Opinion
F060796 Super. Ct. No. F07909046
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. CHARLES EARL ROSS, JR., Defendant and Appellant.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Charles Earl Ross, Jr., pled no contest to stalking his estranged wife. (Pen. Code, § 646.9, subd. (a).) The trial court placed appellant on formal probation for three years. The court also issued a 10-year restraining order pursuant to section 646.9, subdivision (k), which was subsequently lifted at the victim's request. Following several violations of probation, the trial court revoked appellant's probation and imposed a 16-month prison sentence. The court also issued another 10-year restraining order. Appellant made no objection to the issuance of or the term of the order. Appellant's sole contention on appeal is that the trial court abused its discretion and exceeded its authority in issuing the 10-year restraining order at sentencing pursuant to section 273.5, subdivision (i). Assuming this contention is properly before us despite appellant's failure to object below, we find the trial court had the statutory authority to issue the 10-year restraining order at sentencing, and will modify the judgment to reflect that the restraining order was issued pursuant to section 646.9, subdivision (k), rather than section 273.5, subdivision (i). In all other respects, the judgment shall be affirmed.
All statutory references are to the Penal Code unless otherwise specified.
DISCUSSION
We have omitted a summary of the underlying facts as unnecessary to our resolution of the purely legal issues presented in this appeal.
A person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of his or her safety or that of an immediate family member is guilty of stalking. (§ 646.9, subd. (a).) Pursuant to section 646.9, subdivision (k)(1), a "sentencing court ... shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court." Subdivision (k) further provides that "It is the intent of the Legislature that the length of any restraining order 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." (Ibid.)
Appellant contends that the trial court erred at sentencing by issuing the 10-year restraining order pursuant to section 273.5, subdivision (i), because that code section is inapplicable to the crime of stalking and therefore the restraining order constitutes an unauthorized sentence. While we agree with the premise of appellant's contention, it appears neither the trial court nor the sentencing minute order specified that the 10-year restraining order was being issued pursuant to section 273.5, subdivision (i). Rather, it appears the prosecutor misspoke and mistakenly referred to section 273.5, subdivision (i), rather than section 646.9, subdivision (k), in requesting the restraining order. We note the language in both provisions is nearly identical, and that both require the court, at the time of sentencing, to consider issuing a restraining order. In light of these parallels, we believe it was the trial court's intention to impose a 10-year restraining order under the applicable code section notwithstanding the prosecutor's misstatement.
Section 273.5, subdivision (i) provides: "Upon conviction under subdivision (a) [corporal injury on present or former spouse or cohabitant or parent of child], the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order 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. This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation."
Thus, the following exchange took place at sentencing: "[THE PROSECUTOR]: Your Honor, we are going to request an extended C.P.O. under Penal Code Section 273.5(i). [¶] THE COURT: There is a civil one in effect to 2015, and I will go ahead and issue the ten-year criminal stay away order as well based upon the nature of the allegations and the underlying offense and the fact there are two new alleged violations."
--------
Moreover, we disagree with appellant that the trial court did not have authority under section 646.9, subdivision (k) to impose the 10-year restraining order because the court had lifted the 10-year restraining order it had previously issued under the same provision. Despite appellant's contrary assertion, nothing in section 646.9, subdivision (k) prohibits the court from issuing multiple restraining orders in cases, such as this one, where the defendant is sentenced more than once due to having his or her probation revoked. Indeed, as mentioned above, the language of section 646.9, subdivision (k) expressly mandates that the sentencing court consider issuing a restraining order. (§ 646.9, subd. (k)(1) [sentencing court ... shall consider issuing an order restraining the defendant from any contact with the victim"], italics added.) Moreover, section 646.9, subdivision (k) provides that the restraining order "may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation." (§ 646.9, subd. (k)(2).) The language of section 646.9, subdivision (k) thus authorized the court in this case to issue a 10-year restraining order when it placed appellant on probation, and again, when the court sentenced appellant to prison after he violated his probation.
"It is well established that a sentence which is the result of clerical error (in the sense of inadvertence, though committed by the judge) may be corrected at any time, by the trial court or the reviewing court; the same is true of an unauthorized sentence, such as one which fails to apply mandatory law. [Citations.]" (People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295.) Accordingly, we shall modify the judgment in the case to reflect that, in sentencing appellant on his conviction of stalking (§ 646.9, subd. (a)), the 10-year restraining order issued by the trial court was issued pursuant to section 646.9, subdivision (k), rather than section 273.5, subdivision (i).
DISPOSITION
The judgment is modified to reflect that the 10-year restraining order issued by the trial court was issued pursuant to section 646.9, subdivision (k). The trial court is ordered to prepare a new abstract of judgment and sentencing minute order reflecting this modification and to forward it to the appropriate authorities. In all other respects, the judgment is affirmed.
_______________
HILL, P.J.
WE CONCUR:
______________________
LEVY, J.
______________________
KANE, J.