P. v. Crocker
Filed 1/9/14 P. v. Crocker CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN JOE
CROCKER,
Defendant and Appellant.
D063692
(Super. Ct. No.
SCS260084)
APPEAL
from a judgment of the Superior Court of
San Diego County, Edward P. Allard, III, Judge. Affirmed as modified.
Jared
G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General,
for Plaintiff and Respondent.
A
jury convicted Steven Joe Crocker of one count of counterfeiting (Pen. Code,
one count of possessing counterfeiting apparatus (§ 480, subd. (a)), and
one count of possessing child
pornography (§ 311.11, subd. (a)).
Crocker admitted two prison prior convictions (§ 667.5, subd.
(b)).
The
court sentenced Crocker to a determinate term of seven years four months in
prison and required Crocker to register as a sex offender (§ 290). The court also ordered Crocker to have no
contact with a grandniece, who the court found to be a "potential"
victim of Crocker's perverse interest in young girls.
Crocker
appeals challenging only the no contact order regarding his grandniece. He contends the court lacked authority to
issue such an order and thus it amounts to an unauthorized sentence. The People respond that the grandniece is a
victim within the meaning of California Constitution, article I, section 28,
subdivision (a), paragraph 3, based on the facts of the child pornography
offense and that the court had the
inherent authority, in the absence of any contrary statutes, to impose the no
contact order. We agree with Crocker
that even if the court has inherent power to implement the constitutional
protection of crime victims, there was no factual basis in this record for the
issuance of a no contact order.
Since
this appeal does not raise any issue regarding the admissibility or the
sufficiency of the evidence to support the convictions in this case we will
omit the usual statement of facts.
Instead, we will discuss those facts which are pertinent to Crocker's
contention in the discussion portion of this opinion.
DISCUSSION
As
we have indicated, Crocker contends the trial court lacked the authority to
issue its verbal no contact order. He
argues the absence of express statutory authority providing for such an order
renders it an unauthorized sentence.
A. Background
Crocker
was arrested in connection with an investigation into suspected counterfeiting
activity. During the course of the
search of the room in which Crocker was living, police searched two laptops and
one desk top computer. They also found a
number of photographs among papers in the room.
The photos showed a naked, 12-year-old girl in various sexual
poses. Police also discovered numerous,
nonpornographic images of his grandniece, who lived a block away from Crocker's
residence.
Various
examinations of the computers revealed search patterns for child pornography, "forced
sex," "blond [sic] teen raped," and other sites containing
forcible sex with minors. Review of the
computers showed a pattern whereby Crocker would view the images of his grandniece
and then quickly move to a site dealing with rape or forced sex with young
girls
After
the trial court imposed the prison sentence the prosecutor asked for a protective
order or at least for a verbal no contact order regarding his grandniece. The court declined to issue a three-year
protective order since Crocker would be in prison longer than that period.
Following
the court's granting of the no contact order, defense counsel objected to the
order. The court explained its reasoning
for issuing the order preventing Crocker from directly or indirectly contacting
the girl. The court said:
"You know, when I was dealing with
the issue as to the victim, sort of ahead of time, it's kind of interesting
because the niece isn't a named victim.
But it does not mean that she isn't a potential victim in this
case. And that's really--the court now
understanding the evidence in this particular case, and a lot of that, you know,
came out during the actual trial itself as opposed to the court's in limine
hearings in this case, and so in this particular case and in exercising the
court's discretion, which I believe I'm allowed to do, I am--I have made that
order, but I do understand [Defense Counsel's] position."
B. Legal Principles
The
People rely on California Constitution, article I, section 28, subdivision (a),
paragraph (3) et. seq., for the proposition that there is established authority
for the court to issue its no contact order.
The section referred to relates to the right of crime victims to be
reasonably protected from a defendant or those acting on behalf of a defendant.
(Cal. Const., art. I, § 28, subd. (b).) The section's definition of "victim"
is broad, including those to whom harm is threatened. (Cal. Const., art.
I, § 28, subd. (e).)
In
reviewing the provisions of the constitutional enactment we review the sections
de novo. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 311.) We consider the various provisions of the
section with reference to the " 'entire scheme of law of which it is
part so that the whole may be harmonized and retain effectiveness.' " (People
v. Pieters (1991) 52 Cal.3d 894, 899.)
Courts
have the inherent power to act to carry out the legislative or constitutional
purpose as long as the court does not act contrary to any legislative
enactment, and where there is a factual justification showing such action is
necessary. (People v. Ponce (2009) 173 Cal.App.4th 378, 384 (
Cal.App.4th 965, 995-996 (Robertson).)
Curiously,
both parties cite to Ponce
supra, 208 Cal.App.4th 965 to justify their positions. However, neither case supports the People's
position in this case.
Ponce, supra, 173 Cal.App.4th 378, 384, invalidated the trial court's
decision to issue a criminal protective order without compliance with the
procedural requirements of the controlling statutes. Thus, while
act contrary to statute or without factual justification.
Similarly,
Robertson, supra, 208
Cal.App.4th at pages 995 to 996, does not support the People's inherent
power argument here. In
contact order similar to that granted in this case. Again, Robertson
acknowledged the existence of inherent power, but found the no contact order
unauthorized. There was neither
statutory authority for such order nor any factual showing of necessity that
would allow the court to act without such justification.
C. Analysis
After
the sentence was imposed the prosecutor stated that a protective order had been
prepared but left it at the office. The
prosecutor observed that a no contact order might suffice. The prosecution presented no evidence of
efforts by Crocker to contact his grandniece or that there was some risk of
such contact that could not be addressed by other statutory means. The court's observations set forth above are
somewhat vague as to why the court perceived a no contact order was necessary,
nor was Crocker given any notice that such an order would be sought by the
prosecution. As the court said in
to have such an order, without more, is not an adequate showing sufficient to
justify the trial court's action."
(Ponce, supra, 173
Cal.App.4th at pp. 384-385.)
We
are sympathetic with the trial court's apparent concerns about what appeared to
be a sexually perverse fascination that Crocker may have with his grandniece. However, she was not a victim in this case
and the prosecution has not identified any evidence that there is identifiable
threat to her from Crocker, or even demonstrated Crocker may have either the
intention or the means to contact his grandniece. Given his incarceration for in excess of
seven years, more was required in this case to justify the no contact order
that was presented to the court or impliedly found by the court based in the
trial evidence. Accordingly, we must
order that the no contact order be stricken.
DISPOSITION
The
no contact order issued by the trial court at the time of sentence is
stricken. The trial court is ordered to
modify its minutes accordingly. In all
other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE,
J.
IRION,
J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise specified.
