People v. Ramirez CA6

Filed 12/18/14 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040086 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. CC629060, CC962424)

v.

JOSE ANGELESPARZA RAMIREZ,

Defendant and Appellant.

Defendant Jose AngelEsparza Ramirez appeals from a judgment following his no-contest plea to one count of violating Penal Code section 288, subdivision (a) (lewd 1 act on a child under 14) and one count of violating section 288, subdivision (b)(1) (forcible lewd act on a child under 14). On appeal, defendant asserts sentencing error in two orders: that he have no contact with the victim and that he not reside in a home with children under 18 except for his own children. We find defendant’s contentions to be meritorious and will therefore modify the judgment. Background When defendant was charged in this case he was on three years’ formal probation for committing a lewd act on a child under 14, to which he had pleaded no contest in January 2007 (case No. CC629060). In October 2009 the court revoked probation in that matter when the charges were filed in the present case, No. CC962424, involving a

1 All further statutory references are to the Penal Code.

different victim, S. Defendant was charged by amended information in case No. CC962424 with one count of violating section 288, subdivision (b)(1), one count of violating section 288, subdivision (a), and two counts of violating section 288.7, subdivision (b) (sexual penetration of a child under 10). The information further referred to case No. CC629060 in alleging a prior strike conviction within the meaning of section 667, subdivisions (b)-(i) and section 1170.12. On June 12, 2013, in accordance with a negotiated disposition, defendant admitted having violated probation in case No. CC629060, pleaded no contest to the first two counts charged in case No. CC962424, and admitted the strike allegation. On August 16, 2013, the trial reinstated and then terminated probation in case No. CC629060. As to case No. CC962424, the court denied defendant’s motion to dismiss the strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), sentenced defendant to 20 years in prison on counts one and two, and dismissed the third and fourth counts of sexual penetration. Defendant filed a timely notice of appeal and obtained a certificate of probable cause. Discussion After imposing the 20-year sentence, the court made several orders which included the following: (1) “the defendant shall have no contact with the victim [S.] or her family”; and (2) “the defendant shall not reside in a home with children under the age of 18 years . . . ‘with the exception of his own children.’ ” Defendant contends that both of these conditions were improper. We agree. When a defendant is placed on probation for any registrable sex offense, section 1203.1, subdivision (i)(2), authorizes the court to order the defendant to “have no contact with the victim in person, by telephone or electronic means, or by mail.” But as this court emphasized in People v. Scott (2012) 203 Cal.App.4th 1303, 1325, “that statute applies only where a defendant is placed upon probation.” Here defendant was sentenced