Filed 5/15/18 P. v. Scott 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent,

v.

ERICK WAYNE SCOTT,

Defendant and Appellant.

F074700

(Super. Ct. No. BF158654B)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Defendant Erick Wayne Scott contends on appeal that the trial court failed to specify the duration of a protective order that prohibits him from committing violent acts or threats against a particular child. The People concede and we agree. Accordingly, we reverse the protective order and remand to the trial court.
BACKGROUND
On September 29, 2016, defendant pled no contest to three counts of felony child endangerment (Pen. Code, § 273a, subd. (a); counts 1-3) and admitted personally inflicting great bodily injury upon the victim as to count 2 (§ 12022.7, subd. (d)) and count 3 (§ 12022.7, subd. (a)). In exchange, defendant would be sentenced to nine years four months: two years in prison on count 2, plus five consecutive years on the enhancement; 16 consecutive months on count 3, plus one year on the enhancement; and two concurrent years on count 1.
On November 2, 2016, the trial court denied probation and sentenced defendant according to the plea agreement. The court orally ordered defendant “to refrain from committing further acts of violence or threats upon the—or directed to the victim in this case.”
On November 10, 2016, defendant filed a notice of appeal. The trial court granted a certificate of probable cause.
DISCUSSION
The parties agree that the trial court’s orally pronounced protective order was apparently based on section 136.2. They further agree that the trial court failed to state the duration of the protective order, effectively making the order permanent.
At the time defendant committed the crimes, section 136.2, subdivision (i)(1) provided:
“In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court 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.” (Italics added.)
Moreover, defendant notes that the protective order is not reflected on the abstract of judgment.
Accordingly, the protective order must be reversed and the matter remanded.
DISPOSITION
The protective order orally pronounced by the trial court is reversed. The matter is remanded to the trial court with directions to reorder a protective order and exercise its discretion pursuant to Penal Code section 136.2, including pronouncing the protective order’s duration of 10 years or less. The court is further directed to prepare an amended abstract of judgment reflecting the protective order, and forward certified copies of the abstract to the appropriate authorities. In all other respects, the judgment is affirmed.