People v. Ross CA4/1 ( 2024 )

Filed 2/2/24 P. v. Ross CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081673
Plaintiff and Respondent,
v. (Super. Ct. No. SCE406629)
MARIEESE ANTOINE ROSS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Frank L. Birchak, Judge. Remanded with directions and affirmed in all other
respects.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Vincent
LaPietra and Daniel Rogers, Deputy Attorneys General, for Plaintiff and
Respondent.
MEMORANDUM OPINION
Marieese Antoine Ross appeals from the criminal protective order
entered against him, claiming one of its terms is inconsistent with the trial
court’s oral pronouncement of his sentence. Ross requests we correct the
error or alternatively remand for the limited purpose of correcting it. The
Attorney General concedes the ambiguity but claims it should be redressed
on limited remand. We find this matter appropriately resolved by
memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th
847) and remand solely to clarify whether term number 10 of the criminal
protective order applies to Ross.
We agree with the parties that there is an ambiguity between the
criminal protective order, issued on Judicial Council Form CR-160, and the
trial court’s oral pronouncement at Ross’ sentencing. Term numbers 7
through 10 presumptively apply. However, term number 10, which restricts
a defendant from obtaining “the addresses or locations of protected persons or
their family members,” does not apply if a checkbox is marked showing the
court finds “good cause” not to impose it.
At Ross’ sentencing, the trial court orally read term numbers 7 through 9 into
the record. The court did not read term number 10 into the record,
2
suggesting it did not intend to impose it; however, as shown above, the
checkbox for term number 10 on the issued criminal protective order is
unmarked. Thus, the oral pronouncement and the protective order appear to
conflict.
Generally, the oral pronouncement of a sentence controls when it
conflicts with the written record. (People v. Zackery (2007) 147 Cal.App.4th
380, 385.) Conflicting records should be harmonized if possible (People v.
Harrison (2005) 35 Cal.4th 208, 226), but if they cannot be, the circumstances
of the case determine which prevails. (People v. Contreras (2015)
237 Cal.App.4th 868, 880.)
Here, the trial court was aware that Ross and the protected person
were living together, recently engaged, and raising four children. Thus,
imposing term number 10 appears inconsistent with the circumstances
known to the court at sentencing. We decline, however, Ross’ invitation to
directly correct this apparent discrepancy. On this record, we cannot
definitively determine the court’s intention as to term number 10. In matters
where the trial court’s intention is ambiguous, we do not substitute our
judgment for the trial court’s. (See People v. Price (2004) 120 Cal.App.4th
224, 243). Accordingly, whether term number 10 applies to Ross is best
decided by the trial court on remand.
3
DISPOSITION
We remand this matter for the limited purpose of clarifying whether
term number 10 of the Judicial Council Form CR-160 criminal protective
order, executed on February 3, 2023, applies to Ross. In all other respects,
we affirm the judgment.
CASTILLO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
4