Error and/or relief
The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.
The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.
We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.
First Holding:
Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.
We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 354
People v. Smith (2001) 24 Cal.4th 849, 852
Second Holding:
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. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.
Authority:
People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6
People v. Scott (1994) 9 Cal.4th 331, 354
Third Holding:
The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.
Authority:
PEN 1203.097
PEN 1202.05(a)
PEN 646.9(k)
PEN 1203.1(j)
PEN 136.2
Fourth Holding:
Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.
An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.
The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.
Authority:
People v. Ponce (2009) 173 Cal.App.4th 378, 383-384
Fifth Holding:
The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.
Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.
Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.
Authority:
PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]
PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]
CCP 527.6(a)