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Name: People v. Corpuz
Case #: F041563
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/23/2004
Subsequent History: Rev. granted 12/15/04: S128884

Corpuz appealed his conviction for stalking in violation of a court order, a felony under Penal Code section 646.9, subdivision (b), and violating a protective order, a misdemeanor under section 273.6, subdivision (a). He argued that the convictions had to be reversed because the probationary “stay away” order the convictions were based on did not fall within the meaning of either of the Penal Code sections under which he was convicted. The appellate court agreed, finding that a section 646.9, subdivision (b), conviction cannot be based on a violation of a condition of probation. The statute requires a violation of a court order, and a stay away condition of probation does not fall within the language of the statute. However, the evidence clearly established appellant’s guilt with respect to the elements of misdemeanor stalking under section 646.9, subdivision (b), a necessarily included offense, and therefore remand was required for resentencing on that subdivision. Further, appellant was improperly convicted of violating a protective order under section 273.6, subdivision (a). A probationary “stay away” order does not constitute a protective order.