People v. Shippen CA3
C079154
Cal. Ct. App.Aug 22, 2016Background
- Defendant Cameron Shippen pleaded no contest to lewd conduct with a child (Pen. Code § 288(a)) and admitted an allegation of substantial sexual conduct; sentence agreed up to 8 years; court imposed 6 years.
- At sentencing the court entered an unlimited-duration no-contact order prohibiting any contact with the victim and cited Penal Code § 1202.05 (which mandates no visitation between defendant and child victims of certain sex offenses).
- Defense did not object to the no-contact order at sentencing; the minute order and a separate written order cited § 1202.05 as authority for prohibiting contact while defendant was in custody.
- The People conceded § 1202.05 authorizes only no-visitation, not a broader no-contact order; defendant argued the no-contact order was unauthorized and that he lacked notice it might be imposed (seeking plea withdrawal).
- Court also addressed defendant’s claim for presentence custody credit; parties agreed defendant was entitled to one additional day of custody credit (total 608 days).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the no-contact order was authorized under § 1202.05 | Court’s oral and written orders relied on § 1202.05; People asserted the order was proper or should be treated as authorized under § 136.2(i)(1) | § 1202.05 authorizes only no-visitation, not a general no-contact order; therefore the order was unauthorized | § 1202.05 does not authorize a no-contact order; the order imposed under § 1202.05 was erroneous |
| Whether the error was forfeited for failure to object | People argued no objection so issue forfeited | Defendant relied on statutory-authorization precedent to challenge without objection | No forfeiture; court reviewed the statutory-authority claim on the merits (forfeiture inapplicable) |
| Whether defendant may withdraw his plea because of the no-contact order | People argued the order was permissible and did not affect plea validity | Defendant claimed lack of notice and that the order increased punishment, meriting plea withdrawal | No. The no-contact order (if properly imposed under § 136.2(i)(1)) is collateral, nonpunitive; plea withdrawal not required |
| Whether appellate court should modify the order to cite § 136.2(i)(1) or remand for exercise of discretion | People asked court to simply correct the statute to § 136.2(i)(1) and affirm | Defendant sought remand so trial court can consider § 136.2(i)(1) factors and duration | Remand required. Because the trial court did not exercise the discretionary analysis § 136.2(i)(1) mandates (and the order was unlimited in duration though § 136.2(i)(1) limits duration to 10 years), the no-contact order is reversed and the matter remanded for the trial court to consider and, if appropriate, impose a § 136.2(i)(1) order (max 10 years). |
Key Cases Cited
- People v. Kunitz, 122 Cal.App.4th 652 (2004) (statutorily unauthorized sentencing error may be reviewed despite lack of trial objection)
- People v. Scott, 203 Cal.App.4th 1303 (2012) (distinguishing no-visitation orders from broader no-contact orders)
- People v. Belmontes, 34 Cal.3d 335 (1983) (sentencing court must exercise informed discretion; remand required when discretion not exercised)
- People v. Brown, 147 Cal.App.4th 1213 (2007) (discussing when remand is required for exercise of sentencing discretion)
- People v. Villalobos, 54 Cal.4th 177 (2012) (distinguishing direct versus collateral consequences of a plea)
- People v. Morgain, 177 Cal.App.4th 454 (2009) (counting custodial days for presentence custody credit)