Filed 12/18/14 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. JOSE ANGELESPARZA RAMIREZ, Defendant and Appellant. H040086 (Santa Clara County Super. Ct. No s. CC629060, CC962424)

Defendant Jose AngelEsparza Ramirez appeals from a judgment following his no-contest plea to one count of violating Pe nal Code section 288, subdivision (a) (lewd act on a child under 14) 1 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 th e present case, No. CC962424, involving a

1 All further statutory references are to the Penal Code.2 different victim, S. Defendant was charged by amended information in case No. CC962424 with one count of violating se ction 288, subdivisi on (b)(1), one count of violating section 288, subdivision (a), a nd two counts of viol ating 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 conv iction within the meaning of section 667, subdivisions (b )-(i) and section 1170.12. On June 12, 2013, in acco rdance with a negotiated disp osition, defendant admitted having violated probation in case No. CC6290 60, pleaded no contest to the first two counts charged in case No. CC9 62424, 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 defend ant’s motion to dismiss the strike ( People v

. Superior Court ( Romero ) (1996) 13 Cal.4th 497), senten ced defendant to 20 years in prison on counts one and two, and dismisse d the third and fourth counts of sexual penetration. Defendant filed a timely notic e of appeal and obtained a certificate of probable cause.
Discussion After imposing the 20-year sentence, the c ourt 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 resi de in a home with children under the age of 18 years . . . ‘with the exception of his own ch ildren.’ ” Defendant c ontends that both of these conditions were improper. We agree. When a defendant is placed on proba tion for any registrable sex offense, section 1203.1, subdivision (i)(2), authorizes th e court to order the de fendant to “have no contact with the victim in person, by telephon e or electronic means, or by mail.” But as this court emphasized in People v

. Scott (2012) 203 Cal.App.4th 13 03, 1325, “that statute applies only where a defendant is placed upon probation.” Here defendant was sentenced3 to prison. No other statutes authorize an or der prohibiting all contact in these procedural circumstances. The People appropriately concede that the no-contact order here was unauthorized. 2 The order instead should have been made pursuant to section 1202.05. That provision applies when the defendant is sentenced to prison for a specified sex offense against a child under the age of 18 years. In those cases “the court shall prohibit all visitation between the defendant and the child vi ctim.” (§ 1202.05, subd. (a), italics added.) 3 And because the legislative rest riction was intended to apply to child victims, the order cannot extend past the victim’s 18th birthday. (See People v

. Scott , supra , 203 Cal.App.4th at p. 1317 [“child victim” means “one who is a child at the time of a contemplated visit”].) The People suggest a modification of the no-contact order to prohibit only visitation while S. is a minor, and defendant do es not object to this proposed disposition. The People do not give way, however, in thei r response to defendant’s second contention, directed at the prohibition against residing with children other than defendant’s own. As defendant points out, the cour t is not authorized to set co nditions of parole, which the order effectively did, by imposing restricti ons on defendant after completion of his prison term. That function is reserved for the De partment of Corrections and Rehabilitation and the Board of Parole Hearings (Board). (See Cal. Code Regs., tit. 15, § 2000, subd. (b)(10); § 3000, subd. (b)(7), (8); Terhune v

. Superior Court (1998) 65 Cal.App.4th 864, 874 [“expansive authority” in former Bo ard of Prison Terms to “impose any parole

2 Because the sentencing order was unautho rized, defendant’s challenge may be made for the first time on appeal. ( People v

. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)

3 This statute provides: “Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section 261, 2 64.1, 266c, 285, 286, 2 88, 288a, 288.5, or 289, and the victim of one or more of those offenses is a ch ild under the age of 18 years, the court shall prohibit all visitation betw een the defendant and the child victim.”4 conditions it deems proper,” but conditio ns must be reasonable]; accord, In re E

. J . (2010) 47 Cal.4th 1258, 1283, fn. 10; see also In re Prather (2010) 50 Cal.4th 238, 255 [court may not intrude on Board’s stat utory authority to make deci sions on parole matters].) The People do not dispute this point; inst ead, they contend that defendant invited the error in the residence condition hearing by proposing the excepti on for living with his own children. 4
The People’s attempt to save the condition cannot succ eed by resorting to the doctrine of invited error. “[T] he imposition of a sentence fo r which there is no statutory authority is jurisdictional error [citation]; hence if such an error come s to our attention in a case pending before us, it is subject to correction.” ( People v

. Davis (1981) 29 Cal.3d 814, 827; In re Harris (1993) 5 Cal.4th 8 13, 842 [court may correct unauthorized sentence “ ‘whenever the error come s to the attention of the cour t’ ”].) In these instances “[a]ppellate courts are willing to intervene in th e first instance because such error is ‘clear and correctable’ independent of any factual issu es presented by the re cord at sentencing. [Citation.]” ( People v

. Scott (1994) 9 Cal.4th 331, 354; People v

. Smith (2001) 24 Cal.4th 849, 852.) This principle withstands not only assertions of forfeitu re for failure to object but also claims of invited error. ( In re Andrews (1976) 18 Cal.3d 208, 212 [doctrine of invited error does not apply to unauthorize d sentences, which are void and may be challenged at any time]; In re Birdwell (1996) 50 Cal.App. 4th 926, 931 [noting

4 After the court announced the condition th at defendant “not re side in a home with children under the age of 18 years,” a discussion was he ld off the re cord. Upon returning, the court announced that it agreed with a sugge stion made by defense counsel “that we add, quote, ‘with the exception of his own children,’ which I think is appropriate and that will be the court’s order.”5 Andrews ].) Accordingly, even if we were to conclude that the defense invited the error in imposing this post-release condition, 5 the error is correctable on appeal. Disposition The judgment is modified in the followi ng respects: (1) Th e no-contact order is amended to prohibit visitation with S. while sh e is under the age of 18 years; and (2) the restriction on residing with children under the ag e of 18 years is stri cken. The trial court shall prepare an amended abstract of ju dgment and forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

5 We do not accept this premis e in any event. There is no indication on the record that the defense’s suggested modifi cation of the condition was a de liberate tactical one that misled the court and thereby i nduced the error. (See, e.g., People v

. Coffman (2004) 34 Cal.4th 1, 49 [invited error applicable only if it is clear that counsel intentionally caused the trial court to err, for tactical reasons ra ther than out of ignorance or mistake].) Instead, it is apparent that the court erre d in following the re commendation of the probation officer that conditions applicable upon his release be imposed at sentencing._______ _______________ ___________ ELIA, J.

WE CONCUR:

________________ _______________ RUSHING, P. J.

________________ _______________ PREMO, J.