Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR0219, Jennifer R.S. Detjen, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, George M. Hendrickson and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Marco Malagon molested an 11-year-old girl in 1999. He fled the state and was not arrested until 2006. Appellant was then charged with one count of lewd acts on a child (Pen. Code, § 288, subd. (a)), but in a plea bargain the prosecutor amended the complaint to include a second count of sexual battery (§ 243.4, subd. (a)), and in return for a stipulated sentence of four years in prison, appellant pled guilty to sexual battery. At the sentencing hearing in 2007, in addition to imposing the agreed four-year prison term, the trial court made the following orders: (1) appellant was to have no contact with the victim pursuant to section 1202.05, and (2) appellant was to be released to the U.S. Bureau of Immigration and Custom’s Enforcement Office (ICE) upon completion of his prison commitment. Appellant appealed, arguing the trial court exceeded its authority in issuing the latter two orders. We agree and shall vacate the disputed orders but otherwise affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
These background facts are taken from the agreed factual basis for the plea and the presentencing probation report.
In 1999, one week after Saint Patrick’s Day, 11-year-old Daisy C. and a friend were coloring at her friend’s apartment. Daisy C. was lying on the floor at the time and appellant began to rub her leg with his foot. Daisy C. quickly moved away. When Daisy C. sat on the sofa, appellant came beside her, caressed her hand, and groped her leg and buttocks. As she jerked to get away, appellant kissed her on the lips. Daisy C. kept trying to avoid appellant, but he continued to touch her. He touched her vaginal area on the outside of her clothing. He put his hand inside her sweatpants and rubbed her buttocks and tried to touch her vaginal area. She pushed his hand away. As she continued to move away from him, he pursued her around the apartment while trying to put his hands inside the front of her sweatpants and telling her she was pretty. Daisy C. later informed authorities that appellant had engaged in similar such conduct with her on two prior occasions.
In May of 1999, Officer Valdez of the City of Madera Police Department attempted to contact appellant at his apartment, but was informed by appellant’s roommate and the apartment manager that appellant was in the process of moving to Mexico. Appellant was not located until his arrest, over seven years later, when he was caught trying to re-enter the United States illegally.
PROCEDURAL HISTORY
On May 31, 2006, an amended criminal complaint was filed in Madera County Superior Court charging appellant with one count of lewd and lascivious acts on a child under 14 (§ 288, subd. (a)). As part of a plea agreement, the prosecutor amended the complaint to include as count two a charge of sexual battery (§ 243.4, subd. (a)), and in return for a stipulated sentence of four years, appellant pled guilty to sexual battery.
On April 23, 2007, appellant was sentenced to four years in state prison. As noted, the trial court also issued a no-contact order pursuant to section 1202.05 and required that appellant must be released to ICE upon completion of his prison commitment. Appellant timely appealed.
DISCUSSION
I. Standard of Review
“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.” (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.)
II. Trial Court Lacked Authority to Issue “No-Contact” Order
In sentencing appellant, the trial court followed the recommendation of the probation report by ordering that appellant was to have “no contact with the child victim under Penal Code section 1202.05.” Appellant contends the trial court had no statutory authority to impose a no-contact order in this case. We agree and will vacate the subject order.
Here, the trial court issued its no-contact order pursuant to section 1202.05, which provides as follows:
“(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, 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.”
The statute requires a no-contact order only when certain specified offenses are committed against a child victim. Because appellant was convicted of sexual battery, which is not among the offenses listed in section 1202.05, that statute does not provide authority for the trial court’s no-contact sentencing order. (See People v. Brun (1989) 212 Cal.App.3d 951, 954 [“It is a long-standing rule of statutory construction that the expression of certain things in a statute necessarily involves the exclusion of other things not expressed”].)
The language of section 1202.05 is comparable to statutes requiring registration for conviction of certain offenses. In registration cases, if the particular conviction is not one of the enumerated offenses for which registration is required, a sentencing court has no discretion to order registration. (People v. Brun, supra, 212 Cal.App.3d at p. 954; People v. Martinez (2004) 116 Cal.App.4th 753, 760-761; In re Derrick B. (2006) 39 Cal.4th 535, 537.) Likewise, in the present case, section 1202.05 cannot be construed to authorize a no-contact order for an offense not listed therein.
There are a number of other statutes which authorize the issuance of no-contact orders in certain situations. However, none are applicable here. For example, a trial court may impose a no-contact order as a condition of probation (§ 1203.1, subd. (i)(2)), but probation was not granted to appellant in this case. A no-contact order may also be made under section 136.2 to protect witnesses and victims during the pendency of a criminal proceeding, but issuance of an order under that section requires a showing of good cause belief that harm or intimidation of a witness or victim has occurred or is reasonably likely to occur (§ 136.2, subd. (a)). No such finding was made in the present case, and in any event such order would be limited to the duration of the pending criminal proceedings. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) In addition to the above provisions, we note that the parole authority may impose a no-contact order on a sex offender as a condition of parole, and when the victim or a family member requests such an order, it must be made. (§ 3053.6, subds. (a)-(c); and see § 3053.2, subd. (a).) Of course, these parole provisions set forth a ready means by which victims such as Daisy C. may obtain the benefit of a protective order from the parole authority. However, we are not aware of any statute, and none has been brought to our attention, that would provide a basis for the trial court to issue the no-contact order in the present case. We conclude there was no statutory basis for the trial court’s order.
Further legal recourse would also be available. For example, if appellant ever attempted to contact the victim, a remedy is provided under Code of Civil Procedure section 527.6, subdivision (a), in which the court may issue orders to protect against any threats or harassment.
Other statutes permitting no-contact orders would include section 646.9 [regarding offense of “stalking”] and Family Code section 6320 [regarding domestic violence]. Neither of these sections apply here.
Respondent appears to concede the trial court lacked statutory authority to issue the no-contact order, but argues that the court had inherent discretionary power to do so as a means of protecting victims of sex crimes. Respondent provides no support for this proposition. As explained below, we believe respondent’s argument must be rejected in the present case.
Since the no-contact order is a form of a penalty or punishment imposed for the commission of a crime, it would have to be authorized by statute. The reason for this is fundamental. Although the imposition of sentence and the exercise of sentencing discretion are inherently judicial functions (People v. Navarro (1972) 7 Cal.3d 248, 258), the Legislature possesses the exclusive power to define criminal offenses and prescribe penalties or punishments (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3). Section 12 states as follows regarding the court’s sentencing powers: “The several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed.” Thus, in imposing sentence on a defendant, a court’s discretion must operate within the bounds of statutory authority. A sentencing court has no discretion to deviate from constitutionally permissible punishment prescribed by statute. (People v. Lara (1984) 155 Cal.App.3d 570, 574.) Accordingly, we conclude the trial court’s no-contact order constituted an unauthorized sentence and must be stricken.
II. Trial Court Lacked Authority to Order Postcommitment Release to ICE
The trial court directed that upon completion of appellant’s incarceration, he was “to be released to ICE .…” A parole term was attached to appellant’s prison commitment, such that any release from prison would be subject to parole. Appellant contends the order specifying the terms of his release was in excess of the trial court’s sentencing authority. We agree.
Generally speaking, once an adult felon is committed to the California Department of Corrections and Rehabilitation to serve a state prison sentence, the trial court’s supervisory power over conditions of probation and rehabilitation ceases (see, e.g., Cano v. Superior Court (1999) 72 Cal.App.4th 1310, 1314; In re Owen E. (1979) 23 Cal.3d 398, 404-405; In re Allen N. (2000) 84 Cal.App.4th 513, 515-516; People v. Lewis (1992) 7 Cal.App.4th 1949, 1954; People v. Banks (1959) 53 Cal.2d 370, 384), and responsibility and discretion regarding terms and conditions of the felon’s release are vested in the parole authority known as the “Board of Parole Hearings.” (§§ 3053, subd. (a), 5075, 5077.)
Commencing in July 2005, the Department of Corrections was designated as the Department of Corrections and Rehabilitation, Division of Adult Operations. (§ 5000.)
Here, the trial court exceeded the scope of its sentencing authority when it determined the terms of appellant’s postcommitment parole, since such matters come under the jurisdiction of the Board of Parole Hearings. We will therefore vacate the trial court’s order.
Regarding the immigration status of state prison inmates, we note that statutory procedures are in place for the prompt identification of all inmates who are undocumented aliens subject to deportation. (People v. Espinoza (2003) 107 Cal.App.4th 1069, 1075, fn. 5; §§ 5025-5028.) A trial court may reasonably assume that such procedures will be complied with by the Department of Corrections and Rehabilitation, and that ICE will thereupon take necessary steps to enforce federal immigration law. (See Evid. Code, § 664 [presumption that official duties are regularly performed]; People v. Espinoza, supra, at p. 1075, fn. 5.) Of course, all courts in this state are required to cooperate with ICE agents and to identify and place a deportation hold on any defendant convicted of a felony who is determined to be an undocumented alien subject to deportation. (Gov. Code, § 68109.) Although the trial court could have placed a deportation hold on appellant, there is no evidence it did so. Once appellant was committed to state prison, such matters were effectively out of the trial court’s hands, and the Department of Corrections and Rehabilitation acquired the role of providing further cooperation with ICE, including the terms of appellant’s release. (See §§ 5025, 5026, 5028.)
In conclusion, although the trial court’s goals in issuing the challenged sentencing orders were clearly laudable, it nevertheless exceeded its sentencing authority for the reasons explained herein.
DISPOSITION
The sentencing orders that appellant have no contact with the victim and that he be released to ICE following his prison commitment are vacated. In all other respects the judgment is affirmed.
WE CONCUR: Harris, Acting P.J. Wiseman, J.