Filed 12/29/14 P. v. Rounds CA5




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        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067524
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1448368)
                   v.

RICKEY MAURICE ROUNDS,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.

         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before    Levy, Acting P.J., Cornell, J., and Gomes, J.
                                        INTRODUCTION
       Following a conviction for assault with intent to commit a specified sex offense, a
no-contact order was issued by the trial court forbidding defendant Rickey Maurice
Rounds from contacting the victim of his crime. On appeal, defendant contends the court
did not have authority to make such an order. We will direct the trial court to modify its
order to comply with the applicable statutory authority.
                          BRIEF PROCEDURAL BACKGROUND
       Pursuant to a criminal complaint filed August 30, 2012, on or about January 8,
2012, defendant committed a lewd and lascivious act upon his girlfriend’s daughter. The
victim, referred to as Jane Doe, was under the age of 14. (Pen. Code,1 § 288, subd. (a).)
The complaint further alleged defendant had committed a prior serious felony and had
served a prior prison term. (§§ 667, subd. (d), 667.5, subd. (b).)
       At a hearing held April 23, 2013, defendant agreed to enter a no contest plea to a
violation of section 220, subdivision (a)(1).2 The prior prison term allegation was
stricken,3 and the court indicated it would impose the mitigated term of two years at the
time of sentencing. Thereafter, on June 20, 2013, the court sentenced defendant to a term
of two years in state prison. It also issued a no-contact order that is the subject of this
appeal.
                                          DISCUSSION
       Defendant argues the trial court did not have valid statutory authority for issuing
its no-contact order because section “1202.01” does not exist. Further, he contends no
other statute provides the relevant authority for the court’s order. Moreover, defendant

       1All   further statutory references are to the Penal Code unless indicated otherwise.
       2“Except  as provided in subdivision (b), any person who assaults another with intent to
commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289
shall be punished by imprisonment in the state prison for two, four, or six years.”
       3The People’s    motion to strike the prior serious felony allegation was granted at an
earlier hearing.



                                                  2.
argues there is nothing in the record to support the use of the court’s inherent authority to
issue the no-contact order. The People agree the trial court did not identify valid
statutory authority for its order at the time it imposed sentence. However, the People
contend the order could have been imposed pursuant to section 1203.1; therefore, they
assert remand is appropriate.
The Law & Our Analysis
       An unauthorized sentence exceeds the court’s jurisdiction because it cannot be
legally imposed. (In re Lynch (1972) 8 Cal.3d 410, 414.) A sentence that was not made
in conformity with an applicable statutory authority is said to be unauthorized. (People v.
Scott (1994) 9 Cal.4th 331, 354.) Further, an unauthorized sentence is an exception to the
general rule that an objection must be preserved at trial to be cognizable on appeal.
(Ibid.; see People v. Robertson (2012) 208 Cal.App.4th 965, 995.)
       As both parties recognize, “section 1202.01”—referenced by the trial court in
imposing the order at issue—does not exist. Initially, defendant argues, and the People
concede, that section 1202.05 does not apply here. We agree with defendant and accept
the People’s concession. Section 1202.054 explicitly references a number of sexual
assault provisions, yet those provisions do not include section 220, the crime to which
defendant pled.
       Defendant further contends the court’s order cannot stand under any other
provision. More particularly, he claims section 1203.15 is inapplicable because probation
was not granted. A two-year term was imposed. And section 136.26 does not apply

       4That  section provides, in relevant part: “(a) Whenever a person is sentenced to the state
prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 288, 288a,
288.5, or 289 … the court shall prohibit all visitation between the defendant and the child
victim.”
       5Section  1203.1, subdivision (a) commences with the following language: “The court, or
judge thereof, in the order granting probation ….” (Italics added.)
       6At the time of sentencing in this matter, former “section 136.2, subdivision (a)
authorize[d] issuance of a protective order during the duration of criminal proceedings. Yet, this


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because defendant was not convicted of a crime of domestic violence. We agree with
these contentions as well.
       Nevertheless, we believe an applicable statute exists that provides the court with
authority to issue a no-contact order in a case such as defendant’s, to wit: section 1201.3.
The People argue “[a]ll that section 1201.3 requires is that [defendant] be convicted of a
sexual offense involving the minor, which he was.” The People contend the trial court’s
confusion makes remand appropriate, particularly where, as here, the trial court “was
concerned enough with the child’s welfare pretrial to order a criminal protective order
under section 136.5.” They maintain another section may serve a similar purpose, and
hence, remand would permit the “trial court to consider its options.”
       Specifically, section 1201.3 provides, in pertinent part, as follows:

              “(a) Upon the conviction of a defendant for a sexual offense
       involving a minor victim …, the court is authorized to issue orders that
       would prohibit the defendant …, for a period up to 10 years, from
       harassing, intimidating, or threatening the victim or the victim’s family
       members or spouse. [¶] … [¶]

               “(c) Notice of the intent to request an order pursuant to this section
       shall be given to counsel for the defendant … by the prosecutor or the court
       at the time of conviction, … and counsel shall have adequate time in which
       to respond to the request before the order is made.”




statute d[id] not authorize issuance of a protective order against a defendant who ha[d] been
sentenced to prison unless the defendant ha[d] been convicted of domestic violence.” (People v.
Robertson, supra, 208 Cal.App.4th at p. 996; see People v. Ponce (2009) 173 Cal.App.4th 378,
382–383; People v. Selga (2008) 162 Cal.App.4th 113, 118–119.)
        We note, however, that the Legislature amended former section 136.2, subdivision (i),
effective January 1, 2014, to encompass “any crime that requires the defendant to register
pursuant to subdivision (c) of Section 290 ….” (Italics added.) It also states a protective order
“may be issued by the court regardless of whether the defendant is sentenced to the state prison
or a county jail, or whether imposition of a sentence is suspended and the defendant is placed on
probation.” Because the amendment occurred after defendant was sentenced, it did not provide a
valid basis for the court’s June 2013 order.



                                               4.
Section 1201.3, subdivision (a) authorizes issuance of a no-contact order for a period of
up to 10 years when the defendant is convicted of a sexual offense involving a minor.
(People v. Robertson, supra, 208 Cal.App.4th at p. 996.)
          In applying section 1201.3 here, we begin with the issue of notice. Notice must be
given of intent to request a no-contact order, and we find the record provides evidence of
sufficient notice. On April 23, 2013, the following exchange occurred:

                 “THE COURT: And, then, the Court must order that you not visit
          with the—with Jane Doe here while you’re in prison. I think I have to—is
          that—I think I have to order that even for this section, let’s see, 1202.

                 “[DEFENSE COUNSEL]: Stay-away anyway.

                 “[PROSECUTOR]: Your Honor, I prepared a stay-away order.[7]

                 “THE COURT: Oh, so the Court will be ordering that you not have
          contact with or visit with the—oh, here we go, with Jane Doe here.”
Thus, while not a model of clarity, defense counsel was plainly on notice prior to
sentencing in this matter that the prosecutor intended to seek a no-contact order and that
the court believed it had an obligation to issue such an order in this case.8
          However, with regard to subdivision (a) of section 1201.3, the court did not limit
the protective order’s duration. Nor did it state defendant was prohibited from
“harassing, intimidating, or threatening the victim” or victim’s family. Specifically here,
at sentencing,9 the court imposed the mitigated term of two years, imposed various fines

          7The record   on appeal does not include any written request or order prepared by the
People.
          8The court
                   issued an initial protective order that was to be operative during the pendency
of the criminal proceedings. Defendant was “not to harass, strike, threaten, assault, follow, stalk,
molest, destroy or damage personal or real property of, disturb the peace of, keep under
surveillance or block movements of [Jane Doe].” He was advised not to “attempt to or actually
prevent or dissuade any victim or witness from attending a hearing or testifying,” and was to
“[h]ave no personal, electronic, telephonic or written contact with her. No contact with her
through a third party except your attorney of record. And do not come within 100 yards of her.”
          9Prior to
                  the imposition of sentence, defendant unsuccessfully moved to withdraw his
earlier guilty plea.



                                                   5.
and fees, ordered defendant to register as a sex offender pursuant to section 290, then
stated: “Mr. Rounds, Mr. Rounds [defendant was interrupting the court], and then you’re
ordered not to have any contact with Jane Doe.” (Italics added.) The court added: “That
is, he can’t have contact pursuant to 1202.01 [sic], I believe.” (Italics added.)
       The amended abstract of judgment, filed August 5, 2013, does not reflect
imposition of a protective order. In fact, at item No. 8, under “Other orders (specify):”
the only notation reads “Submit to testing pursuant to PC1202.1.” The related minute
order dated June 20, 2013, under “Special Terms Regarding OR/Bail
Release/Sentencing,” provides that defendant “NOT: … Contact … Annoy, harass,
molest, strike, harm, phone, stalk, assault, disturb the peace of … [or] be within 100
yards of the residence/employment of Jane Doe.”
       As pronounced, the court’s order is too broad, as it is unlimited in duration and
exceeds other contact-type limitations plainly set forth in section 1201.3. Therefore, in
its present form, the order is unauthorized. (People v. Scott, supra, 9 Cal.4th at p. 354.)
For these reasons, we will modify the protective order and affirm the judgment in all
other respects.
       Because we have found section 1201.3 provides a statutory basis for the trial
court’s protective order in this case, we do not address defendant’s argument that the
court could not exercise its inherent authority in making such an order.
                                      DISPOSITION
       The court’s no-contact order as orally imposed must be modified. Accordingly,
the trial court is directed to prepare an amended minute order and to issue a second
amended abstract of judgment reflecting that, pursuant to section 1201.3, defendant is
prohibited from harassing, intimidating, or threatening Jane Doe or her family members
for a period of up to 10 years. In all other respects, the judgment is affirmed.




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