P. v. Ross

Filed 6/15/06 P. v. Ross CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Robert Melvin Ross entered a negotiated plea of no contest to inflicting corporal injury on a spouse and making criminal threats, and he admitted serving a prior prison term. The trial court sentenced defendant to a state prison term of six years, eight months and ordered, among other things, that he complete a certified batterer's treatment program as a condition of parole.

On appeal, defendant contends the trial court imposed an unauthorized sentence in ordering him, as a condition of parole, to complete a batterer's treatment program pursuant to Penal Code section 1203.097, subdivision (a)(6). Defendant points out that the statute applies only to criminals who receive probation. The People correctly concede the error.

DISCUSSION

If a defendant is granted probation for a crime in which the victim is a person described in Family Code section 6211, i.e., the victim is defendant's spouse or other victim of domestic violence, the terms of probation must include, among other things, that the defendant successfully complete a batterer's program as defined in the statute. (Pen. Code, § 1203.097, subds. (a)(6), (c).)

Here, defendant did not receive probation; he was sentenced to prison. The parole board, not the trial court, sets the conditions of parole. (Pen. Code, § 3053; In re Morrall (2002) 102 Cal.App.4th 280, 287.)

Because the trial court could not lawfully order defendant to complete a batterer's treatment program as a condition of parole, the error may be raised for the first time on appeal, and we may correct the error without remanding for further proceedings in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852-854.)

DISPOSITION

The order directing defendant to complete a certified batterer's treatment program as a condition of parole is stricken. As modified, the judgment is affirmed. Because the abstract of

judgment does not reflect the erroneous order, an amendment to the abstract is not required.

SCOTLAND , P.J.

We concur:

DAVIS , J.

BUTZ , J.

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