People v. Vega CA3

Filed 5/19/14 P. v. Vega CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador) ----

THE PEOPLE, C073239

Plaintiff and Respondent, (Super. Ct. No. 11CR18564)

v.

FRANK VEGA, JR.,

Defendant and Appellant.

A jury found defendant Frank Vega, Jr., guilty of the rape of an unconscious person after hearing evidence that he engaged in intercourse with a sleeping victim who had engaged in drinking games at defendant’s house with defendant’s sons and others. The trial court sentenced defendant to six years and suspended execution of the sentence. The court placed defendant on probation for three years and, among other things, ordered defendant to have no contact with the victim. In addition to the no-contact order as a condition of probation, the court issued a criminal protective order pursuant to Penal

1

Code1 section 136.2; however, the signed written order indicates it was issued pursuant to section 646.9, subdivision (k). Defendant and the People agree the criminal protective order is unauthorized by either section 136.2 or section 646.9, subdivision (k) and must be stricken. Defendant did not object to the imposition of the criminal protective order at trial. However, the objection is not forfeited if the sentence was unauthorized. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354.) We find the order is unauthorized and modify the judgment to strike the order.2 DISCUSSION The court orally pronounced it would and then did issue a criminal protective order pursuant to section 136.2. However, the written order, signed by the judge, indicates the criminal protective order was issued pursuant to section 646.9, subdivision (k), which only applies to an individual convicted of stalking. Since defendant was not charged with or convicted of stalking, any protective order issued pursuant to section 646.9 would clearly be unauthorized. (See People v. Robertson (2012) 208 Cal.App.4th 965, 996 [where cited statute does not authorize imposition of protective order against the defendant, the court cannot impose it].) When there is a discrepancy between the oral pronouncement of a sentence and the written order, the criminal court’s oral pronouncement controls because it “constitutes the rendition of judgment,” whereas “the written document is ministerial.” (People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2; accord People v. Jones (2012) 54 Cal.4th 1, 89 [oral pronouncement is judgment and written abstract of judgment does not add to