Filed 11/24/15 P. v. Perez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C076846

         v.                                                                      (Super. Ct. No. 12F07587)

MANUEL PEREZ,

                   Defendant and Appellant.




         A jury convicted defendant Manuel Perez of committing lewd acts on a child
under the age of 14, committing a forcible lewd act on a child under the age of 14, and
solicitation to commit murder. The trial court sentenced defendant to 75 years to life
in prison plus a consecutive nine years. The trial court also entered a no-contact order




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of unlimited duration as to two victims and one relative without specifying the statutory
authority for the order.
         Defendant now contends the no-contact order was unauthorized. We will vacate
the no-contact order and remand the matter to the trial court to reconsider its decision to
issue postconviction orders and, if orders issue, to provide legal bases for the orders.
We will affirm the judgment in all other respects.
                                       BACKGROUND
         A detailed recitation of the facts underlying defendant’s offenses is unnecessary
to the resolution of the issue on appeal. It is sufficient to summarize that defendant
molested Jane Doe 1, a minor. He also molested Jane Doe 2, an adult at the time of trial,
and threatened that she would disappear if she told anyone. Defendant solicited the
murder of Jane Doe 2 while he was in jail awaiting trial.
         The jury convicted defendant on four counts of committing lewd acts on a child
under the age of 14 (Pen. Code § 288, subd. (a)),1 one count of committing a forcible
lewd act on a child under the age of 14 (§ 288, subd. (b)(1)), and one count of solicitation
to commit murder (§ 653f, subd. (b)). The jury also found the multiple victim allegation
true.
         The trial court sentenced defendant to an aggregate term of 75 years to life, plus a
consecutive nine years. It also responded to the People’s request to enter a no-contact
order “out of an abundance of caution” by entering a no-contact order of unlimited
duration, prohibiting defendant from contacting Jane Doe 1, Jane Doe 1’s mother, or Jane
Doe 2. The trial court did not refer to any particular statutory authority in entering the
order.




1   Undesignated statutory references are to the Penal Code.

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                                         DISCUSSION
       Defendant contends the no-contact order must be reversed because it was issued
without any statutory authority. The People respond that defendant forfeited his
contention by failing to object in the trial court, and in any event, the trial court had
inherent authority to issue the order.
       The validity of the no-contact order is cognizable on appeal despite defendant’s
failure to object at sentencing. “A claim that a sentence is unauthorized . . . may be
raised for the first time on appeal, and is subject to judicial correction whenever the error
comes to the attention of the reviewing court. [Citations.]” (People v. Dotson (1997)
16 Cal.4th 547, 554, fn. 6.) “Although the cases are varied, a sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any circumstance in the
particular case. Appellate courts are willing to intervene in the first instance because
such error is ‘clear and correctable’ independent of any factual issues presented by the
record at sentencing. [Citation.]” (People v. Scott (1994) 9 Cal.4th 331, 354.) Because
defendant here is challenging the jurisdictional validity of the trial court’s decision to
issue an indefinite protective order at sentencing, we will consider his claim on the
merits. (See People v. Ponce (2009) 173 Cal.App.4th 378, 381-382 (Ponce) [since
protective order was not statutorily authorized, failure to raise issue below did not result
in forfeiture].)
       Statutes permit entry of protective orders under certain circumstances in a
criminal case. For example, section 136.2, subdivision (i)(1) provides for a
postconviction no-contact order where a defendant has been convicted of a sex offense
requiring registration. Section 1201.3, subdivision (a) provides for an order prohibiting a
defendant convicted of a sexual offense involving a minor victim from harassing,
intimidating, or threatening the victim or the victim’s family. Each section provides for a
maximum duration of only 10 years, and section 1201.3, subdivision (c), requires notice.



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Here, the trial court did not refer to any particular statutory authority when it entered
its no-contact order, and its order does not fully comply with applicable authority.
       The People argue that no statutory authority was required because the trial court
has the inherent authority to enter no-contact orders, both for Jane Doe’s mother, who
was a witness in this case, and for an unlimited duration as to all three individuals.
The People base their position on victim rights provisions in the California Constitution,
including the right to be “free from intimidation, harassment, and abuse, throughout the
criminal or juvenile justice process,” “[t]o be reasonably protected from the defendant
and persons acting on behalf of the defendant,” and “[t]o have the safety of the victim
and the victim’s family considered in fixing the amount of bail and release conditions
for the defendant.” (Cal. Const., art. I, § 28, subd. (b)(1)-(3).) The People also analogize
to the trial court’s inherent authority to protect jurors once they are discharged.
(Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091.)
       In Ponce, supra, 173 Cal.App.4th 378, the People argued that trial courts,
independent of statute, have inherent authority to issue appropriate protective orders
to protect trial participants. (Ponce, supra, 173 Cal.App.4th at pp. 383-384.) The court
acknowledged that inherent authority exists, but also pointed to the existing body of
statutory law governing restraining orders. (Id. at p. 384.) The court ruled that inherent
power should never be exercised to nullify existing legislation. (Ibid.) “Where the
Legislature authorizes a specific variety of available procedures, the courts should use
them and should normally refrain from exercising their inherent powers to invent
alternatives.” (Ibid.)
       We are persuaded by the reasoning in Ponce, and conclude the trial court in this
case should refrain from exercising its inherent authority to invent unecessary
alternatives. (Ponce, supra, 173 Cal.App.4th at p. 384.)




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                                       DISPOSITION
       The no-contact order imposed at the June 27, 2014, sentencing hearing
is vacated and the matter is remanded to the trial court to reconsider its decision
to issue postconviction orders and, if orders issue, to provide legal bases for the orders.
The judgment is affirmed in all other respects.




                                                       /S/
                                                  Mauro, J.


We concur:



      /S/
Blease, Acting P. J.



     /S/
Duarte, J.




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