Filed 9/25/18 P. v. Benjamin CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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After defendant Leslie Ray Benjamin, Jr., pleaded guilty to sexually molesting the minor victim, the trial court imposed a 10-year state prison sentence whose terms and conditions included a no-contact order with no duration or limit specified. The court did not cite any statute or give any reasons to justify the order. The parties agree that the applicable statute, Penal Code[1] section 136.2, subdivision (i)(1) (hereafter “section 136.2(i)(1)”), leaves it to the court’s discretion whether to make a no-contact order and limits any such order to a maximum of 10 years.

Defendant contends we must remand because the court’s order was unauthorized and we cannot know what no-contact order, if any, the court would have made if it had understood the scope of its discretion. The Attorney General replies that defendant may not attack the order now because he did not do so below, but concedes that if the claim is not forfeited we must remand the matter so that the trial court may exercise its discretion under section 136.2(i)(1). We shall remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

An information accused defendant of continuous sexual abuse of E., a child under 14 (§ 288.5, subd. (a)--count I); forcible rape of E. (§ 261, subd. (a)(2)--count II); forcible oral copulation of E., a child over 14 (§ 288a, subd. (c)(2)-count III); sexual penetration by foreign object of E., a child over 14 (§ 289, subd. (a)(1)(C)-count IV); and two counts of lewd and lascivious acts upon E., a child under 14 (§ 288, subd. (a)--counts V & VI).

The People subsequently amended the information to add charges of committing a forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1)--count VII); sexual penetration with a foreign object (§ 289, subd. (i)--count VIII); and lewd and lascivious acts with a child aged 14 to 15 and greater than 10 years younger than defendant (§ 288, subd. (c)--count IX). Defendant pleaded guilty under People v. West (1970) 3 Cal.3d 595 (West) to counts V, VII, VIII, and IX in return for the dismissal of the remaining charges and a sentencing “lid” of 10 years in state prison, with all other terms open.

The Tehama County Sheriff’s Office report, which provided the factual basis for the plea, states that in January 2017 the victim, then aged 17, alleged her stepfather (defendant) had sexually assaulted and molested her between the ages of 10 and 12. She stated that when she was 10, defendant would touch her breasts and genitalia both outside and inside her clothes. On one occasion when she was sitting on the couch with a blanket over her, he reached under the blanket and began touching her vaginal area, then put his head under the blanket and started licking her vagina; when she got up and went into her bedroom, he followed her there and continued to put his mouth on her vagina and inserted his fingers inside her vagina. Once in October 2014 (which would have been later than the acts she described first), defendant walked into her bedroom and asked if she was “horny”; although she said she did not like “it” and did not want to “do things anymore,” he sat down on the bed, began touching her leg, placed his hands between her legs, climbed on top of her, grabbed her by the wrist and threatened to break it, and forcibly inserted his penis into her vagina. According to the victim, defendant would often talk about the sex acts, including criticism of her performance and attempts to teach her a “ ‘better’ ” way of doing things. She could probably recall 50 such events.

Interviewed by the police, defendant denied doing the charged acts, but a voice stress analyzer registered deception. After he was told of this result, he admitted “incidents,” but described them all as “educational” or as the result of manipulation by the victim, who initiated all the contacts.

Defendant told the probation officer that he considered himself different from a fellow jail inmate who had molested a five-year-old boy because “ ‘[t]here’s kids, then there’s little kids.’ ” He referred to the charges against him as “something that ‘supposedly’ happened.”

The probation report recommended imposing a state prison sentence “for the period of time prescribed by law.” The report also recommended the following order, without reference to any statute: “The defendant shall have no contact in any manner or fashion with the victim, nor shall he solicit anyone to do so in his behalf.”

At sentencing, the trial court denied defendant’s request for probation because he failed to show remorse or take responsibility for his actions. The court imposed the maximum 10-year sentence permitted under the plea agreement (eight years, the upper term, on count V, and eight months consecutive on each of the three remaining counts). The court also “further impose[d] the fines and conditions set forth on Pages 11, 12 and 13 [of the probation report] as if they were read into the record and incorporated into the judgment,” which included the open-ended no-contact order recommended by probation. Defense counsel did not object.

DISCUSSION

Section 136.2(i)(1) provides as relevant: “In all cases in which a criminal defendant has been convicted of. . . a crime that requires the defendant to register pursuant to subdivision (c) of Section 290,[[2]] the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. 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 a victim and his or her immediate family.”

The parties agree that section 136.2(i)(1) is the only possible statutory source of authority for the no-contact order issued by the trial court, but that the order violates the express terms of section 136.2(i)(1) because it does not state a duration and is facially open-ended. Furthermore, the court ignored the Legislature’s clear directive that a court must (a) determine whether to issue a no-contact order, (b) if it does so, determine the order’s duration (not to exceed 10 years), and (c) state reasons to justify that duration.

Because the order issued here had no time limit, it exceeded the court’s jurisdiction under section 136.2(i)(1) and constitutes an unauthorized sentence. Therefore, defendant did not need to object below to preserve the issue for appeal. (See People v. Robertson (2012) 208 Cal.App.4th 965, 995-996; see generally People v. Scott (1994) 9 Cal.4th 331, 354.)

Citing our decision in People v. Therman (2015) 236 Cal.App.4th 1276, 1279 (Therman), the Attorney General asserts that we must presume the trial court understood and correctly applied the law and intended to impose a no-contact order under section 136.2(i)(1), even though it did not cite the statute. But even if we indulged that presumption, it would not save the order, since the court neither imposed a duration nor gave any reasons to justify the order, as the statute also requires.

On remand, the trial court is directed to follow the plain terms of section 136.2(i)(1) by determining the duration of any no-contact order it may impose and explaining that duration in accordance with the factors spelled out in the statute.

DISPOSITION

The matter is remanded so that the trial court may exercise its discretion under section 136.2(i)(1). In all other respects, the judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Robie, J.

/s/

Renner, J.