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Filed 10/21/22 P. v. Imel CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v. BRANDON MARK IMEL,

Defendant and Appellant. C095531
(Super. Ct. No. 21F7284)

Defendant Brandon Mark Imel pleaded no contest to inflicting corporal injury on his girlfriend. The trial court placed defendant on three years of formal probation and
ordered him , as a condition of probation, to have no contact with the victim except for
visitation as set forth in family court orders

. It also allowed the probation officer to prohibit contact

. On appeal, defendant contends the trial court’s orally pronounced protective order was inconsistent with a prejudgment protective order issued by the court , creating an2

unreasonable risk of his erroneous arrest . He further argues the trial court improperly
allowed the probation officer to override family court orders . Both parties agree the prejudgment protective order should be modified. We will direct t he trial court to modify the protective order to permit contact pursuant to family court orders allowing supervised
visits , and to reflect the correct statutory authorization. We also direct the trial court to modify the minute order. We affirm the judgm ent in all other respects.



### F ACTS AND 

### H ISTORY OF THE 

### P ROCEEDINGS The People filed a complaint on November 18, 2021, charging defendant with
in flicting corporal injury on his girlfriend (Pen. Code, § 273.5, subd. (a ) ; statutory section
citations that foll ow are to the Penal Code) and criminal threats ( § 422). In the infliction of corporal injury count, the People further alleged defendant had a prior conviction ( § 273.5, subd. (f)). On the same day, the trial court issued a prejudgment protective order pursuant to section 136.2

. In the protective order, t he trial court checked the “no

- contact” and “stay

away” provisions in items 12, 13, and 14, prohibiting defendant from making any contact with the victim or coming within 100 yards of h er. Item 16, which allows peaceful contact pursuant to family court orders as an exception to the “no

- contact” and “stay

away” requirements , was left unchecked. The order stated it takes precedence over any conflicting family court orders, and “[u]nless box a or b in item 16

. . . is checked, contact between [defendant] and [the victim] permitted by a Family

. . . court order for child custody or visitation must not conflict with the provisions of this order.” The order was set to expire three years from its issuance. On December 1, 2021, defendant pleaded no contest to infliction of corporal injury and admitted the prior conviction allegation in exchange for the dismissal of the criminal
threats count. The trial court placed defendant on three years of formal probation and imposed fees and fines.3

The court further ordered defendant , as a condition of probation, to “have no contact with [the victim] except as directed by [his] probation officer, and that would be with the probation officer ensuring strict adherence to the family law orders or a stricter adherence as directed by the probation officer.” In other w ords, the trial court explained, if the probation officer does not “s ee[] things the way that the family judge does” when executing an order from the family court, “he’s going to have the control to make the orders a little bit more difficult for [defendan t] simply because of the dangerousness of
the situation which is reflected in the [probation] report.” The trial court went on to quote the probation report: “ I t is abundantly clear the defendant and the victim should
have zero contact with one another f or the safety of their wellbeing, their children, and ultimately the entire community.” Defendant’s counsel objected to this order on the ground that it gave the probation officer the “authority to override a family law judge’s orders with respect to the no harassment.” The trial court disagreed, stating its order did not allow the probation officer to change visitation. But if a family court order allowed contact during visitation, the probation officer may “oversee [] defendant personally and order th at he have no contact with the victim.” Thus, the probation officer “will have the right to make orders as it relates to [defendant] that will potentially be different than what a family law judge would allow.” The minute order stated only that defendan t cannot contact the victim “without the prior written approval of the Probation Officer

– except as directed by his probation officer.” It made no mention of contact between defendant and the victim pursuant to family court orders. Defendant timely appealed.4 

### D ISCUSSION On appeal, defendant contends the protective order must be stricken or modified
because : (1) it improperly delegate d to the probation officer the authority to make orders that conflict with the orders from the family court; (2) the prejudgment protective order conflicts with the trial court’s oral pronouncement by prohibiting contact without exception s ; and (3) the disc repancy between the prejudgment protective order and the court’s oral pronouncement creates an unreasonable risk that he may be erroneous ly
arrested. He requests that we direct the trial court to modify its order by (1) adding an exception to item 14 that allows defendant to come within 100 yards of the victim when “ordered by the probation officer, approved by the trial court, and entered into the
CLETS , ” and (2) checking item 16 of the protective order. The People agree the order should be modified as proposed by defendant. We conclude the court’s delegation of authority to the probation officer was improper and note several discrepancies between the trial court’s oral pronouncement and its written
orders . We will direct the trial court to modify the protective order and minute order.
The t rial court’s oral pronouncement is the rendition of judgment. ( People v.
Mesa (1975) 14 Cal. 3d 466 , 471.) “Where there is a discrepancy between the oral pronouncement of judgment and the minute order

. . . , the oral pronouncement controls.” ( People v. Zackery (2007) 147 Cal. App.4th 380, 385.)

“ It is well settled that courts may not delegate the exercise of their discretion to probation officers.” ( In re Pedro Q. (1989) 209 Cal. App.3d 1368, 1372.) Althoug h probation officers have wide discretion to enforce probation conditions , “they may not create conditions not expressly authorized by the court.” ( People v. O’Neil (2008)
165 Cal. App.4th 1351, 1358.) Here, the trial court orally pronounced the protecti ve order , as a condition of probation, permitting contact between defendant and the victim pursuant to family court5

orders. Its written orders, however, conflict with the oral pronouncement in several ways. First, the prejudgment protective order stated it was issued under section 136.2, which authorizes protective orders that are “operative only during the pendency of the criminal proceeding s and as prejudgment orders.” ( People v. Selga (2008)
162 Cal. App.4th 113, 118

- 119; accord, People v. Corrales (2020) 46 Cal. App.5th 283, 287 [“section 136.2 is not the proper vehicle for obtaining a postjudgment restraining
order ” ] .) The orally pronounced order, on the other hand, was issued under section
1203.097 as a condition of probation . ( § 1203.097, subd. (a)(2) [requiring a criminal protective order where a defendant is convicted of a crime of domestic violence and placed on probation].) Se cond, the prejudgment protective order prohibited contact between defendant and the victim without exceptions. Third , the minute order did not reflect that contact was allowed pursuant to family court orders.
The trial court also erred in allowing the probation officer to “make orders” to defendant “that will potentially be different than what a family law judge would allow”

“ because of the dangerousness of the situation.” We recognize the trial court’s concern s , but this order improperly authorized the probation officer to disregard family court
orders

. The parties propose that we modify the protective order by chec king item 16, which allows contact pursuant to family court orders, and by adding an exception to item
14 permitting defendant to come within 100 yards of the victim as “ordered by the probation officer, approved by the trial court, and entered into the CL ETS.” This change, however, still allows the probation officer to prohibit contact when family court orders
state otherwise. Thus, to ensure proper delegation of authority and the safety of all involved, the protective order should be modified by checki ng item 16 and noting the exception applies only to supervised exchange of children and court

- ordered supervised visitation as stated in orders from the family court. Because item 16 serves as an exception to the stay

- away requirement in item 14, we need not provide a separate exception to item 14. We also6

order the trial court to modify the protective order to reference the proper statutory authorization, section 1203.97 and to correct the minute order

. 

### D ISPOSI TION The judgment is affirmed. The trial court is directed to modify the protective
order by checking item 16 and adding that the exception is for “ [ supervised ] safe exchange of children and court

- ordered [ supervised ] visitation” only

. If there exists a
famil y court order that the trial court decide s defendant should follow, the court should check item 16.a. and specify the case number and the date of the order

. Otherwise , it should check item 16.b. The court should further correct the order to reflect the p roper statutory authorization, section 1203.097

. Finally, the trial court is directed to prepare a minute order reflecting the changes.

HULL , Acting P. J.

We concur:

DUARTE , J.

KRAUSE , J.