Filed 8/22/16 P. v. Shippen 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                                                NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                             (Sutter)
                                                                ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079154

         v.                                                                     (Super. Ct. No. CRF130070)

CAMERON CADE SHIPPEN,

                   Defendant and Appellant.


         Pursuant to a plea agreement, defendant Cameron Cade Shippen admitted a
violation of Penal Code section 288, subdivision (a)1, and an allegation of substantial
sexual conduct (§ 1203.066, subd. (a)(8)) in exchange for a maximum prison term of
eight years. The trial court sentenced defendant to serve six years in state prison in
addition to various fines and fees. At the same time, the trial court issued an order
prohibiting contact with the victim under section 1202.05.



1        Undesignated statutory references are to the Penal Code.


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       On appeal, defendant does not challenge his conviction or prison sentence.
Instead, he argues the trial court’s no-contact order was not authorized under section
1202.05 -- a statute that only addresses visitation. He further argues he did not receive
proper notice the trial court was considering imposition of a no-contact order.
Consequently, defendant urges us to reverse the judgment and remand the matter to allow
him to withdraw his plea. He also contends, and the People concede, he is entitled to one
additional day of presentence custody credit.
       We conclude the trial court erred in ordering defendant to have no contact with the
victim under section 1202.05, which provides a mandatory bar on visitation. We reject
the People’s suggestion that we modify the no-contact order to state it was imposed under
section 136.2, subdivision (i)(1) (section 136.2(i)(1)). Section 136.2(i)(1) requires the
court to exercise its discretion in imposing a no-contact order by considering “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.” We reverse to allow the trial court
to exercise its discretion under section 136.2(i)(1).
       Reversal of the no-contact order, however, does not allow defendant to withdraw
his plea. A no-contact order under section 136.2(i)(1) is not punitive in nature and its
imposition does not violate the terms of defendant’s negotiated plea.
       On remand, the trial court shall also award defendant one extra day of presentence
custody credit to correct an error in the judgment.
                       FACTUAL AND PROCEDURAL HISTORY
       An information filed March 5, 2014, charged defendant with committing a lewd
and lascivious act with a child under 14. (§ 288, subd. (a).) The information alleged the
act involved substantial sexual conduct (§ 1203.066, subd. (a)(8)) and the personal
infliction of great bodily injury (§ 12022.7, subd. (a)).




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          On October 17, 2014, defendant signed a plea agreement to plead no contest to
violating section 288, subdivision (a), and to admit substantial sexual conduct, with the
great bodily injury allegation to be dismissed. The agreement stated the following factual
basis: “In Sutter County, California . . . ; between 2/1/12 and 3/14/12, defendant . . .
willfully and lewdly committed a lewd or lascivious act upon or with the body or any part
or member thereof, of a child under the age of 14, with the intent of arousing, appealing
to or gratifying the lust, passions or sexual desires of the said defendant or said child, to
wit, defendant had sexual intercourse with victim L.R. . . . which resulted in victim
getting pregnant with his child. At the time of the incident, [d]efendant was 33 [years]
old and victim L.R. was 13 [years] old. Victim gave birth to defendant’s child on
November 26, 2012. [¶] The evidence will further show that the defendant had
substantial sexual conduct (sexual intercourse) with the victim who was 13 years old at
the time.” On the same date, defendant entered his plea in open court. The trial court
accepted the plea and referred the matter to the probation department for a sentencing
report.
          At a hearing on December 29, 2014, the trial court continued the matter for
sentencing. Defendant’s attorney of record was not present, but a deputy public defender
appeared specially for him. Noting the sentencing report had not mentioned a required
fine, the court informed the parties: “So I believe there should be a fine included as well
as mandatory stay-away orders and also testing for the AIDS antibodies. So I’ll just
bring that to the attention of the Probation Department.” (Italics added.) The record does
not show any revised report was submitted.
          Before sentencing took place on March 30, 2015, the trial court read and
considered written communications from defendant, defendant’s parents, the victim’s
foster parents, and the victim’s therapist. The court also read and considered a




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communication by the victim, stating she wanted to reunite with defendant and raise their
children together as a family.
       In defendant’s first letter, he acknowledged “poor judgment,” but claimed he
“took care of [the victim and her child] both financially and emotionally.”
       In defendant’s second letter, he stated that “the children” were in Washoe County,
Nevada, in a foster home, and if granted probation he would be able to see them only on
supervised visits. He vowed he would not see or interact with the victim in any way.
Finally, he asked the trial court to consider the victim’s letter and her thoughts and
feelings about the situation.
       Defendant’s parents asked the trial court to allow defendant to be a part of their
lives again and to let him start meeting his responsibilities to the victim’s family and his
own family.
       The victim’s foster parents stated they were also the foster parents of her two
children, two-year-old D. and nine-month-old N. According to the foster parents,
defendant abandoned the victim during her pregnancy and was not present for D.’s birth,
but later ran away with the victim to Nevada, where they were caught committing a crime
to get something to eat. About a month ago the foster parents discovered the victim had
spoken on the phone with defendant two or three times a week for the last three months;
they believed he was using these calls to influence and manipulate the victim.
       The victim’s therapist asserted the victim still hoped for a continued relationship
with defendant -- “[a] hope [defendant] has encouraged by continuing to contact [the
victim] from jail.” In the therapist’s opinion, it was “critical to [the victim’s] emotional
development at this stage” to mature without any influence from defendant.
       At the hearing, defendant’s counsel argued for the lower prison term. Counsel
asserted: The relationship between defendant and the victim had lasted almost three
years and produced two children. The victim and defendant had had frequent and



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continuing contact by letter, as permitted by Child Protective Services in Nevada. The
victim, who was “very mature for her age,” had also independently contacted defendant’s
parents. Even though she had been told the relationship with defendant was
“inappropriate socially and legally,” her letter of November 2014 showed she, as well as
defendant, wished to continue the relationship and to “preserve the family unit” they had
created. It was reasonable to assume once she reached 18, “we’ll have a family unit
again.”
       Defendant’s mother stated even though what happened was wrong, “we have two
beautiful grandchildren now out of it.” The victim was far more mature than people
thought; she knew what she wanted and how she felt. Defendant’s “family is important
to him.” Although he had not intended for this to happen, “he just wants to be allowed to
be with his children, and they need him too.”
       Seeking the upper term sentence, the prosecutor argued: After committing
a felony in 2008 and a misdemeanor in 2009, defendant had sex with the 13-year-old
victim in 2012, then abandoned her when she became pregnant. While law enforcement
was still looking for defendant, he met up with the victim in Nevada and made her
pregnant again. He did not take any precautions against pregnancy or sexually
transmitted diseases. Since the victim and her children entered the Nevada foster
care system, defendant has continued to influence and manipulate her with “secretive
phone calls,” making it difficult for her to imagine a life without him. He told the
probation officer he would wait until the victim was of an appropriate age before
contacting her again, but instead he had been communicating with her through phone
calls from jail.
       Defense counsel asserted there was no evidence of phone calls between defendant
and the victim.




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       The trial court told defendant: “I really don’t care very much what [the victim]
thinks. I don’t really care very much . . . what her therapist thinks or what her foster
parents think. And I’m not terribly interested in what . . . your parents think or what you
think. The law is pretty clear. Men who are over 30 are not supposed to be having sex
with children . . . 12 and 13 years old. And there’s lots of reasons for that. And it makes
no sense for me to consider you in a different light from somebody else who had sex with
a 12 or 13 year old because you happen to father a child as a result of that. It doesn’t
make it better for you. I don’t know that it makes it worse for you except that I heard
your parents say you didn’t intend[] for this to happen. Well, [the prosecutor] brings up a
good point, there are ways to prevent pregnancy. And as far as I know those ways were
not used.”
       Quoting from one of defendant’s letters, the trial court stated: “[Y]ou say, ‘ “I am
being punished for being a dad and creating a child, a beautiful baby boy.” ’ That’s not
what you’re being punished for . . . . You’re being punished, how many times do I need
to say it, for having sex with a 12 and 13 year old child which is illegal. It’s not illegal to
be a dad, it’s not illegal to create a child.”
       The trial court sentenced defendant to serve six years in state prison. The trial
court also imposed a no-contact order of unlimited duration.
                                         DISCUSSION
                                                 I
                                       No Contact Order
       Defendant contends his order to have no contact with the victim was erroneously
imposed under section 1202.05, a statute that prohibits visitation with victims of certain
sex offenses. The People concede section 1202.05 does not provide for no-contact
orders. However, the People argue the issue has not been preserved for appeal. The
People further argue the no-contact order was authorized by section 136.2(i)(1).



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Accordingly, the People urge us to modify the no-contact order to state it was made under
section 136.2(i)(1). We reverse and remand to allow the trial court to exercise its
discretion in considering the factors articulated in section 136.2(i)(1) for the issuance of a
no-contact order.
                                              A.
                        The Order Imposed under Section 1202.05
       During judgment and sentencing, the trial court stated: “And I’m going to order
. . . you have no contact with the victim during the time that you are in custody. Parole
can figure out whether they want to make that a condition once you are released.”
       The prosecutor responded by conflating contact and visitation: “[A]s to the order
prohibiting contact, Your Honor, . . . section 1202.05, that’s the Court shall prohibit all
visitations.” (Italics added.)
       The trial court replied: “The Court is making that order under 1202.05.”
However, the trial court did not state whether the order was for no visitation, no contact,
or both.
       Defense counsel did not object.
       An attachment to the sentencing minute order states: “[Defendant] is not to have
any contact with the victim while he is in custody pursuant to 1202.05 of the Penal
Code.”
       Subsequently, the trial court entered an “Order Prohibiting Contact (. . . Section
1202.05)” that states: “Pursuant to . . . Section 1202.05, the Court hereby prohibits any
contact between the victim of this crime . . . and the defendant . . . .”
                                              B.
                                        Cognizability
       The People contend the issue has not been preserved for appeal because
defendant’s trial attorney did not object to the no-contact order. We reject the contention.



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         In People v. Kunitz (2004) 122 Cal.App.4th 652, this court rejected a similar
assertion of forfeiture. Kunitz involved a challenge to a statutorily unauthorized
restitution fine that may be imposed only on the trial court’s consideration of a
defendant’s individual culpability. (Id. at p. 657.) This court considered the merits of the
defendant’s challenge to the restitution fine even though no objection had first been made
in the trial court. (Ibid.) The issue was resolved on the merits because no prior objection
was needed to preserve an argument that the trial court’s restitution order was statutorily
unauthorized. (Ibid.; accord People v. Chambers (1998) 65 Cal.App.4th 819, 823.) The
same rationale applies here. Defendant in this case did not need to object in the trial
court in order to preserve an argument that the trial court exceeded its statutory authority.
Consequently, we consider defendant’s argument that the no-contact order was not
authorized by the statute relied upon by the trial court.
                                              C.

                           No-Visitation and No-Contact Orders
         As both defendant and the People note, section 1202.05 does not authorize a no-
contact order. Section 1202.05 provides in pertinent part: “Whenever a person is
sentenced to the state prison on or after January 1, 1993, for violating Section 288 . . . ,
and the victim of one or more of those offenses is a child under the age of 18 years, the
court shall prohibit all visitation between the defendant and the child victim.” (Italics
added.) However, a no-visitation order is different than a no-contact order. (See People
v. Scott (2012) 203 Cal.App.4th 1303, 1323-1324 [explaining an order prohibiting
visitation does not also prohibit contact with the victim].) Moreover, section 1202.05
does not apply once a victim reaches age 18, as the victim in this case will do before the
end of defendant’s sentence. (Id. at pp. 1313-1323.) Although a no-visitation order was
mandatory in this case, section 1202.05 did not provide any authority for a no-contact
order.


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       Our conclusion that section 1202.05 did not provide a statutory basis for the trial
court’s no-contact order requires us to consider the proper disposition. Defendant
contends we must reverse and remand in order to allow him to withdraw his plea. The
People argue we should modify the order to cite section 136.2(i)(1) and affirm the
judgment as modified. As we shall explain, neither disposition is correct.
                                               D.
               Whether Defendant Must Be Allowed to Withdraw His Plea
       Defendant contends the no-contact order violated his plea bargain because the trial
court did not advise him a no-contact order could be a consequence of his plea, and
because the order increased his punishment. On both grounds, he claims to be entitled to
withdraw his plea. We disagree.
       A defendant is entitled to be advised of the direct consequences of his or her plea,
but not of the collateral consequences. (People v. Villalobos (2012) 54 Cal.4th 177, 181-
182 (Villalobos); People v. Moore (1998) 69 Cal.App.4th 626, 630.) A consequence of a
plea is considered “direct” if it is “penal” in nature; that is, if it definitely, immediately,
and largely automatically affects the range of the defendant’s punishment. (Moore, at p.
630.) A consequence is considered “collateral” if it does not inexorably follow from the
defendant’s conviction of the offense involved in the plea. (Ibid.) Here, the no-contact
order does not affect the length or the character of defendant’s punishment; nor does it
inexorably follow from the fact of his conviction. Thus, it is a collateral consequence of
defendant’s plea, as to which the trial court did not need to advise him.
       The no-contact order is also not a “punishment.” It is not death, imprisonment, a
fine, removal from office, or disqualification from holding office. (§ 15.) It does not
increase defendant’s sentence, impose any financial burden on him or her, deprive him or
her of property or of any kind of license, require him or her to register, or subject him or
her to administrative discipline. (See Villalobos, supra, 54 Cal.4th at pp. 182-186;



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People v. Vasquez (2001) 25 Cal.4th 1225, 1230-1231; see generally Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Punishment, §§ 180-227, pp. 308-370.) Defendant
cites no authority holding a no-contact order constitutes punishment as the term is used in
criminal law. He relies on People v. Olea (1997) 59 Cal.App.4th 1289, but that case is
distinguishable because the defendant there was not informed when he entered his plea
that he might be required to register as a sex offender, which is clearly a form of
punishment. (Id. at pp. 1296-1298.)
                                              E.
                    Whether We Should Modify the No-Contact Order
        The People urge us to modify the no-contact order to substitute section 136.2(i)(1)
for the wrongly cited section 1202.05. As the People correctly point out, section
136.2(i)(1) does provide statutory authority for the sort of no-contact order issued in this
case.
        Section 136.2(i)(1) provides in pertinent part: “In all cases in which a criminal
defendant has been convicted of . . . any crime that requires the defendant to register
pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall
consider issuing an order restraining the defendant from any contact with the victim.
The order may be valid for up to 10 years, as determined by the court. This protective
order may be issued by the court regardless of whether the defendant is sentenced to
the state prison or a county jail or subject to mandatory supervision, or whether
imposition of sentence is suspended and the defendant is placed on probation. It is
the intent of the Legislature in enacting this subdivision that the duration of any
restraining order issued by the court be 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.”




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       Defendant is potentially subject to a no-contact order under section 136.2(i)(1)
because he was convicted of violating section 288(a) and must register pursuant to
section 290, subdivision (c). And under section 136.2(i)(1), the no-contact order may
have a duration of 10 years.
       The fact defendant is potentially subject to a no-contact order under section
136.2(i)(1) does not mean he is automatically subject to such an order. Unlike the
mandatory no-visitation provision of section 1202.05, the application of section
136.2(i)(1) is discretionary because it requires that “the court, at the time of sentencing,
shall consider issuing an order restraining the defendant from any contact with the
victim.” (Italics added.) Moreover, if the trial court decides to impose a no-contact
order, it must select a duration for a period not to exceed 10 years “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.” (§ 136.2(i)(1).)
       The imposition of a no-contact order under section 136.2(i)(1) requires the trial
court to exercise its discretion both as to applicability and duration for any order that
cannot be imputed from the reliance on a mandatory visitation statute. “Defendants are
entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the
sentencing court,’ and a court that is unaware of its discretionary authority cannot
exercise its informed discretion. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
[¶] Remand for resentencing is not required, however, if the record demonstrates the trial
court was aware of its sentencing discretion. (People v. Belmontes, supra, 34 Cal.3d at p.
348, fn. 8; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)” (People v. Brown
(2007) 147 Cal.App.4th 1213, 1228-1229.)
       Here, the record does not indicate the trial court was aware of section 136.2(i)(1)
or any of the considerations the statute requires the court to take into account in
determining the duration of a no-contact order. Notably, the no-contact order is



                                                 11
unrestricted as to time even though section 136.2(i)(1) limits the order to 10 years. On
remand, the trial court shall exercise its discretion in determining whether to issue a no-
contact order under section 136.2(i)(1). If the trial court orders no contact under section
136.2(i)(1), it shall select a time duration no longer than 10 years.2
                                              II
                                  Presentence Custody Credit
       Defendant contends he is entitled to an additional day of presentence custody
credit. The Attorney General properly concedes the point.
       Defendant was credited with a total of 607 days of presentence custody credit (528
actual days and 79 conduct days). He was arrested on October 18, 2013, and sentenced
on March 30, 2015, after remaining continuously in custody since his arrest. As the
parties agree, counting the first and last days of custody equals 529 actual days, not 528.
(See People v. Morgain (2009) 177 Cal.App.4th 454, 469; People v. Smith (1989)
211 Cal.App.3d 523, 526.) Therefore, defendant is entitled to a total of 608 days of
presentence custody credit. We direct the trial court to prepare an amended abstract of
judgment reflecting that total.
                                       DISPOSITION
       Defendant’s conviction and sentence are affirmed. The no-contact order imposed
under Penal Code section 1202.05 is reversed and the matter is remanded for the trial
court to exercise its discretion under Penal Code section 136.2, subdivision (i)(1). At the
same time, the trial court shall award defendant one additional day of presentence




2       Our conclusion that this case must be reversed and remanded for the trial court to
exercise its discretion under section 136.2(i)(1) obviates the need to consider defendant’s
contention he did not receive proper notice of the possibility of a no-contact order before
it was imposed. On remand, he shall be afforded the “meaningful opportunity to object”
to which he lays claim in his briefing.


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custody credit. The trial court is directed to prepare an amended abstract of judgment and
new no-contact order, if any, and forward them to the Department of Corrections and
Rehabilitation.



                                                           /s/
                                                HOCH, J.



We concur:



         /s/
HULL, Acting P. J.



        /s/
RENNER, J.




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