People v. Scott

• Decision Date: 28 February 2012
• Docket Number: No. H034764.,H034764.
• Citation: 2012 Daily Journal D.A.R. 2702,203 Cal.App.4th 1303,138 Cal.Rptr.3d 236,12 Cal. Daily Op. Serv. 2494
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael SCOTT, Defendant and Appellant.

12 Cal. Daily Op. Serv. 2494

138 Cal.Rptr.3d 236

2012 Daily Journal D.A.R. 2702

203 Cal.App.4th 1303

The PEOPLE, Plaintiff and Respondent,

v.Michael SCOTT, Defendant and Appellant.

No. H034764.

Court of Appeal, Sixth District, California.

Feb. 28, 2012.

Vicki I. Firstman, Santa Clara, under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Michael Scott.

Edmund G. Brown, Jr., Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy

Attorney General, Christopher J. Wei, Deputy Attorney General, for Plaintiff and Respondent The People.

RUSHING, P.J.

Penal Code section 1202.05 (§ 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.

Background

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 tenth 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, subd. (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 things that it was “renew[ing]” 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 “correct[ing] 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 included.” 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 “contact[ing]” her. Before reaching these questions we must consider respondent's contention that 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 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, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) 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, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

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 selectively from Scott, supra, 9 Cal.4th at page 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040, 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 where the court violates mandatory provisions governing the length of confinement.” ( Ibid., fn. omitted, italics added.) The court did not suggest that an order must fit this description to constitute an unauthorized sentence, but merely gave it as a “common” example of such a sentence. This court and others have frequently held that directives not affecting the length of confinement fell within the “unauthorized sentence” rubric so as not to be forfeited under Scott. (E.g., People v. Rowland (1988) 206 Cal.App.3d 119, 126, 253 Cal.Rptr. 190 [restitution fine]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255, 82 Cal.Rptr.2d 231 [failure to impose mandatory parole restitution fine]; People v. Fond (1999) 71 Cal.App.4th 127, 134, 83 Cal.Rptr.2d 660 [same].)

Respondent cites People v. Stowell (2004) 31 Cal.4th 1107, 1113, 6 Cal.Rptr.3d 723, 79 P.3d 1030 ( Stowell ) for the proposition that “orders accompanying sentences that are not punishment are not unauthorized.” This is apparently meant to suggest that an order can only come within Scott's exception for unauthorized sentences if it constitutes “punishment” in its own right. The no-visit order fails this test, respondent asserts, because its purpose is not to punish defendant but to protect his victims from the emotional trauma of further contact with him.

We reject the premise that a sentencing directive cannot be viewed as an unauthorized sentence unless its purpose is punitive. The question in Stowell was whether the defendant could challenge on appeal the trial court's failure to record a finding of probable cause for an AIDS testing order, as required by the governing statute. Although such an error seems clearly subject to forfeiture under Scott as “procedurally ... flawed” ( Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040), the Supreme...