People v. Scott

203 Cal. App. 4th 1303, 138 Cal. Rptr. 3d 236, 2012 WL 615829, 2012 Cal. App. LEXIS 234
CourtCalifornia Court of Appeal
DecidedFebruary 28, 2012
DocketNo. H034764
StatusPublished
Cited by119 cases

This text of 203 Cal. App. 4th 1303 (People v. Scott) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Scott, 203 Cal. App. 4th 1303, 138 Cal. Rptr. 3d 236, 2012 WL 615829, 2012 Cal. App. LEXIS 234 (Cal. Ct. App. 2012).

Opinion

Opinion

RUSHING, P. J.

Penal Code section 1202.05 (section 1202.05) provides that whenever a defendant is sentenced to prison for a qualifying crime against a minor, the sentencing court must prohibit prison visitation between the defendant and his “child victim.” In sentencing defendant Michael Scott to prison for sexually abusing two minor females, the court below applied section 1202.05 to prohibit visitation with both victims, although one of them—his daughter, A.S.—was over the age of 18 at the time of sentencing. Defendant contends that this was error and that the court further erred to the extent that it prohibited “contact” between defendant and A.S. We sustain this contention. The danger addressed by section 1202.05 is that children’s caregivers, operating in a state of ignorance or denial, sometimes subject their charges to injurious encounters with their imprisoned abusers. This danger disappears when the victim is no longer subject to the control of his or her parents or guardians. We will also hold that these issues may and should be addressed despite the absence of an objection in the trial court, and that nothing in this record permitted the court to make an order prohibiting all communication between defendant and his daughter. We will direct a modification of the judgment to strike any restriction on visitation or communication between defendant and A.S., and will affirm the judgment as so modified.

[1308]*1308Background

Defendant was charged by amended information with eight counts sounding in child sexual abuse. The first two counts charged lewd and lascivious acts in 2008 upon M.M., a child of 11, in violation of Penal Code section 288, subdivision (a). The next six counts charged the same offense against defendant’s daughter A.S., between 2003 and 2005, when she was 12 or 13 years old. The ninth and 10th counts alleged more recent acts against A.S., i.e., unlawful penetration (Pen. Code, § 289, subd. (a)(1)) and oral copulation (id., § 288a, subd. (c)(2)). It was further alleged that by virtue of having committed the charged offenses against multiple victims, defendant was subject to a sentence of 15 years to life on each count. (Pen. Code, § 667.61, subds. (b), (e).)

Defendant entered negotiated pleas to all charges, with the understanding that he would be sentenced to prison for 30 years to life. By the time the probation report was prepared, A.S. was 18, whereas M.M. was 12. The report included a recommendation that “[t]he Court issue an order prohibiting visitation between the defendant and the child victim(s) pursuant to Section 1202.05 of the Penal Code.”

At the first of two sentencing hearings, the court stated among other tilings that it was “renewing]” a “protective order” that had “already been . . . filed and served.” Without identifying any specific “protected person,” the court proceeded to admonish defendant that he “must have no personal contact, telephonic, or written contact with the protected person,” “must have no contact with the protected person through a third party except an attorney of record,” and “must not come within 300 yards of the protected person.” The court also stated an intention to “issue an order prohibiting any visitation between you and the victim.” Although the court again neglected to specify the victim to whom this order would apply, it issued a written notice, naming only M.M., as a person as to whom it had made an order under section 1202.05 “prohibiting all visitation between defendant and the minor victim(s).”

About two months later, the court recalled the sentence under Penal Code section 1170, subdivision (d), for the stated purpose of modifying certain charges and assessments as well as “correcting] the protective order, which did not need to be issued.” During its initial pronouncement of sentence the court said, “I will now issue an order prohibiting any visitation between you and the child victim pursuant to Section 1202.05 of the Penal Code.” Shortly thereafter the prosecutor stated, “[J]ust to clarify because you used the singular term, is it actually the Court’s intention that both victims listed in the Complaint and Information be prohibited?” The court replied, “I used singular because one is an adult and one is a child, but if you would like, both are [1309]*1309included.” The prosecutor said, “I would,” whereupon the court said, “Then the Court order prohibiting visitation between the defendant and the victim includes both victims, and that is pursuant to Penal Code Section 1202.05.” The record does not contain a second formal order prohibiting visitation, but the abstract of judgment includes, among “other orders,” the statement, “No contact with victim PC1202.05.” A similar entry appears in the form minute order memorializing the sentence.

Defendant filed this timely appeal.

Discussion

I. Availability of Objection on Appeal

The chief question before us is whether the trial court erred in making an order prohibiting visitation between defendant and his adult daughter. A second question is whether the court could, on the present record, issue an order prohibiting defendant from “contacting]” her. Before reaching these questions we must consider respondent’s contention that defendant has forfeited the right to appellate review of these directives.

It is undisputed that defendant failed to object to the orders he now challenges. And it is of course a familiar rule that appellate courts will not review errors to which an objection could have been, but was not, made in the trial court. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 458.) The application of this rule to sentencing error is governed by People v. Scott (1994) 9 Cal.4th 331, 351-352 [36 Cal.Rptr.2d 627, 885 P.2d 1040] (Scott), and its progeny. That decision holds that while a trial court objection is generally necessary to preserve a claim of sentencing error for appeal, a “narrow exception” exists when the trial court has imposed an “ ‘unauthorized sentence.’ ” (Id. at p. 354.) A challenged sentence falls within this exception when it “could not lawfully be imposed under any circumstance in the particular case,” such that it is “ ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Ibid., quoting People v. Welch (1993) 5 Cal.4th 228, 235 [19 Cal.Rptr.2d 520, 851 P.2d 802].) In contrast, “claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p. 354.)

Defendant contends that the trial court had no power to make a no-visitation order as to a victim, like A.S., who was an adult at the time of sentencing. If this contention is correct, then the order barring visitation was, as to her, “unauthorized” for present purposes. Respondent appears to contend, however, that the order was not a “sentence.” Respondent first quotes [1310]*1310selectively from Scott, supra, 9 Cal.4th at page 354, to imply that a challenge only concerns an unauthorized sentence if it “ ‘violates mandatory provisions governing the length of confinement.’ ” Obviously the order here did not affect the length of defendant’s confinement. But what the court actually said in Scott is that “legal error resulting in an unauthorized sentence commonly occurs

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Cite This Page — Counsel Stack

Bluebook (online)
203 Cal. App. 4th 1303, 138 Cal. Rptr. 3d 236, 2012 WL 615829, 2012 Cal. App. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-scott-calctapp-2012.