Filed 5/20/14 P. v. Sharpe 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

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




THE PEOPLE,                                                                                  C073959

                   Plaintiff and Respondent,                                      (Super. Ct. No. 12F7721)

         v.

MICHAEL GLENN SHARPE,

                   Defendant and Appellant.




         Defendant Michael Glenn Sharpe pleaded no contest to two counts related to
domestic violence in exchange for an agreed four-year sentence to state prison. The plea
agreement also stated that execution of the prison sentence was to be suspended, and that
defendant would be released on his own recognizance until sentencing. Defendant
agreed to a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz) and was
instructed by the court not to have contact with the victim of his abuse prior to
sentencing. He agreed the court would not be bound by the four-year prison sentence cap
if he violated the court’s order. Almost immediately upon his release, he violated the


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terms of his agreement by having contact with the victim. The trial court sentenced him
to an aggregate prison term of six years four months.
       He now appeals the judgment of the trial court, contending the trial court (1) acted
in excess of its jurisdiction in failing to place a time limit on the restraining order it
imposed, and (2) improperly delegated its authority regarding restitution to the
Department of Corrections and Rehabilitation (CDCR). We agree the trial court erred in
failing to impose a time limit on the restraining order, but we find the trial court properly
referred determination of the restitution amount to the CDCR. Therefore, we partially
affirm and partially reverse the trial court’s judgment, and remand this matter to the trial
court to resentence defendant with respect to the restraining order only.

                                  FACTS AND PROCEEDINGS

       Defendant was charged with multiple felonies and misdemeanors related to
domestic violence of his former girlfriend: assault with intent to commit sodomy by
force (Pen. Code, §§ 220, 286, subd. (c) -- count one; unless otherwise stated, statutory
references that follow are to the Penal Code), a serious felony (§ 1192.7, subd. (c)(4));
sexual battery by restraint (§ 243.4, subd. (a) -- count two); corporal injury with a prior
conviction (§ 273.5, subds. (a), (e) -- count three); assault with force likely to cause great
bodily injury (§ 245, subd. (a)(4) -- count four); kidnapping (§ 207, subd, (a) -- count
five); false imprisonment by violence (§§ 236, 237 -- count six); sexual battery (§ 243.4,
subd. (e)(1) -- count seven); and corporal injury with a prior conviction (§ 273.5, subds.
(a), (e) -- count eight).
       Defendant entered into a negotiated plea agreement in which he pleaded no contest
to counts three and eight and admitted two prior convictions in exchange for a sentence
of four years, execution of the sentence suspended, and defendant released on his own
recognizance pending sentencing. As part of the agreement, defendant executed a Cruz
waiver, which prohibited him from having any contact with the victim pending


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sentencing. Defendant was released on his own recognizance and, that same day,
violated his agreement to stay away from the victim.
       After violating the plea agreement, defendant was sentenced to an aggregate term
of six years four months in state prison: the upper term of five years for count three and
one year four months (one-third the middle term) for count eight. Defendant was also
granted presentence credits and ordered to pay enumerated fines and fees. The court
further ordered, without temporal limitation, that defendant “neither knowingly attempt,
or have any contact in any manner with, nor be in the presence of [the victim].” Finally,
the court ordered defendant to “pay victim restitution to [the victim] and the Victim’s
Compensation Government Claims Board as directed by the [CDCR].”

                                         DISCUSSION

                                               I

                                     Restraining Order

       Defendant contends the trial court’s restraining order of unlimited duration entered
at the time of sentencing warrants reversal because it is an unauthorized sentence in
violation of section 273.5, subdivision (j). The Attorney General agrees.
       Section 273.5, subdivision (j) permits the sentencing court to issue a restraining
order prohibiting a defendant convicted of a crime under that section from having any
contact with the victim of domestic violence. The duration of the restraining order,
subject to the statutory limit of 10 years, is to be determined by the court “based upon the
seriousness of the facts before the court, the probability of future violations, and the
safety of the victim and his or her immediate family.” (Ibid.)
       Here, the trial court did not render a decision limiting how long the restraining
order was to remain in effect; nor did it discuss any of the factors set forth in
section 273.5, subdivision (j). Therefore, the restraining order is of unlimited duration
and, by extension, is an unauthorized sentence. (See People v. Scott (1994) 9 Cal.4th

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331, 354 (Scott).) Accordingly, we reverse the trial court’s judgment with respect to the
duration of the restraining order and remand the matter to the trial court for resentencing.

                                               II

                                          Restitution

       Defendant contends the trial court erred when it ordered defendant to “pay victim
restitution to [the victim] and the Victim’s Compensation Government Claims Board as
directed by the [CDCR].” Defendant concedes the trial court may delegate the
calculation of the amount of restitution to be paid, but he contends that by ordering
defendant to pay restitution “as directed by” the CDCR, the trial court impermissibly
delegated the determination of whether restitution should be paid and the manner in
which it was to be paid. Defendant claims, without citation to legal authority, that “the
order can reasonably be interpreted to delegate all judicial authority concerning
restitution to the CDCR.” Even assuming defendant did not forfeit this claim by failing
to raise this objection in the trial court, the claim fails. (Scott, supra, 9 Cal.4th at p. 352,
fn. 15; People v. Keele (1986) 178 Cal.App.3d 701, 708.)
       Section 1202.4, subdivision (f) provides that, except in circumstances not pertinent
here, “in every case in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution order shall include a
provision that the amount shall be determined at the direction of the court.” In that
circumstance, the court may delegate the restitution calculation to another agency.
(People v. Lunsford (1998) 67 Cal.App.4th 901, 903-904 [finding trial court complied
with section 1202.4 by directing local agency to determine amount of victim restitution to




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be paid, and noting that defendant may challenge restitution amount in court if
dissatisfied with the agency’s calculation].)
       Here, the trial court ordered defendant to pay restitution “as directed” after
reviewing the probation report and stating its inclination to follow the recommendations
set forth in the report. The report noted that no open claim had been made for restitution
by the victim, but also noted personal injury and property damage suffered by the victim
and caused by defendant for which restitution may be required. By making its order to
pay restitution, the court implicitly determined defendant had to pay restitution.
Therefore, defendant’s proposed reading of the court’s order as a delegation to the CDCR
of the decision whether to require restitution is not supportable. Nor is the court’s order
fairly read as a delegation to the CDCR of the manner of paying restitution. Rather, the
court ordered defendant to “pay victim restitution to [the victim] and the Victim’s
Compensation Government Claims Board.” No further direction is required.
       Accordingly, the court’s restitution order is not an improper delegation of its
authority.

                                         DISPOSITION

       The judgment is reversed and remanded for further sentencing proceedings by the
trial court with respect to the duration of the restraining order. In all other respects, the
judgment is affirmed.


                                                          HULL                   , J.


We concur:


      BLEASE                 , Acting P. J.


      DUARTE                 , J.


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