Opinion
C055823
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. JACK ALBERT WALLACE, Defendant and Appellant.
NOT TO BE PUBLISHED
In case No. CM025878, defendant Jack Albert Wallace pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and was placed on probation for three years under Proposition 36.
In case No. CM026667, defendant pleaded guilty to child endangerment (Pen. Code, § 273a, subd. (a)) and admitted having served a prior prison term (§ 667.5, subd. (b)). In exchange, two related counts were dismissed. The trial court found that the plea constituted a probation violation in case No. CM025878.
Hereafter, undesignated section references are to the Penal Code.
The trial court sentenced defendant to state prison in both cases for an aggregate term of seven years eight months. The trial court "recommended" that the California Department of Corrections and Rehabilitation (CDCR) allow no visitation between defendant and the victim of the child endangerment count.
On appeal, defendant contends the trial courts "recommendation" for no visitation "must be stricken as unauthorized and the abstract of judgment must be amended." We shall affirm the judgment.
FACTS
Because both cases were resolved without trial, our statement of facts is taken from the probation officers report.
In October 2006, in case No. CM025878, defendant was walking down the street while apparently under the influence of a controlled substance. When an officer contacted him, he tried to discard a baggie that contained 13 morphine pills.
In March 2007, in case No. CM026667, police were dispatched to a residence regarding a trespass in progress. Defendant was present at the residence. During a protective sweep of the apartment where defendant stayed at various times, officers found defendants four-month-old child lying on a bed with a pillow over her whole body, including her head. The officers also found a baggie of marijuana on the floor next to the bed. The residence was unkempt.
DISCUSSION
Defendant contends the trial court erred when it "recommended" that he have no visitation with the child victim while at CDCR. We disagree.
During the sentencing hearing, the trial court ordered that "defendant is to have no visitation with the victim [] pursuant to Penal Code section 1202.05 while at" CDCR.
A few minutes later, this exchange occurred:
"[THE PROSECUTOR]: . . . The court has ordered term number 11; that he is to have no visitation with the victim.[] I believe that with the listed code sections we dont have it in the instant matter.
The probation report contained a form "RECOMMENDATION" that provided, in paragraph 11, "The defendant have no visitation with the victim(s) per § 1202.05 PC[.] (Applies to § 261, 264, 266c, 285, 286, 288, 288a, 288.5 and 289.)" The box beside paragraph 11 was not checked. Thus, the probation officer had not recommended paragraph 11 in this case.
"THE COURT: Im sorry?
"[THE PROSECUTOR]: On number 11.
"THE COURT: Correct.
"[THE PROSECUTOR]: And I think [sic; do not think] that the 273a(a) is listed as one of those code sections. So I dont know if the court wants to order that or if we have the ability to do so.
"THE COURT: I recommended that he have no visitation.
"[THE PROSECUTOR]: Okay.
"THE COURT: I cant order the [CDCR], but I can recommend that he have no visitation." (Italics added.)
"[THE PROSECUTOR]: Very good. Submitted.
"[DEFENSE COUNSEL]: Thats how I understood it."
Item No. 11 of the abstract of judgment includes the notation, "Court recommends the defendant have no visitations with [the victim]."
The parties concur, and we agree, that defendants offense is not listed in section 1202.05 and does not support a mandatory no-visitation order. (Cf. People v. Jillie (1992) 8 Cal.App.4th 960, 963.) Thus, the trial courts initial pronouncement of a no-visitation order "pursuant to Penal Code section 1202.05" was incorrect.
Section 1202.05, subdivision (a), provides in relevant part: "(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 courts order shall be transmitted to the Department of Corrections, to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim, and to the child victim."
However, as the quoted exchange makes plain, the trial court withdrew its mandatory order upon prompting by the prosecutor. The court clarified that it had merely "recommended that [defendant] have no visitation," because "I cant order the [CDCR ], but I can recommend that he have no visitation." (Italics added.)
Defendant contends the trial court "had no legal basis to . . . recommend that visitation be barred, and the courts imposing the `recommendation constituted an unauthorized sentence." This wordplay cannot obfuscate the basic fact, understood by all at sentencing, that a mere recommendation is not imposed at all. Defendants reliance on authority pertaining to unauthorized sentences (People v. Scott (1994) 9 Cal.4th 331, 354) is unavailing.
In any event, nothing in the present record indicates whether CDCR has adopted the trial courts recommendation. There is no suggestion that defendants visitation has been limited in any way. Thus, even if the trial courts recommendation were susceptible of being misperceived as an order, there is no indication that defendant has been aggrieved. For that reason, too, his claim must fail.
DISPOSITION
The judgment is affirmed.
We Concur:
SIMS, Acting P.J.
RAYE, J.