Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR139296.
Margulies, Acting P.J.
Defendant was placed on probation after he pleaded no contest to child and spousal abuse, and a restraining order precluding further abuse of his wife was entered pursuant to Penal Code section 1203.097. Defendant’s probation was later terminated when he was sentenced to prison in connection with unrelated crimes. Following his release from prison, the trial court entered a second, similar restraining order under the authority of section 273.5, subdivision (i) (hereafter section 273.5(i)). Defendant contends the trial court lacked jurisdiction to enter the second restraining order. We agree and vacate the order.
All statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged in an information, filed March 17, 2008, with felony child abuse, later amended to a misdemeanor (§ 273d, subd. (a)), and felony spousal abuse (§ 273.5, subd. (a)). The trial court suspended imposition of sentence and placed defendant on four years’ probation after he pleaded no contest to both charges. As part of defendant’s probation, the court imposed a mandatory restraining order under section 1203.097, subdivision (a)(2) that precluded further harassment of or violence against his wife.
Soon after, defendant was arrested on charges unrelated to domestic violence. When he was sentenced to prison on those charges in January 2009, his probation in this case was revoked and terminated, without the imposition of a prison sentence.
On August 5, 2009, defendant filed a request to have the section 1203.097 restraining order vacated because he wanted to reunite with his wife and children following his release from prison. Although the restraining order did not, by its terms, preclude defendant from living peacefully with his wife, his parole officer had construed the restraining order as a “no contact” order, taking the position that “if the [restraining order] is not vacated, then the defendant and his wife will not be able to live together.”
At the hearing on the motion, the prosecutor conceded the restraining order had expired when defendant’s probation was terminated. Because the prosecutor believed defendant’s wife needed continued protection, however, she presented the court with a new but virtually identical order, arguing its entry was authorized by section 273.5(i). Subdivision (i), which became effective in 2008 (Stats. 2007, ch. 582, § 1, p. 3795), requires the trial court in a domestic violence case to “consider issuing an order restraining the defendant from any contact with the victim.” (§ 273.5, subd. (i).) Such a restraining order “may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation.” (Ibid.) Defense counsel argued section 273.5 did not provide any “specific statutory authority” for a non-harassment order and, in any event, the court’s jurisdiction over defendant terminated with the revocation of his probation.
The court, purporting to act under subdivision (i) of section 273.5, entered the new restraining order. The material terms of the order were unchanged from those of the prior order issued under section 1203.097.
Both orders were issued on Judicial Council Forms, form CR-160. Because the form had been updated in the interim, there were a few minor changes in the text. Among the changes from the prior revision in 2007, was the addition of a box permitting the issuance of an order pursuant to section 273.5(i).
II. DISCUSSION
Defendant contends the trial court lacked the authority to impose the restraining order because the court’s jurisdiction over him ended when his probation was revoked and terminated in January 2009.
There seems to be no dispute that the prosecutor was correct in conceding that the original restraining order, issued pursuant to section 1203.097, terminated upon the revocation of defendant’s probation. In any event, the Attorney General does not raise section 1203.097 as a legal basis to justify the present restraining order.
The Attorney General does not contest defendant’s claim that the court lacked jurisdiction over him when it imposed the restraining order, and we find the argument well taken. A trial court’s jurisdiction over a criminal defendant ends with the termination of probation or the commitment of the defendant to serve a prison sentence. (People v. Howard (1997) 16 Cal.4th 1081, 1093; In re Daoud (1976) 16 Cal.3d 879, 882; In re Griffin (1967) 67 Cal.2d 343, 346.) When the trial court terminated defendant’s probation in this case and committed him to prison on the other charges, it lost jurisdiction to enter the restraining order at a later date.
Instead of contesting the loss of jurisdiction, the Attorney General argues we should view the trial court’s failure to impose the restraining order at the time it terminated defendant’s probation as the imposition of an illegal sentence, which may be corrected by a court at “any time.” (E.g., People v. Reyes (1989) 212 Cal.App.3d 852, 857.) Because the trial court erred in failing to impose the restraining order at the time probation was terminated, the Attorney General argues, we should either affirm the later imposition of the restraining order as the correction of this error or remand for the court to reconsider whether to enter a restraining order pursuant to section 273.5(i).
Contrary to the Attorney General’s claim, not every erroneous sentence can be freely corrected after the fact. In People v. Smith (2001) 24 Cal.4th 849, the court explained that sentencing errors, like other judicial errors, are subject to the general rule requiring claims of error to be preserved by objection and asserted in a timely appeal. (Id. atp. 852.) The principle that an “illegal” sentence can be raised and corrected at any time is actually “a narrow exception to the waiver rule for ‘ “unauthorized sentences” or sentences entered in “excess of jurisdiction.” ’ [Citation.] Because these sentences ‘could not lawfully be imposed under any circumstance in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ ” (Ibid.) In contrast, all “ ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review.” (Ibid.)
There is no doubt the trial court’s ruling falls into the latter category. Under section 273.5(i), the court was required only to “consider” entering a restraining order, not to enter one, and the trial court would not have abused its discretion had it declined to enter such an order. As a result, the trial court’s failure to issue a restraining order under section 273.5 when it terminated probation did not result in an “unauthorized” sentence that could not lawfully be imposed under these circumstances. (Compare, e.g., People v. Cates (2009) 170 Cal.App.4th 545, 552 [trial court entered unauthorized sentence when it failed to impose mandatory terms of probation].)
Further, the trial judge did not mention a section 273.5 restraining order at the time of sentencing. There is no way to know whether he considered such an order and elected not to impose it or whether he simply overlooked the possibility. For this reason, the error, if error it was, involved the trial court’s “ ‘failure to properly make or articulate its discretionary sentencing choices.’ ” (People v. Smith, supra, 24 Cal.4th at p. 852.) Because no objection was made at the time of sentencing to the trial court’s failure to enter a restraining order or to explain its failure, the issue has been waived.
The Attorney General cites a number of cases holding that a trial court is required to exercise its discretion when imposing sentence and argues the lack of any indication in the record that the trial court considered entering a section 273.5 restraining order evidences a failure to exercise discretion. (See, e.g., People v. Tang (1997) 54 Cal.App.4th 669, 679, and cases cited therein; People v. Surplice (1962) 203 Cal.App.2d 784, 791–792.) In the cases relied upon, however, the trial judges were reversed for failing to exercise their own discretion, instead relying on the reasoning of others in imposing sentence. In Surplice, for example, the sentencing judge said he had not made his own evaluation of the defendant’s case but was imposing the sentence the judge who conducted the trial thought appropriate. The appellate court reversed, holding that the sentencing judge was required to exercise independent discretion in imposing sentence. (Id. at p. 792.) Contrary to the Attorney General’s argument, these cases do not pronounce a general rule that a trial judge is required to consider every discretionary sentencing option at the time of sentencing.
Because we find the trial court lacked jurisdiction to enter the restraining order, we need not reach defendant’s alternate contention that the order was not authorized by the terms of section 273.5(i).
III. DISPOSITION
The trial court’s “Criminal Protective Order-Domestic Violence, ” entered and filed on August 31, 2009, is vacated.
We concur: Dondero, J., Banke, J.