Filed 6/20/17 P. v. Jimenez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERTO JIMENEZ,

Defendant and Appellant.
H042844
(Monterey County
Super. Ct. No. SS150311)

Following his conviction for committing a lewd act on a child under the age of 14 (Pen. Code § 288, subd. (a)), defendant was ordered to stay away from the victim. The no-contact order imposed by the court did not state that it was for a limited duration. Defendant argues that the court erred, because section 136.2, subdivision (i)(1) provides that a no-contact order may only be imposed for a period of up to 10 years.


STATEMENT OF THE CASE
In June 2015, defendant was charged with four counts of committing a lewd act on a child under the age of 14, in violation of section 288, subdivision (a). On July 21, 2015, defendant pleaded no contest to two counts of committing a lewd act on a child under the age of 14. Defendant was sentenced to serve six years in state prison. At sentencing, the court made the following no-contact order: “Also, you may not have any contact or communications with the victim directly or indirectly. You may not come within 100 yards of her, her home, vehicle, work place, and school. I believe that’s Penal Code Section 236.1. I used to have the cite right here, but someone took it down.”
DISCUSSION
Defendant argues that the court erred in its no-contact order, because the order was indefinite, and not limited to 10 years as required by law.
Respondent first argues that the appeal should be dismissed, because defendant did not secure a certificate of probable cause pursuant to section 1237.5, and he waived his right to appeal as part of his plea bargain. However, respondent concedes that if we find the appeal cognizable, the matter should be remanded for the trial court to impose a limit on the duration of the no-contact order.
With regard to the requirement that a defendant secure a certificate of probable cause, section 1237.5 provides, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Nevertheless, the law recognizes an exception to section 1237.5’s certificate requirement. This exception, stated in California Rules of Court, rule 8.304(b)(4)(B), permits an appeal without a certificate of probable cause if the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.”
Respondent argues that while defendant’s notice of appeal states that the present case is based “on the sentence or other matters occurring after the plea that do not affect the validity of the plea itself,” the appeal is “in substance” a challenge to the validity of the plea itself. (See, e.g., People v. Buttram (2003) 30 Cal.4th 773, 781-782.) Specifically, respondent points to the fact that defendant was made aware that a no-contact order would be imposed as part of the negotiated disposition in this case. According to respondent, defendant cannot challenge the order, because to do so would challenge the plea, requiring him to secure a certificate of probable cause.
While it is true that defendant was aware when he entered his plea that a no-contact order would be imposed as part of his sentence, defendant was not aware, nor did he agree to the imposition of an order that was unlimited in duration in violation of the law. Defendant’s challenge of the order in this appeal does not challenge the validity of the plea; rather, it challenges the validity of an unlawful no-contact order. Defendant was not required to secure a certificate of probable cause in this case.
Respondent also asserts that this matter should be dismissed because defendant waived his right to appeal as part of his plea bargain. However, an unauthorized or illegal sentence may be considered at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) In addition, sentencing errors that occur subsequent to the plea may be subject to appeal, regardless of the existence of a waiver. (See, e.g., People v. Sherrick (1993) 19 Cal.App.4th 657, 659.) Based on defendant’s challenge of an unlawful sentence, his waiver of his appellate rights does not require that this matter be dismissed.
Regarding the substance of the appeal, respondent concedes that the no-contact order was improper, and that the matter must be remanded for the trial court to limit the duration of the order to a maximum of 10 years pursuant to section 136.2, subdivision (i)(1). We accept the concession, and will remand the matter accordingly.
DISPOSITION
The matter is remanded to the trial court to limit the duration of the no-contact order to a maximum of 10 years as required under section 136.2, subdivision (i)(1).


______________________________________
RUSHING, P.J.





WE CONCUR:




____________________________________
GROVER, J.










___________________________________
WALSH, J.*