P. v. Gomez
Filed 2/4/09 P. v. Gomez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. EUGENE JEFFERY GOMEZ, Defendant and Appellant. | C058448 (Super. Ct. No. CM024182) |
Defendant Eugene Jeffery Gomez pled no contest to theft from an elder or dependent adult in violation of Penal Code section 368, subdivision (d).[1] In exchange for his plea, an additional charge of fraudulent use of an access card obtained without the cardholders consent was dismissed. The trial court suspended imposition of sentence and granted defendant three years probation. Among other conditions of probation, defendant was ordered to pay a $300 restitution fine pursuant to section 1202.4, subdivision (b), and an additional $300 restitution fine (effective upon revocation of probation) pursuant to section 1202.44.
Following two violations of probation, the trial court sentenced defendant to three years in state prison. The court also imposed various other orders, including a $300 restitution fine pursuant to section 1202.4, an additional $300 restitution fine (stayed pending successful completion of parole) pursuant to section 1202.45, and a no-contact order prohibiting defendant from having oral contact with his father, the victim of the theft.
On appeal, defendant contends that the trial court lacked authority to impose a no-contact order prohibiting oral contact between defendant and the victim. Defendant also contends that the trial court lacked authority to impose a second restitution fine pursuant to section 1202.4 following revocation of his probation. We agree with both contentions, and will modify the judgment to strike the no-contact order and the second restitution fine.
FACTUAL AND PROCEDURAL BACKGROUND
We dispense with a detailed recitation of the underlying facts as they are unnecessary to the resolution of this appeal. Suffice it to say that defendant stole his 84-year-old fathers debit card. Unable to decipher the personal identification number (PIN), he was unsuccessful in his attempts to use it to purchase merchandise. Defendant then gave the card to a codefendant, Deborah Banta, who found the PIN written on the back of the card. Banta subsequently charged $1,340 to the stolen card at various casinos and convenience stores.
Defendant was charged with theft from an elder or dependent adult ( 368, subd. (d)) and grand theft based on the fraudulent use of an access card obtained without the cardholders consent ( 484g, subd. (a)). After an initial plea of not guilty, defendant entered a plea of no contest to theft from an elder or dependent adult. In exchange for his plea, the remaining charge was dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.[2] The trial court suspended imposition of sentence and granted defendant three years probation. Among other conditions of probation, defendant was ordered to pay a $300 restitution fine pursuant to section 1202.4, subdivision (b), and an additional $300 restitution fine (effective upon revocation of probation) pursuant to section 1202.44.
Defendant twice violated the terms and conditions of his grant of probation. Following the second violation, the trial court sentenced defendant to three years in state prison. The court also imposed various other orders, including a $300 restitution fine pursuant to section 1202.4, an additional $300 restitution fine (stayed pending successful completion of parole) pursuant to section 1202.45, and a no-contact order prohibiting defendant from having oral contact with his father.
DISCUSSION
I
Defendant contends, and the Attorney General concedes, that the trial court lacked authority to impose a no-contact order prohibiting contact between defendant and his father, Jesus Gomez. We accept the concession.
A claim that a sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. [Citations.] (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Although the cases are varied, a sentence is unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] (People v. Scott (1994) 9 Cal.4th 331, 354.)
Section 12 provides: The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed. Thus, while the imposition of sentence and the exercise of sentencing discretion is a judicial function (People v. Navarro (1972) 7 Cal.3d 248, 258), the Legislature possesses the exclusive power to define criminal offenses and prescribe penalties for violations thereof (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3). As we explained in People v. Lara (1984) 155 Cal.App.3d 570, 574: A sentencing court has no discretion to deviate from the punishment prescribed by statute.
In this case, the trial court imposed a no-contact order prohibiting oral communication between defendant and his father.[3] Because a no-contact order is a form of punishment imposed for the commission of a crime, it must have a statutory basis in order to be valid. As the Attorney General concedes, the order in this case is not authorized by section 1203.1, which authorizes a trial court to issue a no-contact order as a condition of probation in sex offense cases. ( 1203.1.) Nor is it authorized by section 136.2, which authorizes a trial court to order defendant to have no contact with a witness or victim for the duration of a criminal proceeding upon good cause to believe that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. ( 136.2.) Nor are we aware of any statute that would provide a basis for the trial court to issue such an order in this case.
Accordingly, we must strike the no-contact order prohibiting oral contact between defendant and his father as an unauthorized sentence.
II
Defendant further contends, and the Attorney General also concedes, that the trial court lacked authority to impose a second restitution fine pursuant to section 1202.4 following revocation of his probation. We accept this concession as well.
Section 1202.4, subdivision (b), provides: In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Subdivision (m) of section 1202.4 provides in relevant part: In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation.
In People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers), we held that a restitution fine imposed at the time probation is granted survives the revocation of probation. (Id. at p. 820.) There, the trial court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b), when it granted defendant probation, and imposed an additional $500 restitution fine when defendants probation was revoked. (Chambers, supra, at p. 821.) Because the first restitution fine survived the revocation of probation, the second restitution fine was unauthorized and had to be stricken from the judgment. (Id. at p. 823; see also People v. Arata (2004) 118 Cal.App.4th 195, 201-203 [trial court erred when it imposed, pursuant to section 1202.4, a second $800 restitution fine when it had already imposed a $600 restitution fine at the time defendant was granted probation; second restitution fine stricken from the judgment].)
In this case, the trial court imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b), when defendant was granted probation. Following revocation of defendants probation, the court imposed an additional $300 restitution fine. While the abstract of judgment discloses only one restitution fine, the oral pronouncement always prevails over the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [abstract of judgment cannot add to or modify the judgment which it purports to digest or summarize].) The oral pronouncement reveals that two restitution fines were imposed -- one required by section 1202.4, subdivision (b), and the other unauthorized because the first survived revocation of probation.
As was the case in Chambers and Arata, because the first restitution fine survived the revocation of probation, the second restitution fine was unauthorized and must be stricken from the judgment.
DISPOSITION
The judgment is modified as follows: (1) The order prohibiting oral contact between defendant and his father is stricken from the judgment; (2) The $300 restitution fine imposed on March 12, 2008, is stricken from the judgment. The $300 restitution fine imposed on August 9, 2006, remains in force. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
MORRISON , J.*
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] The plea agreement also included four additional cases: CM24716, SCR41050, DT66042, and SCR54901. In CM24716, defendant pled no contest to misdemeanor criminal threats ( 422); an additional charge was dismissed. In DT66042, defendant pled no contest to driving on a revoked or suspended license (Veh. Code, 14601.1, subd. (a)); additional charges were dismissed. In SCR41050, defendant was found to be in violation of probation by virtue of his pleas. And all charges alleged in SCR54901 were dismissed. The details of these cases will not be discussed.
[3] The trial court also imposed a second no-contact order prohibiting defendant from having any contact at all with his brother, Steven. However, as defendant does not take issue with this no-contact order, we do not pass upon its validity.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
