Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA044579, Dorothy L. Shubin, Judge. Affirmed as modified.
John F. Schuck, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robin Davis and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Pursuant to a negotiated agreement Daniel Havard pleaded no contest to a number of serious felony charges arising from a home invasion robbery and sexual assaults on one of the robbery victims. On appeal Havard contends only the parole revocation fine imposed as part of his sentence (Pen. Code, § 1202.45) and a no-contact order should be stricken. We agree and affirm the judgment as modified.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At 1:00 a.m. on December 14, 1994 Daniel Havard, codefendant Anthony Redix and two confederates entered the home of Sylvia H. and her family. The men demanded money and valuables at gunpoint and then sexually assaulted Sylvia H.
On July 31, 2008, appearing in propria persona, Havard entered a plea of no contest to two counts of home invasion robbery (§ 211) (counts 1 and 2), two counts of forcible rape in concert (§ 264.1) (counts 4 and 7), two counts of sodomy in concert with force (§ 286, subd. (d)) (counts 5 and 10), one count of oral copulation in concert with force (§ 288a, subd. (d)) (count 6), one count of rape by a foreign object in concert (§§ 289, subd. (a), 264.1) (count 8) and one count of rape by a foreign object (§ 289) (count 9). Havard admitted firearm-use enhancements as alleged in count 1 (§ 12022.5, subd. (a)) and counts 2, 4, 5, 6 and 7 (§ 12022.3, subd. (a)).
There was no count 3 in the amended information.
On August 15, 2008, pursuant to the negotiated agreement, Havard was sentenced to an aggregate state prison term of 40 years. The trial court ordered Havard to pay a $20 security fee as to each count and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45. Havard was awarded 777 days of presentence credit (677 actual days and 100 days of conduct credit). In accordance with the plea agreement, any remaining counts and special allegations were dismissed on the prosecutor’s motion.
Silvia H.’s husband addressed Havard at the sentencing hearing, saying his horrific crimes had changed his family forever. Apparently prompted by a letter Havard had written Sylvia H. and the family, the husband also expressed some sympathy for Havard and asked the court if he could speak to him privately after the hearing. Havard indicated he was not comfortable with such a meeting. After inquiring of the prosecutor, the trial court then ordered Havard to have no future contact with the victims (Silvia H. and her family).
The abstract of judgment requires Havard “to stay away from all victims, their residence or place of employment.”
DISCUSSION
1. The $200 Parole Revocation Fine Must Be Stricken
The crimes in this case were committed on December 14, 1994. Section 1202.45, which requires imposition of a parole revocation fine, became effective on August 3, 1995. (Stats. 1995, ch. 313, § 6.) Havard contends and the People acknowledge, the $200 parole revocation fine must be stricken because application of section 1202.45 to a crime committed before the section’s effective date would violate ex post facto principles. (People v. Callejas (2000) 85 Cal.App.4th 667, 668; see Johnson v. United States (2000) 529 U.S. 694 [120 S.Ct. 1795, 146 L.Ed.2d 727].)
2. The No-Contact Order Must Be Stricken
The People concede there was no statutory authority for the imposition of the no-contact order. They nonetheless argue trial courts have inherent authority to ensure public safety and to protect victims of sexual offenses by issuing sentencing orders reasonably related to achieving these objectives. According to the People, the court in this case was relying on its inherent authority in issuing the no-contact order to safeguard Silvia H. and her family.
Several statutes authorize no-contact orders. (See, e.g., § 136.2 [no-contact order to prevent intimidation or dissuasion of victim or witness during criminal proceedings]; § 646.9, subd. (k) [restraining order issued to protect stalking victims]; § 1203.1, subd. (i)(2) [no-contact order as a probation condition].) None is applicable in this case.
A similar argument was recently made and rejected in People v. Ponce (2009) 173 Cal.App.4th 378, in which our colleagues in Division Six of this court concluded, because there is a body of statutory law regulating restraining orders, “courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.” (Id. at p. 384.) “Moreover, even where a court has inherent authority over an area where the Legislature has not acted, this does not authorize issuing orders against defendants by fiat or without any valid showing to justify the need for the order.” (Ibid.)
Nothing in the record suggests, after being charged, Havard had attempted to dissuade Silvia H. or her family members from testifying or proceeding with the prosecution or otherwise threatened them with future harm. (See People v. Stone (2004) 123 Cal.App.4th 153, 160-161 [a protective order should not be issued absent a showing of “a threat, or likely threat to criminal proceedings or participation in them”].) The People assert “the court’s order protected [the family] from further attempts at contact by [Havard], who had previously contacted them by letter.” However, there is no indication Havard’s letter contained any threatening or offensive language or had prompted Silvia H. or her family to request a no-contact order. Indeed, after receiving the letter, the husband expressed sympathy for Havard and sought to speak with him directly following the sentencing hearing. It was Havard who declined to have any contact.
DISPOSITION
The judgment is modified by striking the parole revocation fine under section 1202.45 and the no-contact order. As so modified, the judgment is affirmed.
We concur: WOODS, J., ZELON, J.