] from the record of conviction . . . without resolving a factual dispute” ( id . at p. 511), which the court had no power to do under California law ( id . at p. 513). In so holding, it noted the California Supreme Court has held “the phrase ‘persona lly inflicts great bo dily injury’ in the analogous context of section 12 022.7 . . . applies ‘only to a person who himself inflicts the injury’” i.e., “‘“without th e intervention of another”’” or “‘through an intermediary,’” ( id . at p. 512), which is how defendant acted here. Having determined substantial eviden ce supports the great bodily injury enhancements attached to counts 1 and 2, we need not address defendant’s claims his presentence credits may not be limited under s ection 2933.1 and that the case should be

remanded for the court to determine at resent encing whether he is entitled to probation.7 b. Felony Elder Abuse Under section 368, subd ivision (b)(1), elder abus e occurs whenever “[a]ny person who knows or reasonably sh ould know that a person is an elder or dependent adult and who, under circumstances or conditions likel y to produce great bodily harm or death, willfully causes or permits any elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . .” De fendant argues “he did not personally inflict” injuries on Hare and that this “typical gr ab and go purse snatch” did not involve “a context or set of circumstances where grea t bodily injury or death were likely or expected.” We have rejected his first cont ention and the jury disagreed with the second. Because “[s]ection 368 is patterned on the felony child abuse statute . . . it is appropriate to review decisions interp reting [that statute] in addressing issues concerning the scope of section 368.” ( Roman v. Superior Court (2003) 113 Cal.App.4th 27, 35.) “‘[L]ikely’ . . . mean s a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” ( People v. Wilson (2006) 138 Cal.Ap p.4th 1197, 1204.) “‘Great bodily harm refers to significant or substantial injury and doe s not refer to trivial or insignificant injury.’” ( People v. Cortes (1999) 71 Cal.App.4th 62, 80.) A victim need not actually suffer great bodily harm or injury, but a ny injuries actually sustained
are relevant to whether the circumstances we re likely to produce great bodily injury. ( Ibid .) Here, the jury reasonably could have concluded from the ev idence that the force applied by defendant was “likely to pr oduce great bodily harm ” within the meaning of section 368, subdivision (b)(1). First, the injuries actually suffered were significant, as defendant concedes. Second, Hare testifie d defendant was “pulling so hard” that the purse straps on his side snappe d, causing her to fall backwa rds on a hard asphalt parking
lot with such momentum that she fractured her pelvis and sustained other injuries. Finally, at 85 years old, Hare was particularly susceptible to injury in the event of a fall (see People v. Racy (2007) 148 Cal.App.4th 1327, 1333 ( Racy ) [“as a matter of common8 knowledge, [74] is an age that carries with it an increased risk of bone fractures from a fall”]), particularly when targeted by a man taller and much yo unger than her. Asserting “unjustifiable physical pain” is ambigu ous, defendant claims statutory construction principles dictate a reversal because the history and purpose behind section 368 indicate it does not apply to “cri minalize as elder abuse the unlawful force used during a street crime simply because th e victim is elderly.” But as defendant acknowledges, the first step to statutory construction is to examine “‘the statutory language because it is generally the most re liable indication of legislative intent. [Citation.] If the statutory language is unamb iguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls.’” ( Lopez v. Superior Court (2010) 50 Cal.4th 1055 , 1063, disapproved on another ground in People v. Harrison (2013) 57 Cal.4th 1211 , 1230, fn. 2.) The phrase “unj ustifiable physical pain” is not ambiguous but rather is “pain or suffering that is not reasonably necessary or is excessive under the circumstances.” (CALCRIM No. 830; see also People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050 [“unj ustifiable” is “when it is not warranted by the circumstances, i.e., not necessary, or . . . alth ough warranted, was excessive”].) This is a question of fact for the jury. ( People v. Whitehurst , at p. 1050.) Although the court apparently did not instruct the jury with that particular language, the use notes for
CALCRIM No. 830 states the definition for “ unjustifiable physical pain” need only be given “on request . . . if there is a question about the necessity for or the degree of pain or suffering.” (Judicial Council of Cal. Cr im., Jury Instns. (2 013) Bench Notes to CALCRIM No. 830, at p. 552.) Here, there was neither a request nor a question.

c. “ Grand Theft Person” A person commits grand theft by, among other means, taking property “from the person of another.” (§ 487, subd. (c); In re Jesus O . (2007) 40 Cal.4th 859, 861 ( Jesus O. ).) Defendant contends the diaper bag was not “taken from Hickok’s9 person” because it “was in th e main compartment of the shopping cart, separated from her person.” We disagree. Generally, to satisfy the “from the pe rson” requirement, the property taken must have been “‘actually upon or attached to the person, or carried or held in [the person’s] actual physical possession.’” ( Jesus O ., supra , 40 Cal.4th at p. 863.) Property is “attached to the person” if the person ke eps in continual physical contact with the property to maintain dominio n and control over it. ( Id . at p. 864.) Property is also “‘attached to [the] person’” if the person is transporting the property in a shopping cart the person is physically grasping. ( Ibid .) But property is not “attached to [the ] person” if the person voluntarily lays the property aside and ceases physical contac t with the property, even if the property remains in the person’s immediate presence and under the person’s actual control. ( Jesus

O ., supra , 40 Cal.4th at pp. 864-865.) Thus, in People v. McElroy (1897) 116 Cal. 583, the victim used his trousers containing money as a pillow. The defendant took the trousers as the victim slept. The Suprem e Court reversed his conviction for grand larceny, concluding insufficient evidence showed the money had been taken from the victim’s person because to meet that requireme nt, the property must “in some way” be on “or attached to the person, or carried or held in actual physical possession . . . or . . . held or carried in the hands, or by other means,” and there the victim had effectively laid his trousers aside to use them as part of his bed while he slept. ( Id . at pp. 586-587.) Here, however, Hickok had not laid as ide the diaper bag but was actively carrying it “‘by other means,’ i. e., through the medium of the shopping cart with which, at the time of the theft, she was both in physical contact and control” ( In re George B

. (1991) 228 Cal.App.3d 1088, 1092 ( George B. )) by virtue of her act of placing her baby

into it at the time defendant took the diaper bag. Because we consider the evidence in the light most favorable to the ju dgment, the sufficiency of that evidence is not negated by Hickok’s further testimony that her hands were not on the cart and that she may have10 already placed her baby into it when defendan t took the bag. “Just as the shopping cart was ‘attached to [her] person’ [by way of her ba by] so also were its contents in precisely the same sense as are the contents of a purse which is stolen from the physical grasp of the victim.” ( Ibid .; see also People v. Huggins (1997) 51 Cal.Ap p.4th 1654, 1657 [sufficient evidence supported the “from the person” requirement for grand theft person where victim placed purse next to foot to maintain dominion and control].) People v. Williams (1992) 9 Cal.App. 4th 1465, 1471-1472, which reversed a conviction for grand theft from a person wh ere the victim threw her purse onto the passenger seat of her car before the defendant took it, is distingu ishable for the same reason. It therefore does not persuade us that George B .’s “theory of liability through connectedness was essentially rejected in Williams .”
Defendant also claims George B. misapplied McElroy . But although George B. distinguished McElroy , Jesus O ., did not disapprove of its analysis, despite expressly disapproving that of another case. ( Jesus O. , supra , 40 Cal.4th at pp. 864, 867.) To the contrary, Jesus O. cited George B . with approval in noting that Jesus O.’s actions taking the cell phone dropped by the vic tim after assaulting him “pose[d] a ‘threat of injury or death’ to the vic tim just as surely as – and pe rhaps more than – some of the cases upholding a finding of theft from the pe rson, and thus satisfy the rationale for making theft from a person a more serious crime than ordinary theft.” ( Id ., at pp. 868- 869.) We thus disagree that “[f]ocusing on threat le vel[s] leads to vague and unpredictable results” a nd decline to conclude George B. was wrongly decided.

2. Sua Sponte Instructi on Misdemeanor Elder Abuse Defendant argues the court erred in failing to instruct sua sponte on misdemeanor elder abuse as a lesser included o ffense of felony elder abuse. We disagree. “A trial court must instruct on a lesser included offense if there is substantial evidence from whic h a reasonable jury could conc lude the defendant is guilty11 of the lesser offense, but not the charged offense. [Citation.] ‘In deciding whether evidence is “substantial” in this context, a court determines only its bare legal sufficiency, not its weight.’ [Citation.] If ther e were such evidence, we as the reviewing court then ask whether the error requires reve rsal of the defendan t’s conviction for the greater offense. [Citation.] In a noncapital ca se, the error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818[] which requires reversal of the convic tion for the greater offense ‘if, “after an examination of the entire cause, including th e evidence” [citation], it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred.’ [Citation. ] Probability under Watson ‘does not mean more likely than not, but merely a reasonable chance, more th an an abstract possibility.’” ( Racy , supra , 148 Cal.App.4th at p. 1335.) Misdemeanor elder abuse occurs when a “person who knows or reasonably should know that a person is an elder or dependent adult a nd who, under circumstances or conditions other than those likely to produ ce great bodily harm or death , willfully causes or permits any elder or dependent adult to su ffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . .” (§ 368, subd. (c), italics added.) “[T]he difference between felony elder abuse and misdemeanor elder abuse is whether the abuse is perpetrated ‘under circumstances or conditio ns likely to produce great bodily harm or death.’ If it is, the crime is a potential felony. (§ 368, subd. (b)(1).) If it is not, the crime is a misdemeanor. (§ 368, subd. (c).) Mi sdemeanor elder abuse is a lesser included offense of felony elder abuse.” ( Racy , supra , 148 Cal.App.4th at pp. 1334-1335.) Defendant contends a “r easonable chance” exists the jury would have convicted him of misdemeanor elder abuse had it been instructed on it. He relies on Racy , supra , 148 Cal.App.4th 13 27, but that case is inapposite. Racy reversed the defendant’s felony elder abuse conviction due to the trial court’s prejudicial error in failing to instruct the jury on misdemeanor elder abuse as a lesser included offense of felony elder abuse, noting the victim “ did not suffer great bodily harm during the12 incident, so the jury was left to draw in ferences about whether the circumstances or conditions under which defendant inflicted phys ical pain or mental suffering were likely to produce great bodily harm or death.” ( Id . at p. 1335, italics added.) Racy explained, “[f]rom the facts that appear in the record, it is reasonable the jury could have viewed [the victim] as a rather large man who was not likel y to suffer great bodily injury or death during the incident despite his ag e and physical limitations. [He] is six feet three inches tall and weighs 210 pounds and even after being ‘zapped’ with the stun gun and pursued by defendant, he was ab le to retreat to the bedroom, attempt to make a 911 call, and lie down on the bed in a defensive position. He emerged unscathed after being tipped and tripped.” ( Id . at p. 1336, italics added.) Racy concluded the failure to instruct on misdemeanor elder abuse was prejudicial because “there was a ‘reasonable chance’ defendant ‘would have obtained a more favorab le outcome’ had the jury been instructed on misdemeanor elder abuse.” ( Ibid .) Here, in contrast, there was not. At the age of 85, Hare was 11 years older and even more susceptible to injury and bone fractures than the 74-year-old victim in Racy . (See Racy , supra , 148 Cal.App.4th at p. 1333.) Add itionally, unlike the victim in Racy , a large man who emerged unscathed after being assaulted in his home ( id . at p. 1336), Hare was targeted by a man taller and decades younger than her and suffered grea t bodily harm, as defendant admits, which was so severe that sh e was bedridden on her back for six to eight weeks, restricted to a wheelchai r for the next two and a half months, and thereafter had to use a walker for another three mont hs. The jury also found true 

### allegations that Hare’s “great bodily injur[ies]” were “personally inflict[ed]” by defendant. (§§ 12022.7, subd. (c), 1192.7, subd. (c)(8).) It was thus unnecessary for th e jury “to draw inferences about whether the . . . conditions under which defendant in flicted physical pain . . . were likely to produce great bodily harm” ( Racy , supra , 148 Cal.App.4th at p. 1335, italics added), as it found those circumstances in fact produced such harm. 

### Accordingly, even if the court erred by failing to instruct sua sponte on misdemeanor elder abuse, any such error was harmless as it is not reasonably probable13 defendant would have obtained a more favorable outcome had th e jury been so instructed, ( People v. Breverman (1998) 19 Cal.4th 142, 177-178), making it unnecessary to address defendant’s claim of ineffec tive assistance of counsel.

3. Section 654 Section 654, subdivision (a), provides that “[a]n act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished unde r more than one provision.” “‘Section 654 . . . applie[s] not only where there was bu t one “act” in the ordinary sense . . . but
also where a course of conduct violated more than one statut e and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’” ( Neal v. State of California (1960) 55 Cal.2d 11, 19 ( Neal ), disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 334.) “Whether a course of criminal c onduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were inci dent to one objective, the defendant may be punished for any one of such offens es but not for more than one.” ( Neal , at p. 19.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by su bstantial evidence” ( People
v. Blake (1998) 68 Cal.Ap p.4th 509, 512). Here the imposed sentence of 13 year s, 8 months consisted of, among other things, 4 years on count 1 (felony elder a buse) under section 36 8, subdivision (b)(1)), plus 5 years for the attached great bodily injury enhanc ement under section 1192.7, subdivision (c)(8), consecutive terms of 8 mont hs each on counts 3 (“grand theft person”) and 4 (felony evasion), a consec utive term of 1 year, 4 months on count 5 (felony child endangerment), concurrent 18 0-day terms for each of the misdemeanor simple assault14 convictions in counts 6 and 7, and 1 year each for the two prior prison terms. Defendant contends section 654 precludes multiple punish ment for counts 4 (felony evasion) and 5 (felony child endangerment), as well as for counts 3 (grand theft person) and 4 (felony evasion). Regarding counts 4 and 5, defendan t argues “the relevant act was [his] dangerous driving,” which is not “altered by th e fact that under count [4, he] endangered the pursuing officers and other motorists wh ile under count [5], he endangered his son who was a passenger. There is still only one relevant act of dangerous driving.” The Attorney General acknowledges “it appear s that [defendant’s] crime of evading police . . . was the basis for his endangerme nt of his child, and thus constituted an
indivisible course of conduct as to count s 4 [felony evasion] and 5 [felony child endangerment].” Because the record contains no evidence of a separate intent, section 654 bars multiple punishment for both offenses. The approp riate remedy is to impose a

sentence on each count and then stay punishment on the one carrying the lesser punishment. ( People v. Deloza (1998) 18 Cal.4th 585, 591- 592.) We thus modify the judgment by staying defendant’s eight-month term for count 4. As to count 3, defendant asserts hi s grand theft was indivisible from his attempt to evade capture by police. But the issue is moot given that the sentence on count 4 has already been stayed and defendant has not claimed his grand theft and child endangerment constitute an indi visible course of conduct.

4. Oral Protective Order
Defendant contends no st atute authorizes the court’s oral order to have “[n]o contact with the victims or witnesses.” The Attorney General agrees, as do we. The oral protective order was not aut horized by any of the various statutes allowing a protective order under certain circ umstances in a criminal case. “[S]ection 136.2, subdivision (a) authorizes issuance of a protective order during the duration of15 criminal proceedings. Yet, this statute doe s not authorize issuance of a protective order against a defendant who has been sentenced to prison unless the defendant has been convicted of domestic violence. [Citations.] Section 1203.1, su bdivision (i)(2), which

authorizes a no-contact order in some sex o ffense cases, only applies where the defendant is granted probation. Section 1201.3, subdiv ision (a) authorizes a no-contact order for a period of up to 10 years but only when the defendant was convicted of a sexual offense involving a minor victim.” ( People v. Robertson (2012) 208 Cal.App.4th 965, 996 ( Robertson .) Defendant was sentenced to pris on, remains in prison, and was not
convicted of domestic violence or a sexual o ffense. Thus, neither those statutes, nor sections 273.5, subdivision (i) [protectiv e order as a probation condition for willful infliction of corporal injury], 646.9, subdivis ion (k) [restraining order to protect stalking victims], 1203.097, subdivision (a)(2) [protective orders for spousal abuse victims where the defendant is granted probation], or 3053. 6 [no contact order when a defendant is released on parole] authorize the protective order in this case. Although the court may have had “‘ inherent authority’” to order a protective order “‘where the Legislature has not acted,’” the prosecution must present a “‘valid showing to justify th e need for the order.’” ( Robertson , supra , 208 Cal.App.4th at p. 996.) Here, as in Robertson , “the prosecutor did not make an offer of proof or argument justifying the need for a no-contact order” ( ibid .) and merely represented that a
witness told her the tires on his car had been sl ashed. This was insufficient to justify the order. ( Ibid .) The no contact order is stricken.

DISPOSITION

The judgment is modified to reflec t defendant’s eight-month term on count 4 is stayed. The no-contact order orally im posed by the trial court during the sentencing hearing on January 20, 2012 is stricken. As modified, the judgment is affirmed. The16 clerk of the superior court shall prepare a nd forward to the Department of Corrections

and Rehabilitation an am ended abstract of judgment refl ecting these modifications.

RYLAARSDAM, P. J.

WE CONCUR:

O’LEARY, J., P. J.

MOORE, J.