IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DARON LACLEATUS BARNES, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08646)
The opinion of the court was delivered by: Raye, P. J.
P. v. Barnes
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Daron Lacleatus Barnes pled no contest to one count of unlawful sexual intercourse with a minor more than three years younger than he. (Pen. Code, § 261.5, subd. (c).)*fn1 In exchange, a second count of that offense was dismissed. Imposition of sentence was suspended and defendant was placed on probation for five years on conditions including 120 days of incarceration. The prosecutor served upon defendant a "Protective Order in Criminal Proceedings (CLETS)," signed by the trial court, which barred him from contact with the complaining witness and her family.
On appeal, defendant contends the protective order must be stricken because the trial court lacked authority to impose an order barring him from contact with the complaining witness and her family. We shall affirm the judgment.
In September 2009 the father of the complaining witness learned that defendant, then aged 20, had impregnated his daughter, then aged 16. The sexual relationship began when defendant was aged 18 and the complaining witness was aged 15 or 16. The duo had sexual intercourse approximately 10 to 15 times in 2008 and ended their relationship in April 2009. The relationship produced two pregnancies that were terminated by abortion.
Defendant contends the no-contact order must be stricken because the trial court lacked authority to impose a criminal protective order barring him from contact with the complaining witness and her family. We disagree.
During the probation hearing, the prosecutor stated that she had "a written no contact order to serve" upon defendant. At the conclusion of the hearing, she noted for the record that she had personally served the "no contact order."
The "no contact order" consisted of Judicial Council form CR-160 (Rev. January 1, 2003), entitled "Protective Order in Criminal Proceeding (CLETS)." Beneath the heading, the form includes printed references to sections 136.2 and 1203.097, subdivision (a)(2). Below these references, the form contains four boxes: "Order Pending Trial," "Modification," "Order Post-trial Probation Condition," and "Domestic Violence Case (Pen. Code, § 13700)." Only the box for posttrial probation condition is checked.
The form orders defendant to "have no personal, telephonic, or written contact with the protected persons"; "have no contact with the protected persons . . . through a third party, except an attorney of record"; and "not come within 500 yards of the protected persons." The form was signed by the trial court and named the victim, certain relatives, their family, and their home as "protected persons" with whom defendant was ordered to have no contact. The form was not otherwise discussed during the hearing and no statutory basis for the order was identified.
Defendant contends, and the Attorney General concedes, neither statute listed below the heading (§§ 136.2, 1203.097) provides statutory support for the present order. We accept the Attorney General's concession.
As this court has explained, section 136.2 authorizes a criminal protective order only during the pendency of a criminal proceeding. (People v. Selga (2008) 162 Cal.App.4th 113, 118-119 (Selga).) Similarly, section 1203.097 authorizes, and in fact requires, a protective order where the defendant has been convicted of domestic violence and placed on probation. (Selga, at p. 119; see § 13700, subd. (b) [definition of "domestic violence"].) Because the criminal proceeding against defendant has concluded, and he has not been convicted of domestic violence as defined in section 13700, these statutory provisions do not authorize the order under review.
Thus, as in Selga, supra, 162 Cal.App.4th 113, the no contact order is not authorized by any statute listed on the printed form. In that case, the Attorney General contended the defendant was not prejudiced because the order could have been imposed as a probation condition under section 1203.1. We rejected the Attorney General's contention and remanded to the trial court with directions to exercise its discretion whether to issue the order under section 1203.1. (Selga, at p. 120.)
The form used in this case (form No. CR-160) is different than the one used in Selga (form No. MC-220). As the Attorney General notes, form No. CR-160 "'is utilized to issue: (1) criminal protective orders under section 136.2, (2) domestic violence protective orders under section 1203.097, or (3) "posttrial probation condition" orders.' (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)" Here, only the box for "post-trial probation condition" is checked; moreover, this is the only category that is applicable to the facts of this case. (Cf. Ponce, supra, at p. 382 [where no box was checked, court concludes order was issued under only applicable category].) Because the court issued the order as a condition of probation, the Attorney General reasons that it was authorized by section 1203.1.
Defendant disagrees, "because the form is misleading." In his view, a "reasonable person reviewing the form" would conclude that the order stemmed from sections 136.2 or 1203.097, subdivision (a)(2), which are listed on the form, and not from section 1203.1, which is not listed. According to defendant, this confusion is significant because it would permit an improper criminal action based on section 136.2 or 1203.097. We agree that a cursory review of the form could lead a casual reader to that conclusion. However, the present opinion effectively precludes an improper criminal action based on the cited statutes. No error or prejudice appears.
The judgment is affirmed.
We concur: NICHOLSON, J. BUTZ, J.