Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF2041. Joseph Kalashian, Judge.
Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Kathy McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
Ardaiz, P.J.
INTRODUCTION
Appellant Jason Langdon appeals from the denial of his suppression motion in a case involving multiple counts of forgery and identity theft. On appeal, he contends that this court should construe his notice of appeal to include two alleged sentencing errors, specifically an order requiring that he have no further contact with the victims and an order of victim restitution to Stacey Velasquez in the amount of $229. We will remand to strike the no-contact order and the restitution award to Stacey Velasquez, but affirm the judgment and sentence in all other respects.
STATEMENT OF THE CASE
On November 4, 2008, the Tulare County District Attorney’s Office filed a second amended felony complaint charging appellant with 31 felonies and one misdemeanor relating to forgery and identity theft.
On November 7, 2008, the trial court heard and denied appellant’s motion to suppress pursuant to Penal Code section 1538.5. Thereafter, appellant pled no contest to: counterfeiting apparatus (§ 480; count 1 of the felony complaint); forgery (§ 475, subd. (a); count 2); multiple identifying information theft (§ 530.5, subd. (c)(3); count 5); theft of access cards or account information (§ 484e, subd. (b); count 6); forgery of a driver’s license (§ 470a; count 9); and commercial burglary (§ 459; count 29) in exchange for a prison term of five years.
All further section citations are to the Penal Code, unless otherwise stated.
On December 16, 2008, the court sentenced appellant to five years in prison, i.e., the mid-term of three years on count 1, plus consecutive eight-month terms on counts 2, 5, and 6, and concurrent two-year terms on counts 9 and 29. The trial court also imposed various restitution fines and fees, including $229 in restitution to Stacey Velasquez, with annual interest at 10 percent (the “restitution order”). Finally, the court ordered appellant to have no contact with the victims in the case and not to enter a Staples store (the “no contact order”).
On December 18, 2008, appellant filed a notice of appeal from the denial of his suppression motion.
FACTS
On May 24, 2008, City of Visalia police officers stopped a vehicle that committed several traffic infractions. Appellant, who was the driver of the vehicle, identified himself but said that he did not have his driver’s license with him. Appellant was ordered to exit the car by one of the officers, and when he did so, the officer noticed a wallet in appellant’s back right shorts pocket.
The officer asked appellant if he had any identification inside the wallet, and appellant again answered that his driver’s license was at home. The officer then removed appellant’s wallet. Inside, the officer found a “fraudulent-looking California ID card in the name of Bui Lam Swanson, and it had [appellant’s] picture there.” When the officer removed the fraudulent ID card, he noticed appellant’s ID card was directly behind the fraudulent ID. Appellant explained that he had printed the ID card as a joke and had forgotten that it was in his wallet. A check of appellant’s ID card revealed that his driver’s license had been suspended and there was a warrant for his arrest. Appellant was placed under arrest.
The officer also found checks and credit cards in other people’s names inside appellant’s wallet. These also appeared to be fraudulent. The officer asked appellant if he had any more illegal items in his house. Appellant replied that he did not and offered to allow them to search his house. When the officers took appellant to his house, appellant signed a form consenting to a residential search.
Because appellant said that he did not have his house keys with him, the officers knocked on the front door. Co-defendant Hope Hurtado answered. The officers explained that appellant was under arrest and had consented to a search, so she let the officers in.
The search of the house and backyard uncovered several trash bags with identity theft, paperwork, mail, printed IDs, fraudulent IDs with appellant’s picture on them, and printed checks. The police also found a small amount of methamphetamine and several glass smoking pipes.
DISCUSSION
A. No-Contact Order
Appellant contends that this court should construe his notice of appeal to include the issue of the no-contact order. He contends that the no-contact order was unauthorized and should be stricken. The People agree.
At sentencing, the trial court ordered appellant to “have no further contact with the victims” in this case. This means “in person, in writing, by telephone, or by Internet.…” Appellant also was ordered not to enter a Staples store. The trial court did not cite any statutory authority for the order. Appellant did not object to the no-contact order. However, failure to object to an unauthorized sentence does not constitute a forfeiture of a claim on appeal. (People v. Smith (2001) 24 Cal.4th 849, 851.) “In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (Id. at p. 852.)
Here, the no-contact order was unauthorized because it was of unlimited duration and was not a term of probation. (See, e.g., People v. Stone (2004) 123 Cal.App.4th 153, 158-159 [holding that a trial court has no authority to impose a three-year no-contact order under section 136.2, which protects victims and witnesses during the pendency of a criminal proceeding].) Thus, we will remand to the trial court to strike the no-contact order.
B. Restitution Order
Appellant also contends that this court should construe his notice of appeal to include the issue of victim restitution in the amount of $229 to Stacey Velasquez. He contends that the restitution order was unauthorized because Ms. Velasquez was not named as a victim in the complaint and there was no evidence that Stacey Velasquez is a victim of his crimes.
Here, the probation report states that Stacey Velasquez responded to a mass mailing to the victims of the appellant’s crimes. According to the probation report, she contacted “Probation on behalf of Mario Velasquez, Justin Velasquez, and Senior Independence. She reported the defendant had checks from accounts that have been closed for five years. She indicated that her title to her trailer, pink slips to her vehicles, marriage certificate, and son’s birth certificate were stolen. She stated it cost her $229 to replace the pink slips to her vehicles and title to her trailer.”
Before entering his no plea contest, appellant was informed and stated that he understood that “even though counts are going to be dismissed at the time of sentencing or even counts that you’re going to be pleading to today, the Court can still consider those for purposes of restitution.” Specifically, the felony complaint alleges that appellant forged a driver’s license in the name of M. Velasquez (count 16), unlawfully used the personal identifying information of E. Velasquez (count 25), unlawfully used the personal identifying information of M. Velasquez (count 26), and unlawfully used the personal identifying information of J. Velasquez. (count 27).
At sentencing, appellant was informed that he would have to pay $229 to Ms. Velasquez. He made no objection. The People contend that appellant’s failure to object constitutes a forfeiture of the claim of error. However, there is no forfeiture if the restitution order is unauthorized. (People v. Smith, supra, 24 Cal.4th at p. 851). “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354 [holding that the forfeiture rule does not apply to an unauthorized sentence].)
Here, the trial court ordered appellant to pay $229 to Stacey Velasquez because she had to spend $229 to replace the pink slips to her vehicles and title to her trailer. However, the felony complaint did not allege that appellant had stolen these pink slips and title papers. Although appellant agreed that dismissed counts could be used as a basis for restitution, none of the dismissed counts names Stacey Velasquez as a victim or references pink slips and title of vehicles. Thus, appellant’s crimes were not the cause of Stacey Velasquez’s loss of $229. Furthermore, “section 1202.4 contains no provision that permits an award of restitution for losses caused by uncharged crimes when the defendant is sentenced to state prison.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1248.) Thus, there are no circumstances under which the trial court could have ordered the restitution to Stacey Velasquez. Therefore, the restitution order was unauthorized.
The People contend that, even if the restitution order was unauthorized, defendant was estopped to challenge the restitution order because he received the benefit of his plea bargain. (People v. Hester (2000) 22 Cal.4th 290, 295.) While this argument has some appeal, it is not applicable in this case because appellant only agreed to pay restitution to the victims of his crimes, including to the victims of the dismissed counts. As discussed previously, Stacey Velasquez is neither a named victim nor a victim who suffered economic losses from a charged crime. Thus, defendant is not estopped from raising this argument on appeal.
DISPOSITION
The issue of pre-sentence credits was deemed raised and is rejected for the reasons set forth in People v. Jose Luis Rodriguez (Mar. 1, 2010, F057533) __Cal.App.4th __.
The case is remanded to the superior court to strike the no-contact order and restitution order to Stacey Velasquez. As amended, the judgment and sentence is affirmed. The amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: Hill, J., Cornell, J.