Trial Court: Santa Clara County Superior Court No.: CC817184 Trial Judge: The Honorable Rise Jones Pichon (Santa Clara County Super. Ct. No. CC817184)
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
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.
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.
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 (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.) 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.) 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 selectively 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 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 [restitution fine]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255 [failure to impose mandatory parole restitution fine]; People v. Fond (1999) 71 Cal.App.4th 127, 134 [same].)
Respondent cites People v. Stowell (2004) 31 Cal.4th 1107, 1113 (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), the Supreme Court declined to employ Scott's classification scheme, invoking instead what it called "the general forfeiture rationale" to hold the objection lost. (Stowell, supra, 31 Cal.4th at p. 1113.) In the passage cited here by respondent, the court observed that "HIV testing does not constitute punishment" and therefore "cannot properly be considered a sentencing choice." (Ibid.) While this language indeed hints at an argument such as respondent's, we doubt that the Supreme Court would have us read the case in that manner. The cited remarks are so oblique as barely to rise even to the level of dictum. The court did not explain their relevance to its conclusion, or make them part of anything resembling a syllogistic exposition.*fn1 Indeed the ratio decidendi of the case is far from apparent. After the remarks cited by respondent, the court used similarly indirect language to suggest that an objection might be forfeited, notwithstanding the unauthorized sentence exception, whenever it could have been "easily remedied upon timely objection." (Id. at p. 1114.) Of course this characterization might apply to even the most serious excesses of jurisdiction. And like the court's oblique comments about punishment, it has never ripened into a rule.*fn2 Similarly, the court observed that "such procedural defects" as the error challenged there "do not implicate any fundamental or constitutional right that might excuse the failure to object." (Stowell, supra, 31 Cal.4th at p. 1114.) But it was not then the rule, and has not become the rule, that a sentence must offend a "fundamental or constitutional right" before it can be held "unauthorized" for purposes of the rule in Scott.
In any event, if we accepted respondent's reading of Stowell it would only bring the present case within "the general forfeiture rationale." (Stowell, supra, 31 Cal.4th at p. 1113 (conc. opn. of Baxter J.).) We take this phrase to mean the rules generally governing appellate cognizance of objections not raised in the trial court. Under those principles every appellate court has the discretionary power to entertain an objection first raised on appeal. (See People v. Williams (1998) 17 Cal.4th 148, 161, 162, fn. 6 [An appellate court is "generally not prohibited from reaching a question that has not been preserved for review"; whether to do so "is entrusted to its discretion"]; Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 421, fn. 7 [" 'Although appellate courts ordinarily will not consider a matter raised for the first time on appeal, whether to apply that rule is largely a question of the appellate court's discretion.' "].) This is particularly true where the issues raised "involve only questions of law based on undisputed facts." (People v. Rosas (2010) 191 Cal.App.4th 107, 115.)
Here, assuming the asserted error is not an "unauthorized sentence" for purposes of the Scott rule, it involves "pure questions of law" (People v. Welch, supra, 5 Cal.4th 228, 235), and is " 'clear and correctable' independent of any factual issues presented by the record at sentencing" (Scott, supra, 9 Cal. 4th at p. 354). It also concerns a matter apparently of first impression, and implicates interests that may not be readily vindicated by any other judicial process, particularly insofar as respondent's reading of the statute would erect a barrier to communication between some adult victims of crime and their abusers which the former may not invariably welcome, and which are not imposed on other adult victims of crime. We will therefore exercise our discretion to entertain the objection on the merits.
We also observe that this appeal is partly concerned with the trial court's written orders prohibiting "contact" between defendant and one or both of his victims. As to those orders defendant had no opportunity to object in the trial court. Nothing was said about "contact" at the second and final sentencing hearing. The closest the court came to mentioning the subject was to say that the "protective order" it had previously made "did not need to be issued." The no-contact order thus falls outside any rational rule of appellate forfeiture. The propriety of that order cannot be determined without addressing most or all of the issues implicated by the challenge to the no-visitation ...