Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super.Ct.Nos. SS062023A.
Duffy, J.
As a result of an August 2006 domestic violence incident involving defendant Joseph J. Bassaly and his girlfriend, defendant pleaded no contest to one count of infliction of corporal injury on a spouse or cohabitant, a felony (Pen. Code, § 273.5, subd. (a)) and one count of battery (§ 242) involving the 11-year-old son of defendant’s girlfriend. Defendant also admitted that he had suffered a prior strike conviction within the meaning of section 1170.12, subdivision (c)(1). Defendant was sentenced to a term of two years as to the corporal injury count, with the sentence doubled to four years pursuant to section 1170.12, subdivision (c)(1); he also received a concurrent sentence of 409 days for the battery count. He was given custody credits of 409 days.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant claims on appeal that the abstract of judgment does not properly reflect the application of 409 days of custody credits granted by the court at the sentencing hearing. He also argues that the sentencing court was without authority to enter an order that defendant have no direct or indirect contact with the victim or any of her family members. We conclude that the abstract should be amended to reflect application of the custody credits and that the no contact order must be stricken. We therefore will strike the no-contact order, require that the superior court modify the abstract of judgment, and will affirm the judgment as modified.
Because this appeal concerns only two sentencing matters, the facts underlying the convictions have little bearing on the issues before us. We therefore present an abbreviated summary of those facts as taken from the probation report.
Shortly after noon on June 29, 2006, the Salinas Police Department responded to a report of a physical domestic disturbance. The female victim reported that earlier that day, she and defendant, her boyfriend, had gotten into an argument. A short time later, the argument resumed and defendant placed the victim in an arm lock, threw her down on the bed, and struck her with a closed fist in the face and on her body. Defendant left, returned a short time later, and resumed the argument. Defendant pushed and choked the victim, followed her into the bathroom, grabbed her by the face and pushed her to the ground. The victim called out for someone to call the police. (At the time, the victim’s children were watching television in the living room.)
The victim’s son asked a neighbor to call the police. The son reported to the police that after he returned to the apartment, defendant confronted him, pushed him against a wall, pushed him again, and said, “ ‘See if you ever call the police again.’ ”
The female victim reported to the police that defendant had physically abused her approximately twice a week. She was observed to have had a number of bruises on her body, including on her arms, face, and back.
PROCEDURAL BACKGROUND
On August 2, 2006, defendant was charged by information with six counts, namely, dissuading a witness by force or threat, a felony (§ 136.1, subd. (c)(1); counts 1 and 2); infliction of corporal injury on a spouse or cohabitant, a felony (§ 273.5, subd. (a); count 3); terrorist threats, a misdemeanor (§ 422; count 4); child endangerment, a misdemeanor (§ 273a, subd. (b); count 5); and battery, a misdemeanor (§ 242; count 6). Counts 1, 3, and 4 alleged crimes against defendant’s girlfriend; counts 2, 5, and 6 alleged crimes against the 11-year-old son of defendant’s girlfriend. The information also alleged as to counts 1 and 2 that defendant had suffered a prior strike conviction within the meaning of section 1170.12, subdivision (c)(1).
A jury trial occurred in October 2006 that resulted in a hung jury as to all counts; the court declared a mistrial. On January 22, 2007, after the court granted the People’s motion to amend count 3 to reflect a felony and to add the enhancement under section 1170.12, subdivision (c)(1) to count 3, defendant pleaded no contest to counts 3 and 6 and admitted the special allegation as to count 3. Defendant filed a motion to strike the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On March 28, 2007, the court denied defendant’s Romero motion and sentenced defendant on count 3 to the lower term of two years, doubled pursuant to section 1170.12, subdivision (c)(1) to four years. The court further sentenced defendant on count 6 to 409 days; he received a credit for time served of 273 days plus 136 days good and work time. The court dismissed the remaining charges and special allegations. In addition, the court ordered that defendant “have no contact directly or indirectly with victim or any family member.” (Underscoring in original.)
Defendant in pro per filed a timely notice of appeal. Defendant stated in the notice that the appeal was based upon the sentence or other matters occurring after a guilty or no-contest plea and also challenged the validity of the plea. The court denied defendant’s request for a certificate of probable cause.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions:
1. The abstract of judgment does not properly reflect the application of 409 days of custody credits.
2. The sentencing court was without authority to enter an order that defendant have no direct or indirect contact with the victim or any of her family members.
We address each of these appellate claims below.
As noted, defendant’s notice of appeal included both a challenge to the validity of his plea (i.e., a “certificate issue”)—thereby requiring defendant to obtain a certificate of probable cause in compliance with section 1237.5 and California Rules of Court, rule 8.304(b)—and to the sentence or other postplea matters (i.e., “noncertificate issues”). Defendant did not obtain a certificate of probable cause and does not present any argument in his appellate briefs challenging the plea. We may not consider the appeal as to the “certificate issue.” (People v. v. Mendez (1999) 19 Cal.4th 1084, 1088.) We may, however, address the noncertificate issues raised here as to which a timely appeal was filed, namely the claimed omission in the abstract and the allegedly unauthorized no-contact condition in the sentence. (Ibid.; see also id. at p. 1096; People v. Manriquez (1993) 18 Cal.App.4th 1167, 1169 [rejecting challenge to plea for failure to file certificate but addressing noncertificate issue].)
II. Reference to Custody Credits in Abstract of Judgment
The probation officer’s report noted that defendant had earned 273 actual time credits for time in custody plus 136 days of good conduct/work credits for a total of 409 days of custody credits. The court sentenced defendant to 409 days on the count 6 conviction and gave him credit for time served. It also directed the probation officer to file a memorandum confirming the correct calculation of presentence credits; it noted that either party could object to the calculation and the matter would be scheduled for further hearing. The probation officer complied on April 3, 2007, confirming that defendant was entitled to a total of 409 days of custody credits. Neither defendant nor the People objected. The abstract of judgment, however, contained no reference to these custody credits; instead, it stated that “[c]ustody credits are to be determined by Probation Officer and forwarded to Dept. of Corrections by memorandum.”
Defendant contends that he is entitled to have the abstract of judgment specifically reflect his entitlement to 409 days of custody credits. He notes further that—as he stated in his request for a probable cause certificate—the Department of Rehabilitations and Corrections has not given him credit for time served in county jail. He therefore requests that the abstract be amended to reflect the custody credits. The Attorney General agrees that the record does not reflect whether the probation officer’s memorandum was forwarded to the Department of Rehabilitations and Corrections; he argues, however, that any amendment of the abstract is “unnecessary.”
An abstract of judgment is authorized under section 1213 and 1213.5. In cases in which imprisonment is imposed, the abstract of judgment constitutes an “order[] sending the defendant to prison and imposing the duty upon the warden to carry out the judgment.
“When a probationary order or a judgment, other than of death, has been pronounced, a copy of the entry of that portion of the probationary order ordering the defendant confined in a city or county jail as a condition of probation, or a copy of the entry of the judgment, or, if the judgment is for imprisonment in the state prison, either a copy of the minute order or an abstract of the judgment as provided in Section 1213.5, certified by the clerk of the court, or by the judge, if there is no clerk, and a Criminal Investigation and Identification (CII) number shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution. . . . ” (§ 1213.) “The abstract of judgment provided for in Section 1213 shall be prescribed by the Judicial Council.” (§ 1213.5.)
[Citations.]” (People v. Hong (1998) 64 Cal.App.4th 1071, 1076.) It was the intent of the Legislature that the abstract summarize the judgment. (Id. at p. 1080; see also id. at p. 1083.) The abstract, however, “is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185; see also People v. Prater (1977) 71 Cal.App.3d 695, 703.) An appeal will lie to correct an abstract of judgment that does not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell, supra, at p. 185.) Such an appeal may address an incorrect entry concerning sentencing credits in the abstract. (See People v. Neufer (1994) 30 Cal.App.4th 244, 254 [appeal to correct error in abstract reflecting excessive credits].)
Defendant is plainly entitled to 409 days of presentence custody credits pursuant to section 2900.5. We disagree with the Attorney General that the omission of the custody credits in the abstract is inconsequential. We therefore will direct the trial court to amend the abstract to properly reflect the entitlement of defendant under section 2900.5 to 409 days of custody credits (273 actual days plus 136 good time/work time days).
Section 2900.5 provides in relevant part as follows: “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. . . . [¶] (b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”
III. The No-Contact Order
At the time of sentencing, the court made the following order: “And you are not to have any contact, unless the Department of Corrections authorizes it, between the victim and/or any member of her family.” Similarly, the court’s minutes reflect that defendant was “ordered to have no contact directly or indirectly with victim or any family member.” (Original underscoring.) Defendant contends that this no-contact order was unauthorized and must be stricken. The Attorney General notes that he is “constrained to agree” that the no-contact order was without statutory authorization. But he argues that the order should be upheld as merely an advisory matter rather than a required course of action.
Defendant did not raise an objection below to the no-contact order. But his failure to object to the order as an unauthorized sentence did not constitute a forfeiture of his claim on appeal. (See People v. Smith (2001) 24 Cal.4th 849, 851.)
There are a number of statutes that authorize no-contact orders at the time of sentencing under certain circumstances. For instance, section 1202.05, subdivision (a) requires the court to prohibit all visitation between a defendant convicted of a violation of section 261 and the minor victim. Section 5054.2 contains a similar mandate. In connection with a conviction for stalking, the court may issue a no-contact order for a maximum period of 10 years. (§ 646.9, subd. (k).) And section 136.2 provides broad authority to the court to issue no-contact orders in criminal cases “upon a good cause belief that harm to . . . a victim . . . has occurred.” (§ 136.2, subd. (a); id., (a)(4).) But the court issuing the order must have jurisdiction over the pending matter. (§ 136.2, subd. (a).) A trial court may also impose a no-contact order as a condition of probation. (§ 1203.1, subd. (i)(2).) In addition, the parole authority, on the request of the victim, must impose a form of no-contact order as a condition of parole. (§ 3053.2, subd. (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. . . . ” (§ 1202.05, subd. (a).)
“Whenever a person is incarcerated in a state prison 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 Secretary of the Department of Corrections and Rehabilitation shall protect the interest of that child victim by prohibiting visitation between the incarcerated person and the child victim pursuant to Section 1202.05. The secretary shall allow visitation only when the juvenile court, pursuant to Section 362.6 of the Welfare and Institutions Code, finds that visitation between the incarcerated person and his or her child victim is in the best interests of the child victim.” (§ 5054.2.)
“The sentencing court also shall consider issuing an order restraining the defendant [convicted of violating section 646.9, subdivision (a), by “willfully, maliciously, and repeatedly follow[ing] or willfully and maliciously harass[ing] another person and . . . mak[ing] a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family”] from any contact with the victim, that 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.” (§ 646.9, subd. (k).)
“Except as provided in subdivision (c), upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: [¶] (1) Any order issued pursuant to Section 6320 of the Family Code. [¶] (2) An order that a defendant shall not violate any provision of Section 136.1. [¶] (3) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, shall not violate any provisions of Section 136.1. [¶] (4) An order that any person described in this section shall have no communication whatsoever with any specified witness or any victim, except through an attorney under any reasonable restrictions that the court may impose. [¶] (5) An order calling for a hearing to determine if an order as described in paragraphs (1) to (4), inclusive, should be issued. [¶] (6) An order that a particular law enforcement agency within the jurisdiction of the court provide protection for a victim or a witness, or both, or for immediate family members of a victim or a witness who reside in the same household as the victim or witness or within reasonable proximity of the victim’s or witness’ household, as determined by the court. The order shall not be made without the consent of the law enforcement agency except for limited and specified periods of time and upon an express finding by the court of a clear and present danger of harm to the victim or witness or immediate family members of the victim or witness. [¶] For purposes of this paragraph, "immediate family members" include the spouse, children, or parents of the victim or witness. [¶] (7)(A) Any order protecting victims of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. . . . ” (§ 136.2, subd. (a).)
“Upon conviction of any sex offense subjecting the defendant to the registration requirements of Section 290, the court may order as a condition of probation, at the request of the victim or in the court’s discretion, that the defendant stay away from the victim and the victim’s residence or place of employment, and that the defendant have no contact with the victim in person, by telephone or electronic means, or by mail.” (§ 1203.1, subd. (i)(2).)
“Upon the request of the victim, or the victim's parent or legal guardian if the victim is a minor, the parole authority shall impose the following condition on the parole of a person released from prison for an offense involving threatening, stalking, sexually abusing, harassing, or violent acts in which the victim is a person specified in Section 6211 of the Family Code: [¶] Compliance with a protective order enjoining the parolee from threatening, stalking, sexually abusing, harassing, or taking further violent acts against the victim and, if appropriate, compliance with any or all of the following: [¶] (1) An order prohibiting the parolee from having personal, telephonic, electronic, media, or written contact with the victim. [¶] (2) An order prohibiting the parolee from coming within at least 100 yards of the victim or the victim's residence or workplace. [¶] (3) An order excluding the parolee from the victim’s residence.” (§ 3053.2, subd. (a).)
The court in People v. Stone (2004) 123 Cal.App.4th 153, 159 (Stone) held that a no-contact order under section 136.2 may be issued and effective only during the pendency of a criminal proceeding, because section 136.2 “is aimed at protecting only “ ‘victim[s] or witness[es].’ ” The court held that Section 136.2’s purpose of protecting victims and witnesses was “an indication of [section 136.2’s] limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them.” (Stone, at p. 159.) It found that section 136.2 was not intended to displace Code of Civil Procedure section 527.6 or other civil injunction statutes. (Stone, at p. 160.) Further, the court concluded that the good cause requirement in section 136.2 required a threat, or likely threat, in connection with the criminal proceedings or participation in them. (Stone, at p. 160.) The appellate court in Stone thus concluded that the trial court had had no authority, as part of its sentencing of the defendant to a four-year prison term, to impose three-year no-contact orders: “They were not limited to the pendency of the criminal proceeding and were not a probation condition, as [the defendant] was not given probation. The restraining orders therefore transcended the authorization of section 136.2 and must be reversed.” (Ibid., fn. omitted.)
Code of Civil Procedure section 527.6, under which an applicant may obtain injunctive relief of no more than three years in duration if he or she establishes by “clear and convincing evidence that unlawful harassment exists” (id., subd. (d)) provides in relevant part: “(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section. [¶] (b) For the purposes of this section, ‘harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. [¶] As used in this subdivision: [¶] (1) ‘Unlawful violence’ is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others. [¶] (2) ‘Credible threat of violence’ is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose. [¶] (3) ‘Course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, . . . ”
Stone is controlling. Here, the no-contact order was imposed in connection with the court’s sentencing of defendant to a term of four years in prison. It was not authorized under any statute. Furthermore, the Attorney General provides no authority—beyond its citation of section 1203.01—for its claim that the no-contact order may be upheld as being simply advisory. As defendant notes, the safeguards of section 1203.01 were not followed here (see In re Minnis (1972) 7 Cal.3d 639, 650), even were we to accept the Attorney General’s novel view that the no-contact order may be deemed advisory only.
“Immediately after judgment has been pronounced, the judge and the district attorney, respectively, may cause to be filed with the clerk of the court a brief statement of their views respecting the person convicted or sentenced and the crime committed, together with any reports the probation officer may have filed relative to the prisoner. The judge and district attorney shall cause those statements to be filed if no probation officer’s report has been filed. The attorney for the defendant and the law enforcement agency that investigated the case may likewise file with the clerk of the court statements of their views respecting the defendant and the crime of which he or she was convicted. Immediately after the filing of those statements and reports, the clerk of the court shall mail a copy thereof, certified by that clerk, with postage prepaid, addressed to the Department of Corrections at the prison or other institution to which the person convicted is delivered. . . . ” (§ 1203.01.)
We therefore conclude that the no-contact order must be stricken from the judgment. As this modification is a pure question of law with only one answer, we correct this sentencing error at this juncture. (See People v. Smith, supra, 24 Cal.4th at pp. 852-854.)
DISPOSITION
The judgment is modified to strike the no-contact order. The trial court is directed to prepare an amended abstract of judgment that specifies that defendant is entitled under section 2900.5 to 409 days of custody credits (273 actual days plus 136 good time/work time days). That amended abstract shall be delivered to the Department of Corrections. As so modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.