P. v. Rown

Filed 12/22/09 P. v. Rown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found appellant guilty of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a))^[1]and found true an allegation that appellant inflicted great bodily injury (GBI) upon the victim ( 12022.7, subd. (e)). In a bifurcated proceeding tried by the court without a jury, the court found true allegations that appellant had served two prior prison terms ( 667.5, subd. (b)), and had a qualifying prior felony conviction under Californias Three Strikes law ( 667, subds. (b)-(i)).) The court sentenced appellant to a prison term of 14 years. This consisted of four years for the section 273.5, subdivision (a) violation, doubled to eight years under the three strikes law (see 667, subd. (e)(1)), plus four years for the GBI enhancement, plus one year for each of the two prior prison terms. The court also imposed certain fines and/or fees, and issued a protective order requiring appellant to stay away from the victim for a period of three years. Imposition of a protective order was recommended in the probation report utilized by the judge at appellants sentencing, and appellant raised no objection at his sentencing hearing to imposition of the protective order.

APPELLANTS CONTENTION

Appellant contends that the protective order was unauthorized by law and must be reversed. As we shall explain, the protective order was not an unauthorized sentence. We will affirm the judgment.

THE PROTECTIVE ORDER WAS AUTHORIZED BY LAW

[T]he unauthorized sentence concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.] ... [] Although the cases are varied, 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; in accord, see also People v. Smith (2001) 24 Cal.4th 849, 852.) Subdivision (i) of section 273.5 authorizes the protective order the court imposed. Subdivision (i) states:

Upon conviction under subdivision (a), 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.

That is really the end of the matter. Subdivision (i) of section 273.5 authorizes such a protective order when, as here, the defendants conviction was for a violation of subdivision (a) of section 273.5.

Appellants attempt to avoid this inescapable conclusion goes like this. The trial court did not expressly mention section 273.5 at appellants sentencing hearing. The courts written order utilized what appellant concedes was an outdated standard form (Judicial Council form CR-160 (Rev. July 1, 2007)). The form makes no mention of section 273.5. That is not surprising because subdivision (i) of section 273.5 was added to the statute by Stats. 2007, c. 582 and, as appellant also concedes, did not take effect until January 1, 2008. Appellants crime, trial and conviction all took place after January 1, 2008. The outdated form utilized by the court was designed for two types of protective orders, an ORDER PENDING TRIAL (Pen. Code 136.2) and an ORDER POSTRIAL PROBATION CONDITION (Pen. Code 1203.097.) Each of these options has a box to check. The court checked the second box, apparently because the protective order was posttrial and not pending trial even though the court was well aware that the protective order was not a condition of probation because the court had just sentenced appellant to 14 years in state prison. Nothing in section 1203.097, subdivision (a)(2) authorizes a court to impose a protective order on someone who is not on probation. The protective order language in that statute applies [i]f a person is granted probation for a crime in which the victim is a person defined in Section 6211of the Family Code.
( 1203.097, subd. (a).) Indeed, the WARNINGS AND NOTICES printed on page 2 of the standard form included the following: Orders under Penal Code section 1203.097 are probationary orders and the court has jurisdiction as long as the defendant is on probation. (Pen. Code.,  1203.097(a)(2).) And even if the court had checked the other box, protective orders authorized by section 136.2 are limited to the pendency of the criminal action in which they are issued or to probation conditions .... (People v. Stone (2004) 123 Cal.App.4th 153, 159.) Because the protective order in this case was not authorized by any statute mentioned on the standard form utilized by the court to issue the order, argues appellant, the protective order was unauthorized.

The flaw in this argument is that claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. (People v. Scott, supra, 9 Cal.4th at p. 354.) Section 275.5, subdivision (i), authorized appellants sentence. The fact that the courts order cited a different statute ( 1203.097, subd. (a)(2)) may have been a procedural flaw in the courts order, but this flaw did not render the protective order itself unauthorized. Neither People v. Stone, supra, or People v. Ponce (2009) 173 Cal.App.4th 378, both cited by appellant, call for a different result. In those cases there was no statute authorizing the trial court to impose the protective order it imposed. In the case presently before us, there is.

We also note that even if any error by the court in citing an incorrect statute had not been waived or forfeited by the absence of any objection in the trial court, and even if we were to conclude that the court erred in relying on section 1203.097, subdivision (a)(2), in issuing its order, any error would be harmless. Were we to reverse that portion of the judgment imposing the protective order and remand the case to the trial court, that court would almost certainly issue the exact same protective order, this time citing the correct statute (273.5, subd. (i)). It is thus not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Hill, J. and Poochigian, J.

^[1] All further statutory references are to the Penal Code unless otherwise stated.