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The People v. Stephen Terry Fensler

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


October 30, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEPHEN TERRY FENSLER, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F01462)

The opinion of the court was delivered by: Hull , J.

P. v. Fensler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Stephen Terry Fensler, Jr., of assault with a deadly weapon and battery causing serious bodily injury after hearing evidence of a scuffle between defendant and the victim, during which the victim was stabbed. The victim had once dated defendant's girlfriend.

The trial court sentenced defendant to state prison and, among other things, ordered defendant to have no contact with the victim. Defendant asks that we direct the trial court to amend the abstract of judgment to strike the no-contact order. The People agree that we should do so.

We agree that the no-contact order was issued in error as the court lacked the authority to impose it. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-385 [Penal Code section 136.2 protective order unauthorized where order extended beyond pendency of criminal proceedings]; People v. Selga (2008) 162 Cal.App.4th 113, 118-120.) We also agree with the parties that, even though defendant did not object to the order below, as an unauthorized sentence the error can be corrected on appeal without an objection. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354.) We will order the no-contact order stricken.

DISPOSITION

The judgment is modified to strike the no-contact order; as modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: RAYE , P. J. BLEASE , J.

20121030

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