Sentencing Manual, Sections XXI Through XXV

September 2013

Always check to determine if the case has been granted review, depublished, or modified. Additionally, review the Three-Strikes Outline for all Three-Strikes related issues.

XXI. Sex Registration

A. Sex Registration for Felonies

  1. People v. Musovich (2006) 138 Cal.App.4th 983, the Third Appellate District held that where the defendant was charged with violating former section 290, subd. (g)(2), by being “a person required to register [as a sex offender] who did willfully violate any requirement of this section,” and the prosecutor elected to proceed solely on the theory that the defendant was guilty if he did not update his registration within five days of the date the parole officer allegedly discovered he was no longer at his registered address, the court correctly instructed the jury based on that theory, and any error in omitting an instruction specifically referencing 290, subd. (a)(1)(A) concerning obligation to update registration was harmless beyond a reasonable doubt where sole issue in contention was whether defendant was still living at the registered address when the parole officer visited.

  2. In re Derrick B. (2006) 39 Cal.4th 535, the California Supreme Court held that it was error to order the minor to register under section 290, subd. (a)(2)(E), as a sex offender, unless the offenses are among those listed in subd. (d)(3), which does not include sexual battery.

  3. People v. Hofsheier (2006) 37 Cal.4th 1185, the California Supreme Court held that the requirement that every defendant 21 years of age or older convicted of voluntary oral copulation with a person between the ages of 16 and 18 register as a sex offender violates constitutional right to equal protection, since defendant 21 or older who has voluntary sexual intercourse with a person between 16 and 18 is not subject to the mandatory registration requirement and there is no rational basis for the distinction.

  4. People v. Gonzales (2007) 149 Cal.App.4th 304, the Second Appellate District, Division 6, held that pursuant to Penal Code section 290, subd. (g)(2), which provides that failure by a sex offender registrant to notify authorities of a change of address constitutes a felony if the underlying offense requiring registration is a felony, the court does not have the discretion to impose either felony or misdemeanor punishment, but must impose felony punishment.

  5. People v. Fielder (2007) 154 Cal.App.4th 712, the Fourth Appellate District, Division 1 held that a registered sex offender’s act of failing to notify authorities of his whereabouts on three separate occasions were separate acts for which three separate punishments could be imposed.  (See People v. Meeks (2004) 123 Cal.App.4th 695, 705-706; see also People v. Davis (2002) 102 Cal.App.4th 377.)

  6. People v. Garcia (2008) 161 Cal.App.4th 475, the Second Appellate District, Division 1 held that in ruling on whether to grant discretionary relief from lifetime sex offender registration requirement, the court erred in its conclusion that it should not consider circumstances subsequent to defendant’s conviction.  The remand is to hold a hearing pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185, but since sex registration in not punishment pursuant to People v. Castellanos (1999) 21 Cal.4th 785, 799, it would not be in violation of a prohibited ex post facto application if the court imposes the registration after the hearing.

  7. People v. Hernandez (2008) 166 Cal.App.4th 641, the Second Appellate District, Division 2 held that lifetime sex offender registration for offender convicted of oral copulation with minor between ages of 14 and 16, while granting the trial court discretion as to whether to impose the requirement on an offender convicted of oral copulation with minor between ages of 16 and 18, makes an irrational distinction and violates equal protection clauses of the state and federal constitutions.  (See People v. Hofsheier (2006) 37 Cal.4th 1185; People v. Garcia (2008) 161 Cal.App.4th 475.)  Defendant’s appeal from order denying post-plea motion to vacate sex offender registration requirement was not an attack on the underlying plea of no contest or defendant’s conviction, and thus did not require a certificate of probable cause.  (People v. French (2008) 43 Cal.4th 36, 43.)

  8. People v. Milligan REHEARING GRANTED; FORMERLY AT: (2008) 166 Cal.App.4th 1208, the Fourth Appellate District, Division 3 held that the 2003 amendment to section 290 [requires sex offenders to register and notify local law enforcement within five working days of changing residence], is regulatory, not punitive, in nature and does not violate ex post facto prohibition as applied retroactively to defendant, who was required to register as a sex offender in 1987.  The defendant’s challenge to 2005 amendment, which imposes a duty to register even when a defendant’s conviction has been dismissed unless defendant obtains a certificate of rehabilitation and is entitled to relief from registration, was not ripe for adjudication because amendment will only apply to defendant if and when a court permits him to withdraw his guilty plea and dismisses charge against him.  Statutes enacted after defendant’s registration requirement arose requiring public notification and access to sex offender information do not constitute punishment and would not violate the ex post facto clauses if applied retroactively to defendant.  Retroactive application of DNA collection and sampling requirements are not an ex post facto violation so long as there remains a current requirement to register.

  9. Lewis v. Superior Court (2008) 169 Cal.App.4th 70, the Sixth Appellate District held that where petitioner filed a motion in superior court requesting that court lift lifetime registration requirement 20 years after petitioner was ordered to register, pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185, and prosecution conceded that mandatory sex offender registration violated petitioner’s right to equal protection, appellate court treated petitioner’s appeal as petition for writ of mandate.  Where record indicated that neither petitioner’s 1987 conviction nor petitioner’s subsequent criminal history could support an order requiring sex offender registration, petitioner was entitled to writ relief directing superior court to relieve petitioner of sex offender registration requirement.

  10. People v. Williams (2009) 171 Cal.App.4th 1667, the Fifth Appellate District held that there was sufficient evidence to establish that appellant did not register within 5 “working days” of moving back to Madera after his release from prison.  Appellant contended that there were only 10 days-not including the day of his release-during which he could have established residency, and only 6 working days during that period, and two of which should not have counted since he could only stay with a friend one day, and at a Mission one day due to its proximity to a school.  The Court of Appeal merely found that he began residing in Madera the day he came back to the city, especially since he had relatives in the city.  Also, this appellant was sentenced to 25 to life based on his Three Strike sentence.  Therefore, the defendant’s ability to remain at one location for 5 consecutive days was not required to establish residence for purposes of section 290, subdivision (a)(1)(A).

  11. People v. Ranscht (2009) 173 Cal.App.4th 1369, the Fourth Appellate District, Division 1 held that there was an equal protection violation for mandating lifetime sex offender registration for an offender convicted of sexually penetrating a 13-year-old minor, pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185,  because a similarly situated offender convicted of unlawful sexual intercourse with a victim the same age would not face mandatory lifetime registration.  This court disagrees with the rationale of People v. Manchel (2008) 163 Cal.App.4th 1108.

  12. People v. Luansing (2009) 176 Cal.App.4th 676, the Second Appellate District, Division 2 held, consistent with People v. Hofsheier (2006) 37 Cal.4th 1185, that subjecting defendant to mandatory sex offender registration based on his conviction for oral copulation with a victim more than 10 years his junior and under the age of 16 violated equal protection.  This court agreed with the rationale of People v. Ranscht (2009) 173 Cal.App.4th 1369, and rejected the analysis of People v. Manchel (2008) 163 Cal.App.4th 1108.

  13. People v. Wallace (2009) 176 Cal.App.4th 1088, the First Appellate District, Division 3 held that pursuant to section 290, subdivision (f)(1), as it read in April 2007, evidence, that a sex offender as of a specified date more than five working days after he registered with police was no longer living at the address at which he had most recently registered, and that he failed to notify the agency with which he registered or any other agency after the last registration date that he was leaving or had left that address, was sufficient to prove that the defendant failed to notify the appropriate agency “of the move, the new address or transient location, if known, and any plans he or she has to return to California.”  There was no requirement that the prosecution also prove that the defendant had established a new address.  The prosecution met its burden of proof with respect to actual knowledge of the sex offender registration requirement by offering evidence that the defendant received and acknowledged receiving information from several representatives of the police regarding his legal duty to notify the agency upon changing his address when he personally appeared to register on several occasions.  The instruction that in order to find the defendant guilty of violating former section 290, subdivision (f)(1), the jury had to find defendant “actually knew of his duty to register as a sex offender and specifically of his duty to register within five working days of a change of residence”, was inaccurate to the extent it referred to a duty to register rather than a duty to notify, but that error was harmless beyond a reasonable doubt where there was strong evidence defendant actually knew he was under a duty to notify.  Under former section 290, subdivision (a)(1)(A), as amended in 2006, providing that a sex offender “for the rest of his or her life while residing in California . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department,” the prosecution is not required to prove the defendant’s exact new address or that he moved to a new location within the same county, but must prove that defendant moved to a location within California.  The trial court’s failure to so instruct the jury was prejudicial.

  14. People v. Picklesimer (2010) 48 Cal.4th 330, the California Supreme Court held that an individual who is no longer in custody for violating section 288a, subdivision (b)(1) and whose appeal is final, may only obtain relief from mandatory lifetime sex offender registration (§ 290), based on equal protection (see People v. Hofsheier (2006) 37 Cal.4th 1185), by way of a petition for writ of mandate in the trial court.  In cases where mandatory sex offender registration  has been shown to violate equal protection, the procedure that most closely matches legislative intent is not automatic removal of a sex offender from the state sex offender registry, but an after-the-fact discretionary determination whether removal is appropriate.

  15. People v. Jeha (2010) 187 Cal.App.4th 1063, the Third Appellate District held that a violation section 289, subdivision (d) (penetration with a foreign object, unlike the offense in People v. Hofsheier (2006) 37 Cal.4th 1185 (consensual oral cop), did not violate state and federal equal protection guarantees because the statute neither implicated a fundamental right nor operated to the singular disadvantage of a suspect class, and bore a rational relationship to a legitimate state purpose.  (Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 552.)  The defendant's mandatory lifetime sex offender registration within the meaning of section 290, did not infringe a fundamental right to privacy in violation of the federal and state rights to substantive due process because the purpose it served, which was regulatory and nonpunitive, was neither arbitrary nor unreasonable.  (People v. Picklesimer (2010) 48 Cal.4th 330, 344; People v. Hofsheier, supra, 37 Cal.4th at p. 1196.)

  16. People v. Mosley REVIEW GRANTED (S187965); FORMERLY AT: (2010) 188 Cal.App.4th 1290, the Fourth Appellate District, Division 3 held that it is now clear that facts supporting the imposition of discretionary sex offender registration must be found true by a jury beyond a reasonable doubt (see Apprendi, Booker and Cunningham), since imposition of such a requirement as part of sentencing on an underlying offense increases the penalty for that offense beyond the statutory maximum.  Jessica's Law requirement (Proposition 83), that registered sex offender live more than 2,000 feet from any school or playground makes the registration requirement “overwhelmingly punitive” (People v. Castellanos (1999) 21 Cal.4th 785, 795), for purposes of the Sixth Amendment right to trial by jury.

  17. People v. Singh (2011) 198 Cal.App.4th 364, the Fourth Appellate District, Division 1 held that unlike the offense in People v. Hofsheier (2006) 37 Cal.4th 1185 (consensual oral cop), subjecting sex offenders convicted under section 288, subdivision (a), to mandatory sex offender registration does not violate equal protection, because offenders convicted under this statute are not similarly situated to persons convicted of unlawful sexual intercourse with a minor, oral copulation with a minor, or sexual penetration with a minor. Section 288, subdivision (a) affords a specific protection to minors under the age of 14 and is a specific intent offense whereas these other crimes are general intent offenses against minors under the age of 18.  This court also distinguished its prior decision in People v. Ranscht (2009) 173 Cal.App.4th 1369.

  18. People v. Tuck (2012) 204 Cal.App.4th 724, the First Appellate District, Division 3 held that the trial court does not have discretion under section 1385 to grant a dismissal in the interests of justice to relieve a defendant of the duty to register as a sex offender.  The mandatory requirement that the defendant register as a sex offender because of a conviction for section 288, subdivision (a), does not violate the constitutional guarantee of equal protection.  (People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oral cop].)  A defendant convicted of lewd conduct on a minor under 14, are not similarly situated with persons convicted of sex offenses under other statutes that do not require the minor victim to be so young.  However, the defendant can apply for a certificate of rehabilitation to relieve himself of the registration requirement.

  19. People v. Allexy (2012) 204 Cal.App.4th 1358, the Third District held that the trial judge erred by ordering the defendant, who pled guilty to child endangerment, which is an offense for which sex offender registration is discretionary and not mandatory, to register as a sex offender following revocation of probation where no such order was made at sentencing, but the decision was bifurcated if and until the defendant violated probation.  The trial court may, however, order registration at time of sentencing but suspend the requirement, thus reserving the right to impose it if probation is subsequently revoked.  (See § 290.006.)  The trial court’s error in ordering registration following probation revocation did not require reversal, where the judge announced at sentencing that he would order registration if probation were later revoked, and the claim of error was forfeited or the error invited because defense counsel acquiesced to the court’s procedure.

  20. People v. Gonzalez (2012) 211 Cal.App.4th 132, the Fourth Appellate District, Division 2 held that the trial court did not err when it imposed a mandatory sex offender registration requirement, under section 290, to the defendant who was convicted of possession of child pornography, (§ 311.11, subd. (a)) but not on persons convicted of statutory rape does not violate equal protection, and therefore, according to this court did not violate People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oral cop].). The Court of Appeal found that the defendant could or did not show that the minors in the photographs acted voluntarily.  The possession of child pornography is distinct from statutory rape in multiple respects on which the legislature could rationally rely.

  21. Shoemaker v. Harris (2013) 214 Cal.App.4th 1210, the Second Appellate District, Division 1 held that it is not a violation of the equal protection clause, and the dictates of People v. Hofsheier (2006) 37 Cal.4th 1185, and/or People v. Picklesimer (2010) 48 Cal.4th 330 [an equal protection claim, where the claimant is not in custody or restricted, must be by way of writ of mandate].)  The defendant was convicted in 2004 of misdemeanor possession of obscene material of minors engaged in sexual conduct (see §§ 311.1 and 311.3).  Appellant complains that he should not have to have a lifetime registration requirement as a sex offender.   He argues that whereas defendants convicted of certain other offenses, such as oral copulation with a minor, are not so required, except at the discretion of the sentencing court, the mandatory registration due to the fact that sections 311.1, and 311.3 are listed in section 290, subdivision (c), violates Equal Protection Clause.  This Court of Appeal disagrees with the defendant's contentions on the basis that the distinction has a rational basis because of connection between child pornography and child sexual abuse.

B. Sex Registration for a Misdemeanor

  1. People v. Noriega (2004) 124 Cal.App.4th 1334, the Fourth Appellate District, Division 3, based on its interpretation of In re Alva (2004) 33 Cal.4th 254, held that it was required to impose on the defendant sex registration for a violation of misdemeanor indecent exposure, and that it is not cruel and unusual punishment, since registration is not punishment.

XXII. Right to Allocution

A. Defendant's Right

  1. United States v. Gunning (2005) 401 F.3d 1145, the Ninth Circuit Court of Appeal held that a defendant’s right to allocution at sentencing applies to resentencing following an appeal.  There is no requirement that such right be spelled out in the remand, and where allocution is denied, the error is prejudicial if the court had any discretion to impose a lesser sentence.

  2. People v. Ornelas (2005) 134 Cal.App.4th 485, the Second Appellate District, Division 6 held that the court’s failure to advise the defendant of his right to allocution (see In re Shannon B. (1994) 22 Cal.App.4th 1235, 1238; § 1200), was harmless error where the defendant was represented by counsel, who objected at time of sentencing to certain aspects of the sentence, but did not object that the defendant should be given the opportunity to address the court.  Statements of the defendant and counsel, relative to sentencing, were included in the probation report that was considered by the court.  Additionally, the Court of Appeal found that the defendant could not show prejudice.

  3. People v. Evans (2008) 44 Cal.4th 590, the California Supreme Court held that section 1200 (the right to allocution), gives a defendant the right to make a personal statement in mitigation of punishment, but now with the limitation that he be under oath and subject to cross-examination by the prosecutor.

  4. People v. Nitschmann (2010) 182 Cal.App.4th 705, the Second Appellate District, Division 6 held that where the defendant demonstrated his understanding of a negotiated disposition and expressed a desire for immediate sentence, he forfeited his right to testify in mitigation of punishment, and impliedly waived his right to allocution within the meaning of section 1204 for sentencing.  (See People v. Evans (2008) 44 Cal.4th 590, 600.)  Before accepting a negotiated change of plea, a trial court need generally must determine that a factual basis for the plea (see People v. French (2008) 43 Cal.4th 36, 50; § 1192.5); however, as here, the parties can stipulate to the factual basis for the plea.  (People v. Holmes (2004) 32 Cal.4th 432, 436.

B. Victim Testifying at Sentencing Hearing

  1. People v. Randall REVIEW DISMISSED (S157645) formerly at:  (2007) 155 Cal.App.4th 228, the Third Appellate District held that the victim has a right to speak at any sentencing proceeding, not just the original proceeding, and that includes sentencing at a probation violation hearing.  (See § 1191.1; People v. Zikorus (1983) 150 Cal.App.3d 324, 330-332.)  This case presents the following issues:  (1) Does Penal Code section 1191.1 grant the victim of a crime the right to be heard by a trial court at all sentencing hearings?  (2) If not, what is the scope of the trial court’s discretion to hear from the victim at sentencing?

  2. People v. Superior Court (Smith) (S158084) nonpublished opinion.  This case presents the following issues:  (1) Does Penal Code section 1191.1 grant the victim of a crime the right to be heard by a trial court at all sentencing hearings?  (2) If so, was it harmless error here for the trial court not to allow the victim, who spoke at the original sentencing hearing, to speak at the time of resentencing after the trial court recalled the original sentence?

XXIII. Sentence on Greater, Dismiss the Lesser

  1. People v. Chan (2005) 128 Cal.App.4th 408, the Second Appellate District, Division 5 held that the defendant cannot be convicted of violating section 288, subd. (b)(1), lewd conduct by force, and section 288, subd. (a), lewd conduct without force, where the same conduct make up both offenses, as the section 288, subd. (a) is a lesser included offense to the section 288, subd. (b)(1) offense.  (See People v. Ortega (1998) 19 Cal.4th 686, 692, 693 [cannot be convicted of the lesser included offense and the greater offense].) 

  2. People v. Ceja (2010) 49 Cal.4th 1, the California Supreme Court held that where the trial court failed to instruct the jury pursuant to section 296, subdivision (a) that a defendant may not be convicted of stealing and receiving the same property (see People v. Allen (1999) 21 Cal.4th 846), and the jury convicted the defendant of both charges, the court of appeal erred in reasoning that the greater felony receiving offense took precedence over the lesser misdemeanor theft offense because a theft conviction has traditionally operated as a bar to a receiving conviction, and the legislature gave no indication it meant to change the established practice when it enacted the statute.

XXIV. Multiple or Single Conviction Based on the Same or Different Theory of the Conviction

  1. People v. Garcia (2003) 107 Cal.App.4th 1159, the Second Appellate District, Division 6, held that the prosecutor was not free to charge three counts of evading even though the defendant led three police vehicles on a lengthy high-speed chase; he could only be found guilty of one count of evading.  (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.)

  2. People v. Williams (2004) 120 Cal.App.4th 209, the Fourth Appellate District, Division 2 held, contrary to the well reasoned opinion in People v. Garcia (2003) 107 Cal.App.4th 1159, wherein the Court of Appeal held that a defendant could only be found guilty of one count of evading, and not for as many counts as number of police officers giving chase, this Court of Appeal found that a violation of section 2800.2, is a crime of violence for purposes of the multiple-victim exception to section 654, and therefore, a defendant who violated section 2800.2 while fleeing from the scene of the robbery was properly convicted of both crimes.

  3. People v. Davey (2004) 122 Cal.App.4th 1548, the First Appellate District, Division 2 held that a defendant who commits a single act of indecent exposure within the meaning of section 314.1, and the act is witnessed by 2 minors simultaneously, he can only be sentenced on one count pursuant to section 654.  (Cf. People v. Hall (2000) 83 Cal.App.4th 1084, 1088-1090 [can punish multiple times for a single episode of violent conduct].)  The multiple victim exception to section 654 does not apply as the act is not one of violence, nor is there a separate criminal objective to the single act.

  4. In re Carleisha P. (2006) 144 Cal.App.4th 912, the Second appellate District, Division 3 held that section 12101, subdivision (b) (possession of live ammunition by a minor), is violated only one time by the minor who has simultaneous possession of different types of ammunition.  A single crime cannot be fragmented into more than one offense.  (People v. Rouser (1997) 59 Cal.App.4th 1065, 1073.)

  5. People v. Muhammad (2007) 157 Cal.App.4th 484, 494, the First Appellate District, Division 5 held that, a defendant can only be convicted of one count of section 646.9, as other subdivisions in the section are merely penalty provisions for stalking.  Subdivisions (b), (c)(1), and (c)(2) are penalty provisions triggered when the offense of stalking as defined in subdivision (a) is committed by a person with a history of misconduct.  Therefore, the Court of Appeal imposed sentence on section 646.9, subdivision (c)(2) and dismissed the other three counts of stalking.  (See People v. Ryan (2006) 138 Cal.App.4th 360, 371.)

  6. People v. Martinez (2008) 161 Cal.App.4th 754, the Fourth Appellate District, Division 2, held that where the defendant who unlawfully induces the victim to sign a single document in more than one place, he may only be convicted of one count of forgery.

  7. People v. Morelos (2008) 168 Cal.App.4th 758, the Fifth Appellate District held that even though various goods were stolen from different sources, different victims, but were received on a single occasion, there can only be one offense and one guilty verdict of receiving stolen property.  (People v. Smith (1945) 26 Cal.2d 854, 859; see also People v. Lyons (1958) 50 Cal.2d 245, 275.)  However, absent any evidence that the defendants received stolen property on a single occasion, the jury could reasonably infer that foods were not received at one time or in one transaction, and conviction and sentencing on each count was proper.  (See People v. Bullwinkle (1980) 105 Cal.App.3d 82, 92.)  Additionally, the defendants’ possession of multiple, identical checks constituted a single count of forgery.  Where every forged drivers’ license bore personal information of one victim, multiple counts for possession of forged driver’s licenses must be stricken.  Where the jury could reasonably infer that defendants not only altered genuine checks but also generated fictitious checks during an ongoing forgery operation, multiple convictions for possession of altered checks were proper. Two forgery convictions cannot arise from one check.  (See People v. Bowie (1977) 72 Cal.App.3d 143; People v. Carter (1977) 75 Cal.App.3d 865.)  Where there is some evidence which shows only a single crime, but leaves room for disagreement as to exactly how theat crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the “theory” of the defendant’s guilt.  (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

  8. People v. Manfredi (2008) 169 Cal.App.4th 622, the Fifth Appellate District held that simultaneous possession of multiple child pornography materials at one location was chargeable as one criminal offense under section 311.11.

  9. People v. Kenefick (2009) 170 Cal.App.4th 114, the Third Appellate District held that where the defendant  forged four individuals’ signatures on two documents, he could only be convicted of two counts of forgery under section 470, subdivision (a).  (See People v. Ryan (2006) 138 Cal.App.4th 360, 366-367.)

  10. People v. Smith (2010) 191 Cal.App.4th 199, the Third Appellate District held that where the evidence indicated only one act of sexual intercourse with victim, the defendant's convictions for both the rape of an intoxicated woman and rape of an unconscious woman (Pen. Code § 261, subd. (a)(3)), could not stand.

XXV. Protective Order Against the Defendant

  1. People v. Ponce (2009) 173 Cal.App.4th 378, the Second Appellate District, Division 6 held that the trial court lacked statutory authority to issue a three-year protective order pursuant to section 136.2 against defendant at sentencing.  (See People v. Selga (2008) 162 Cal.App.4th 113, 118).  Additionally, the trial court also lacked inherent authority to issue such an order absent any evidence that defendant had threatened, or had tried to dissuade, any witness or had tried to unlawfully interfere with criminal proceedings. (Bitter v. U.S. (1967) 389 U.S. 15, 19 [19 L.Ed.2d 15, 88 S.Ct. 6] [even where a court has inherent authority over an area where the Legislature has not acted, this does not authorize issuing orders against defendants by fiat or without any valid showing to justify the need for the order].)

  2. People v. Robertson (2012) 208 Cal.App.4th 965, the Fifth Appellate District held that an order barring contact between defendant and victim was not authorized by any statute, and was not supported by a factual basis where defendant was sentenced to prison. (See People v. Stone (2004) 123 Cal.App.4th 153, 384 [a court cannot issue a protective order against a defendant who has been sentenced to state prison unless he has been convicted of domestic violence]; People v. Ponce (2009) 173 Cal.App.4th 378, 383-383.)