People v. Bradley

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND BRADLEY, Defendant and Appellant.

D068632

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

October 19, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCN308946)

APPEAL from a judgment of the Superior Court of San Diego County, Honorable Carlos O. Armour, Judge. Affirmed in part and remanded with directions.

Hartman Law Office and Jared Michael Hartman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Scott C. Taylor and Laura A. Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

Raymond Bradley pleaded guilty to count 1 of inflicting a corporal injury resulting in a traumatic condition upon a present or former cohabitant, spouse or significant other (Pen. Code,¹ § 273.5, subd. (a)) and admitted the truth of an allegation that he inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Bradley also admitted the truth of allegations that he had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), which also constituted a strike (§§ 667, subds. (b)-(i), 668, 1170.12). All remaining counts and allegations were dismissed. Under the plea agreement, Bradley stipulated to a 16-year prison sentence consisting of six years on count 1, five years for the section 12022.7, subdivision (e) allegation, and five years for the serious felony. He received 1198 credits for time served. The trial court issued a 10-year criminal protective order preventing Bradley from having any contact with the victim.

Bradley contends the protective order is overbroad and vague without a requirement that violations be knowing and willful, the court exceeded its statutory authority in imposing certain conditions, and some conditions of the order were not included in the oral pronouncement, requiring that they be stricken. As we explain below, Bradley's challenges fail as to term Nos. 12, 13 and 14 of the protective order, but we remand the matter for the trial court to clarify its intentions regarding the remaining terms and conditions of the protective order, with some guidance relating to the order's specificity and the court's authority to impose certain of the conditions.

FACTUAL AND PROCEDURAL BACKGROUND

Bradley stipulated to the preliminary hearing transcript as constituting the factual basis for his guilty plea, and thus we take the facts from that hearing. In 2012, Bradley pushed his girlfriend into a concrete bench, causing her to fall and suffer injuries to her ribs requiring chest intubation and eight days of hospitalization.

At Bradley's June 2015 sentencing hearing, the People submitted the 10-year protective order and the court expressed its intention to follow the recommended conditions. Bradley was personally served with the order at the hearing. With respect to that order, the following colloquy occurred:

"The court: . . . [¶] . . . [¶] The court will also issue a protective order for a period of ten years effective today on behalf of [the victim]. The defendant [is] to have no personal, electronic, telephonic or written contact with her. He is to have no contact with that person through a third party except an attorney of record. He is not to come within a hundred yards of that person. [¶] Do you understand the terms of that order?

"[Bradley]: I do.

"The court: And you agree to abide by those terms?

"[Bradley]: Yes.

"The court: All right. Thank you. The court is executing the protective order."²

The protective order is on Judicial Council form CR-160 (rev. July 2014), a two-page, pre-printed form, the use of which is mandatory for a criminal protective orderinvolving domestic violence. This form, entitled, "Criminal Protective Order—Domestic Violence," permits the court to check boxes to identify under which statute(s) the order is issued, referring to sections 136.2, 1203.097, 273.5, subdivision (j), and 646.9, subdivision (k). Here, the court checked the box indicating the order was made under section 273.5, subdivision (j).³ The form incorporates conditions for which the court need not check a box to impose (term Nos. 7-10), and other conditions that the court must check a box to impose (term Nos. 11-18). In addition to term Nos. 12 through 14, which were check-marked and the court recited at the sentencing hearing, the order provides that Bradley:

"7. [M]ust not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of the protected person named above.

"8. [M]ust not own, possess, buy or try to buy, receive or try to receive, or otherwise obtain a firearm or ammunition. The defendant must surrender to local law enforcement, or sell to or store with a licensed gun dealer any firearm owned by the defendant or subject to his or her immediate possession or control within 24 hours after service of this order and must file a receipt with the court showing compliance with this order within 48 hours of receiving this order.

"9. [M]ust not attempt to or actually prevent or dissuade any victim or witness from attending a hearing or testifying or making a report to any law enforcement agency or person.

"10. [M]ust take no action to obtain the addresses or locations of protected persons or their family members, caretakers, or guardian unless good cause exists otherwise."

The order further contains checkmarks on the following conditions not orally recited by the court:

"17. The protected person may record any prohibited communications made by the restrained person.

"18. Other orders including stay-away orders from specific locations: home, employment, vehicle."

DISCUSSION

I. Oral Pronouncement of the Criminal Protective Order's Terms

We begin with Bradley's last argument, namely, that the court failed to make an oral pronouncement of term Nos. 7 through 10, 17 and 18 of the protective order and thus those terms must be stricken. In response, the People argue there is no distinction between the oral pronouncement and written order, and because Bradley was immediately served at the hearing with the protective order containing the terms, he is bound by all of them.

"In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324, italics omitted; see, e.g.,People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment does not control if different from the trial court's judgment and may not add to or modify the judgment].) As a general rule, "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385; People v. Contreras (2015) 237 Cal.App.4th 868, 880, citing People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Conflicting records should be harmonized if possible (People v. Harrison (2005) 35 Cal.4th 208, 226), but if they cannot be reconciled, whether one portion of the record should prevail as against contrary statements in another portion of the record depends on the circumstances of each particular case. (Ibid.; Contreras, at p. 880.) "[D]iscrepancies between an abstract and the actual judgment as orally pronounced are subject to correction at any time, and should be corrected by a reviewing court when detected on appeal." (Scott, at p. 1324.)

Here, the court did not orally pronounce all of the selected terms in form CR-160. The court recited term Nos. 12, 13, and 14. However, the remaining terms were not made in the oral pronouncement, even though the form criminal protective order includes them because they are either built into the order or the box relating to that term is checked. It is theoretically possible that the court purposely added conditions when it issued the order. In the case of probation terms, courts can change or add conditions, which as this court has explained "need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and theprobationer has a probation officer who can explain to him the contents of the order." (People v. Thrash (1978) 80 Cal.App.3d 898, 900-901; see also People v. Pirali (2013) 217 Cal.App.4th 1341, 1364.)⁴ But stay-away conditions of probation are distinct from protective orders, as a violation of a probation condition results in revocation of parole (People v. Petty (2013) 213 Cal.App.4th 1410, 1424, fn. 13), whereas a violation of a protective order is punishable as a misdemeanor, a felony or as contempt. (See § 166, subd. (c)(1); form CR-160, p. 2, Warnings and Notices.)

Though the record indicates Bradley was personally served with a copy of the protective order in this case, we cannot say whether the trial court intended to modify its oral pronouncement by some of the additional terms, or the additional terms were not a clerical error. There is no indication the challenged conditions were part of a group of standard conditions that the court intended to "spell[] out in detail" later. (People v. Thrash, supra, 80 Cal.App.3d at p. 901.) Because we cannot conclusively say what the trial court intended to impose, we remand the matter for the court to clarify its intent to impose the conditions not included in its oral pronouncement.

II. Overbreadth and Vagueness...