Filed 9/17/26 P. v. Gaspar CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE H052589
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2013169)
v.
MODESTO RUBIO GASPAR
Defendant and Appellant.
Modesto Rubio Gaspar (Rubio) was convicted of kidnapping, assaulting, and
sexually molesting one minor as well as assaulting and sexually molesting another minor,
and the trial court sentenced him to an aggregate term of 37 years to life in prison. On
appeal, Rubio does not challenge his convictions. Instead, he challenges several aspects
of his sentence.
As explained below, we uphold the longest aspect of Rubio’s sentence: the
consecutive terms for his kidnapping and molesting offenses against Jennifer Doe, which
account for 22 of the 35 years to life of his aggregate sentence. We also uphold the trial
court’s decision to impose concurrent sentences, rather than staying them under Penal
Code section 654, for Rubio’s convictions for assaulting Jennifer Doe and Sara Doe.
However, we agree with Rubio that (1) he should have been awarded presentence work
and conduct credits for his offenses against Sara Doe, and (2) the trial court’s no-
visitation order should not have included Sara Doe.
Accordingly, we reverse the judgment and remand to the trial court with
instructions to grant Rubio presentence work and conduct credits on counts 5 and 6 of the
second amended information, and to remove Sara Doe from the no-visitation order.
I. BACKGROUND
This case involves two incidents more than 13 years apart. The first incident
occurred in either 2006 or 2007, and it involved Sara Doe who was 10 years old at the
time. One day Rubio, who was married to Sara’s aunt, forced Sara onto a bed, crawled
on top of her, and lifted up her skirt. Sara pushed Rubio aside and ran out of the
bedroom, but said nothing about the incident for five years. Then, after revealing the
incident in a fit of anger, she reported it to the police. However, nothing was done until a
second incident in 2020.
The second incident involved Jennifer Doe, who was 12 years old at the time.
Rubio, who was living in the same house as Jennifer, grabbed her wrist and led her into
his bedroom, where he pushed her onto the bed, molested her, and tried to pull her pants
down to have intercourse with her. However, Rubio was interrupted by Jennifer’s mother
knocking on the door to the bedroom and calling for Jennifer. Jennifer revealed what had
happened, and her mother called the police who investigated immediately and later
arrested Rubio.
A. The Charges
In October 2020, a complaint charged Rubio with kidnapping Jennifer Doe,
assaulting her, and committing two lewd acts against her by force. The following year,
the complaint was amended to add a charge for assaulting Sara Doe “[o]n or about and
between August 12, 2006 and August 11, 2007.” In March 2024, a second amended
information, the operative pleading, was filed.
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The second amended information had six counts: (1) kidnapping Jennifer Doe to
commit a lewd act (Pen. Code, § 209, subd. (b)(1)); (2) assault with intent to commit a
felony on a victim (Jennifer Doe) under 17 years of age (id., § 220, subd. (a)(2));
(3) committing a lewd or lascivious act on a child under 14 years old (Jennifer Doe) by
force (id., § 288, subd. (b)(1)); (4) committing a second lewd or lascivious act on a child
under 14 years old (Jennifer Doe) by force (id., § 288, subd. (b)(1)); (5) assault (on Sara
Doe) with intent to commit a felony (id., § 220, subd. (a)); and (6) committing a lewd or
lascivious act on a child under 14 years old (Sara Doe) by force (id., § 288, subd. (b)(1)).
(Subsequent undesignated statutory references are to the Penal Code.) The second
amended information also alleged that the lewd acts charged in counts 3, 4 and 6 were
committed “against more than one victim within the meaning of Penal Code
sections 667.61(b) and 667.61(c).”
B. The Trial
The case went to trial in March 2024. The prosecution’s main witnesses were
Jennifer Doe and Sara Doe.
1. Sara Doe
Sara Doe testified that her parents had always been separated but had joint custody
of her. As a consequence, she frequently stayed with her father in her grandfather’s
house, where her father lived. Before marrying Rubio, Sara’s aunt Katie also lived there.
When Sara was 10 years old, while she was in her grandfather’s house watching a
movie with a cousin, Rubio gestured for her to come with him, and he led her to another
bedroom. Once Sara was inside the room, Rubio closed the door and stood in front of
her. Rubio approached and backed Sara into the bed until her back was on the bed.
Rubio then crawled on top of Sara and straddled her with his arms and legs. After
“shushing” Sara. Rubio put his hands around her waist, unbuttoned her skirt, and lifted
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it. Fearing that Rubio was going to rape her, Sara pushed him away and ran from the
bedroom.
Afterwards, Sara pretended that nothing had happened because she feared that if
she said anything it would rip the family apart and her father would lose custody of her.
Indeed, Sara did not disclose the incident for five years. However, in 2012, when she
was 15 years old, she got into a fight with her mother over the mother’s new boyfriend.
Later, Sara exploded and told her grandmother and her godmother about the incident with
Rubio. Eventually Sara told her mother as well, and they went to the police department
to report the incident.
2. Jennifer Doe
In October 2020, when Jennifer Doe was 12 years old, she was living with her
mother and sister in a three-bedroom house with five or six other people. One of those
people was Rubio.
One day, when Jennifer went into the kitchen, Rubio approached and asked her to
go into his bedroom with him. Jennifer said “no,” but Rubio grabbed her around the
wrist and led her into his bedroom. Rubio then locked the door.
Holding onto her waist, Rubio walked Jennifer to the bed, pushed her onto it, and
began touching her thighs and then her chest and waist. Rubio then began rubbing his
penis against her “private part.” Rubio also kissed Jennifer on the lips and neck as well
as biting her lip. In addition, Rubio asked if he could have intercourse with her, and he
tried to pull Jennifer’s sweatpants down, but she held onto them. Jennifer tried to push
Rubio off, but he was too heavy for her to do so.
However, Jennifer’s mother knocked on the door and called for her. Rubio
stopped, and when Jennifer’s mother asked what Jennifer was doing in Rubio’s room,
Rubio responded that he had been asleep.
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A few minutes after leaving Rubio’s room and going to the living room, Jennifer
began crying and told her mother what had happened. Her mother called the police, and
Jennifer spoke with the 911 dispatcher. Law enforcement officers arrived shortly
thereafter.
3. Other Prosecution Witnesses
The prosecution also presented testimony from Sara’s grandmother, who described
when Sara disclosed that she had been molested, Jennifer’s sister, and law enforcement
officers, who interviewed Sara in 2012 and responded to the report concerning Jennifer
Doe in October 2020. In addition, the prosecution presented testimony from a clinical
psychologist who testified concerning Child Sexual Abuse Accommodation Syndrome,
including why victims of child sexual abuse often delay disclosing the abuse, frequently
out of worry about its impact on their family.
4. The Defense
Although Rubio did not testify in his defense, he presented testimony from his
wife, Sara’s aunt, who testified that Rubio rarely visited the house where Sara stayed with
her father. Rubio also presented testimony from a resident in the house where he was
staying in 2020 who overheard parts of the incident with Jennifer. Finally, Rubio
presented testimony from the apparent owner of the house, who testified that she had
allowed Jennifer’s mother to stay on a temporary basis and before the incident with
Rubio had asked Jennifer’s mother to leave the house.
5. The Verdict
The jury found Rubio guilty on all counts. The jury also found true the multiple
victim allegations on the lewd act counts.
C. Sentencing
On September 20, 2024, the trial court sentenced Rubio to an aggregate
indeterminate term of 37 years to life. On count 1, the kidnapping charge concerning
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Jennifer, the trial court sentenced Rubio to seven years to life, consecutive to the sentence
on the first lewd act charge involving Jennifer. On that charge, count 3, the court
sentenced Rubio to 15 years to life under section 667.61. On count 6, the lewd act charge
concerning Sara, the court imposed another sentence of 15 years to life under
section 667.61, again consecutive to the sentence on count 3. Finally, the trial court
imposed determinate terms on the two assault charges as well as a 15 years to life
sentence on the second lewd acts charge involving Jennifer, all running concurrently to
the sentence on the third count. The trial stated that it was making these sentences
concurrent because the assault and lewd act charges were part of the same “continuing
course of conduct.”
The trial court also awarded Rubio 1,446 days of credit for presentence
confinement. However, relying on People v. Dearborne (2019) 34 Cal.App.5th 250, 267-
268 (Dearborne), the court did not award any presentence work or conduct credits. The
court also imposed, but stayed, restitution fines and assessments. Finally, the trial court
issued an order under section 1202.05 prohibiting visitation between Rubio and both
Jennifer and Sara.
Rubio timely filed a notice of appeal
II. DISCUSSION
Rubio challenges four aspects of his sentence: (1) the denial of presentence credits
for work and good conduct; (2) the imposition of multiple punishments for the
kidnapping and lewd act offenses against Jennifer; (3) the imposition of concurrent
sentences for the assault and lewd act offenses; and (4) the inclusion of Sara Doe in the
no-visitation order. We address each of these challenges below.
A. Presentence Credits
The trial court denied Rubio any presentence work or good conduct credits
because he was sentenced under section 667.61, the “One Strike” law, which bars such
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credits for individuals punished under the law. Although Rubio acknowledges that the
One Strike law now bars individuals sentenced under it from receiving presentence work
or good time credits, he contends that individuals sentenced under the law were entitled
to credits until a 2006 amendment, that the ex post facto clauses in the federal and
California Constitution prohibit application of that amendment to crimes committed
before the amendment became effective, and that the crimes against Sara (but not
Jennifer) may have occurred before that. We agree
Under the Penal Code, individuals generally are eligible for work and good
conduct credits while confined before sentencing. (§ 4019, subds. (b), (c).) When the
One Strike law was enacted in 1994, it contained a provision capping work and good
conduct credits. (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 14, § 1, p. 8572 [prohibiting
reduction of indeterminate sentences imposed under the law “by more than 15 percent for
credits” under section 4019 and other statutes concerning work and good conduct
credits].) In 2006, the Legislature amended the One Strike law to eliminate this
provision. (Stats. 2006, ch. 337, § 33, p. 2641.) Although the amended statute was silent
concerning the availability of work and good time credits, the legislative history was not.
It expressly stated that the 2006 amendment “eliminates conduct/work credits for inmates
sentenced under the one-strike law.” (Sen. Com. on Public Safety, Analysis of Sen. Bill
No. 1128 (2005-2006) Reg. Sess. as amended Mar. 7, 2006, p. N.) Accordingly, it is now
well-settled that under the One Strike law as amended “ ‘defendants given indeterminate
terms under section 667.61 are not entitled to any presentence credit.’ ” (Dearborne,
supra, 34 Cal.App.5th at pp. 267-268, quoting People v. Adams (2018) 28 Cal.App.5th
170, 182 (Adams).)
This bar cannot be applied retroactively. Both the federal and the California
Constitutions prohibit “ex post facto” laws. (U.S. Const., art. I, § 10, cl. 1 [“No States
shall . . . pass any . . . ex post facto Law . . . .”]; Cal. Const., art. I, § 9 [“A[n] . . . ex post
7
fact law . . . may not be passed.”].) The federal and California ex post facto clauses do
not just bar retroactively increased prison terms. They also prohibit any law that
retroactively “disadvantages the offender . . . by . . . increasing the punishment” for
crimes committed before the law’s enactment. (People v. Rojas (2015) 237 Cal.App.4th
1298, 1306.) Consequently, the ex post facto clauses prohibit any law that “constricts the
inmate’s opportunity to earn early release and thereby makes more onerous the
punishment for crimes committed before its enactment.” (Weaver v. Graham (1981) 450
U.S. 24, 35-36, fn. omitted); see also People v. Flores (2009) 176 Cal.App.4th 1171, 1182
[agreeing that a “change in law ending [the defendant’s] ability to earn good conduct
credit violated the proscription against ex post facto laws”].)
The 2006 amendment to the One Strike law eliminating work and good conduct
credits was approved by the Governor on September 20, 2006 (Stats. 2006, ch. 337,
p. 2584), and because it was an urgency statute (Stats., ch. 337, § 62, p. 2668), it became
effective immediately. As a consequence, the ex post facto clauses in the federal and
California Constitutions bar application of the amendment to crimes committed before
the amendment became effective September 20, 2006.
It is unclear whether the crimes committed against Sara occurred before the 2006
amendment became effective. Count 5 of the second amended information charged
Rubio with committing assault with intent to commit a felony against Sara “[o]n or about
and between August 12, 2006 and August 11, 2007,” and count 6 similarly charged him
with committing a lewd or lascivious act against Sara “[o]n or about and between
August 12, 2006, and August 11, 2007.” Citing 18 or so pages of testimony from the
trial, the Attorney General asserts that the evidence in the record shows that Rubio
committed his crimes against Sara in 2007. However, the cited testimony does not show
this. Indeed, most of the testimony describes Rubio’s misconduct without offering any
clue when the misconduct occurred.
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Some of the cited testimony touches on timing, but it is vague. For example, Sara
testified that Rubio molested her when she was 10 years old and in fifth grade. However,
this testimony does not establish that Rubio’s actions occurred before the One Strike law
amendment became effective on September 20, 2006. Because Sara was born on
August 12, 1996, she became 10 years old on August 12, 2006, and the school year
typically starts around that time. Consequently, Sara also was likely 10 years old and in
fifth grade by August 2006, leaving several weeks in which Rubio might have committed
his offenses against Sara before the 2006 amendment to the One Strike law became
effective.
On cross-examination, Sara did say that in 2012 she should told police officers she
was reporting something that had happened five years before, which suggests that
Rubio’s crimes occurred in 2007 However, a subsequent exchange muddied this
suggestion: When Rubio’s counsel said “you’re not really certain if it was 2007,” Sara
responded “[w]e’re talking over ten years ago” and she was sure that “it was in fifth
grade,” which suggests that the incident with Rubio may have occurred early in the
school year in 2006.
There also was testimony that Rubio’s actions occurred in the room of Sara’s
younger cousin Rebecca and that Rebecca occupied that room by 2007. However, Sara
also testified that the room had been occupied by her aunt Katie, who married Rubio, and
that Katie moved out of it when Sara was in fourth grade, long before the 2006
amendment became effective in September 2006.
In short, there is no clear evidence that Rubio committed the crimes against Sara
in 2007, and it is possible that the crimes were committed before the 2006 amendment to
the One Strike law became effective.
In light of the uncertainty over when exactly Rubio’s actions against Sara applied,
the ex post facto clauses of the federal and California Constitutions prohibit application
9
of the One Strike law’s 2006 amendment to the crimes against Sara. “[I]t is the
prosecution’s responsibility to prove to the jury that the charged offenses occurred on or
after the effective date of the statute providing for the defendant’s punishment.” (People
v. Hiscox (2006) 136 Cal.App.4th 253, 256; see also id. at p. 261 [“verdicts cannot be
deemed sufficient to establish the date of the offenses unless the evidence leaves no
reasonable doubt that the underlying charges pertained to events occurred in or after [the
date of the punishment’s enactment]”].) Consequently, “[w]hen the evidence at trial does
not establish that fact, the defendant is entitled to be sentenced under the formerly
applicable statutes . . . .” (Id. at p. 256.)
Accordingly, we conclude that Rubio is entitled to presentence and good conduct
credit for counts 5 and 6, the offenses against Sara, because the ex post facto clauses in
the federal and California Constitutional bar application of the One Strike law’s 2006
amendment to conduct that may have occurred before the amendment became effective.
B. Penal Code Section 209
The trial court imposed consecutive sentences on Rubio for his offenses against
Jennifer: seven years to life for kidnapping and, due to the One Strike law, 15 years to
life for a lewd act against her. Rubio argues that he should not have received consecutive
sentences for these offenses because his kidnapping sentence was imposed under
section 209, which bars punishment multiple punishment under that section and the One
Strike law for the same act. This argument fails for a simple reason: Rubio was not
punished under section 209 and the One Strike law for the same act.
The One Strike law “ ‘mandates an indeterminate sentence of 15 or 25 years to life
in prison when the jury has convicted the defendant of a listed felony sex crime . . . and
also has found certain factual allegations to be true . . . .’ ” (People v. Carbajal (2013) 56
Cal.4th 521, 534.) The One Strike law’s subdivision (c) lists nine sex crimes (§ 667.61,
subd. (c)), including a “[l]ewd or lascivious act, in violation of subdivision (b) of
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section 288).” (§ 667.61, subd. (c)(4).) Subdivision (e) of the law in turn lists seven
special circumstances that may result in a sentence of 15 years to life. (§ 667.61,
subd. (e); see also § 667.61, subd. (b) [requiring sentences of 15 years to life for
committing a covered sex offense under subdivision (c) with a special circumstance
under subdivision (e)].) One of these special circumstances is that “the defendant
kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.”
(§ 667.61, subd. (e)(1).) Another is that “[t]he defendant has been convicted in the
present case or cases of committing an offense specified in subdivision (c) against more
than one victim.” (§ 667.61, subd. (e)(4).)
Section 209 also imposes enhanced punishment on individuals committing a crime
under a special circumstance. However, section 209 deals with a single crime—
kidnapping—and a single special circumstance—the crime was committed in order to
commit certain other crimes. Specifically, under subdivision (b) of section 209, “[a]
person who kidnaps or carries away an individual to commit robbery, rape, oral
copulation, sodomy, or any violation of Section 264.1, 288, 289, or former Section 262,
shall be punished by imprisonment in the state prison for life with the possibility of
parole.” (§ 209, subd. (b)(1).) Subdivision (d) of section 209 prohibits punishment under
both this provision and the One Strike law for an act that violates both: “A person may
be charged with a violation of subdivision (b) and Section 667.61 [the One Strike law].
However, a person may not be punished under subdivision (b) and Section 667.61 for the
same act that constitutes a violation of both subdivision (b) and Section 667.61.” (§ 209,
subd. (d).)
Rubio contends that section 209, subdivision (d) bars the consecutive sentences
imposed on him under that section for kidnapping and under the One Strike law for
committing lewd acts. However, Rubio was not punished under the One Strike law for
kidnapping. The prosecution might have done so by alleging kidnapping as the special
11
circumstance justifying imposition of a One Strike law sentence because, as noted above,
kidnapping is one of the special circumstances identified under the law. (§ 667.61,
subd. (e)(1).) However, the second amended information did not allege kidnapping as the
One Strike law special circumstance. It alleged as the special circumstance that Rubio
“has been convicted in the present case or cases of committing an offense specified . . .
against more than one victim,” and the jury therefore found the special circumstance that
he “committed a lewd or lascivious act in violation of Penal Code section 288(a) or (b)(1)
against more than one victim in this case.” As a consequence, Rubio was not punished
under section 209 and the One Strike law for the same act, and therefore punishment
under both provisions did not violate section 209’s prohibition against multiple
punishments for the same act. (§ 209, subd. (d).)
It is true that there was some overlap between the crimes for which Rubio was
punished under section 209 and the One Strike law. Rubio was punished under
section 209 for kidnapping to commit a lewd act and under the One Strike law for
committing a lewd act against multiple victims. However, the conviction under
section 209 was for kidnapping to commit a lewd or lascivious act, not for kidnapping
and committing a lewd or lascivious act. The jury was instructed that it had to find that
Rubio “intended to commit a lewd or lascivious act” on a child and “[a]cting with that
intent” took, held, or detained the child—not that Rubio realized his intention and
actually committed a lewd or lascivious act. Consequently, the lewd act was part of the
mens rea or mental state required for the kidnapping charge, not the actus reus or act.
This is not enough to trigger section 209’s prohibition against multiple punishments
because that provision applies to punishments “for the same act.” (§ 209, subd. (d),
italics added.)
Rubio also asserts that the multiple victims special circumstance that triggered his
sentence under the One Strike law does not bar his challenge because that circumstance is
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just a “jurisdictional fact” and “not an act.” That is true. However, as shown above, the
problem with Rubio’s section 209 argument is that he has not shown that he was
punished under section 209 and the One Strike law for the same act.
Finally, Adams, supra, 28 Cal.App.5th 170 does not help Rubio. In Adams, the
defendant received consecutive sentences of 15 years to life under section 209 for
kidnapping to commit rape or oral copulation and 25 years to life under the One Strike
law for forcible rape in concert and forcible oral copulation in concert. (Adams, at
p. 188.) However, in Adams, unlike this case, the alleged special circumstance under the
One Strike law was kidnapping the victim, and the jury specifically found that the
defendant kidnapped the victim. (Adams, at p. 187.) Moreover, Adams did not hold that
the consecutive sentences under section 209 and the One Strike law in that case were
barred because the defendant was punished under section 209 for kidnapping to commit
either forcible rape or forcible copulation. Adams held that the multiple punishments
were barred because the defendant was punished under both section 209 and the One
Strike law for kidnapping. In applying section 209’s prohibition against multiple
punishments, the court reasoned, “the relevant act is the kidnapping of [the victim] with
the intent to commit either charged sex offense,” and “[i]t is this act that constitutes a
violation of both section 209, subdivision (b) and section 667.61.” (Adams, at p. 194.)
Here, neither kidnapping, committing lewd acts, or any other act constitutes a violation of
both section 209, subdivision (b) and the One Strike law, and therefore Adams is
inapposite here.
Accordingly, we conclude that the trial court did not violate section 209 by
sentencing Rubio to consecutive terms for kidnapping Jennifer and committing lewd acts.
In light of this conclusion, we do not reach Rubio’s arguments about which punishment
should have been stayed.
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C. Section 654
Rubio was convicted of assaulting and committing lewd acts against both Jennifer
and Sara. The trial court imposed sentences for the assault convictions running
concurrently to the sentences for the lewd act convictions. Rubio argues that section 654
required the trial court to go further and stay execution of the sentences for either the
assault or the lewd act convictions. As explained below, we disagree.
Under section 654, “[a]n act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions, but in no
case shall the act be punished under more than one provision.” (§ 654, subd. (a).)
Concurrent sentences do not satisfy this prohibition: “ ‘It has long been established that
the imposition of concurrent sentences is precluded by section 654 [citations] because
[under such a sentence] the defendant is deemed to be subjected to the term of both
sentences although they are served simultaneously.’ ” (People v. Duff (2010) 50 Cal.4th
787, 796, italics omitted (Duff).) Instead, if section 654 applies, “it is necessary to
impose sentence, but to stay execution of the duplicative sentence . . . .” (Duff, at p. 796.)
Although section 654 applies to an “act or omission,” that term has long been
interpreted to include courses of conduct that are “indivisible.” (Neal v. State of
California (1960) 55 Cal.2d 11, 18-19, disapproved on other grounds in People v. Correa
(2012) 54 Cal.4th 331, 338 & fn.9.) In determining whether a course of conduct is
indivisible, courts examine the intent and objective of the actor: “Whether a course of
conduct is divisible and therefore gives rise to more than one act . . . depends on the
intent and objective of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.” (Id.
at p. 19; see People v. Cruz (2020) 46 Cal.App.5th 715, 736.)
However, “a course of conduct divisible in time, although directed to one
objective, may give rise to multiple violations and punishments.” (People v. Beamon
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(1973) 8 Cal.3d 625, 639, fn. 11.) If one offense is completed, and a second, similar
offense is then committed, both offenses may be punished: “[A] course of conduct
divisible in time, though directed to one objective, may give rise to multiple convictions
and multiple punishments” if “ ‘the offenses are temporally separate in such a way as to
afford the defendant opportunity to reflect and renew his or her intent before committing
the next one . . . .” (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718; see also
People v. Harrison (1989) 48 Cal.3d 321, 338 (Harrison) [holding defendant could be
punished for multiple sex offenses where his actions were interrupted by lengthy periods
of struggle]; People v. Perez (1979) 23 Cal.3d 545, 553-554 [holding section 654 does
not apply to multiple sexual offenses committed in a course of conduct to achieve sexual
gratifications where “[n]one of the sex offenses was committed as a means of committing
any other, none facilitated the commission of any other, and none was incidental to the
commission of any other”].)
It is not clear exactly why the trial court decided to make the sentences for Rubio’s
assault convictions concurrent with those for his lewd act convictions. Both the assaults
and the lewd acts had the same objective: Rubio was charged with assault with intent to
violate section 288, the lewd acts provision, and the jury was instructed that to convict
Rubio of the assault charges, it had to find, among other things, that Rubio “intended to
commit the crime of lewd or lascivious act on a child under 14 years old.” Thus, as the
Attorney General acknowledged, the assaults and the lewd acts “were all directed at one
objective, i.e., sexually gratifying himself.” However, it is not clear that the trial court
found that assaults and the lewd acts all part of a continuous course of conduct. With
respect to Jennifer, the trial court merely noted that “there is an argument that [the assault
and lewd act offenses] are a continuing course of conduct,” and with respect to those
against Sara, the court stated that the offenses “seem to be from the same course of
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conduct,” though the court later added that it “sees this as a continuing course of conduct
or ongoing act.”
We need not resolve this ambiguity because, even assuming the trial court found
that the assaults and lewd acts were part of a continuous course of conduct and aimed at a
single objective, the trial court had grounds for concluding that the crimes were divisible,
and we must assume that in imposing concurrent sentences the court implicitly adopted
this rationale. (See Lopez, supra, 198 Cal.App.4th at p. 717 [“If the court makes no
express findings on the issue . . . , a finding that the crimes were divisible is implicit in
the judgment . . . .”].) Moreover, an implicit finding of divisibility “must be upheld if
supported by substantial evidence.” (Ibid.; see People v. Brents (2012) 53 Cal.4th 599,
618.)
As noted above, “a course of conduct divisible in time, though directed to one
objective, may give rise to multiple convictions and multiple punishments” if after one
offense the defendant had the “ ‘opportunity to reflect and renew his or her intent before
committing the next one.’ ” (Lopez, supra, 198 Cal.App.4th at p. 717.) At trial, Jennifer
testified that Rubio’s offenses against her fell into three phases. First, Rubio kissed her
and touched her thighs, chest, and waist. Second, he tried to pull Jennifer’s sweatpants
down, but she resisted. Third, he rubbed his penis against her. The assault occurred
during the second phase when Rubio tried to pull down Jennifer’s sweatpants. However,
Rubio did this only after asking Jennifer if he could have intercourse with her The trial
court could have found that this question—and Jennifer’s failure to respond—gave Rubio
an opportunity to reflect and stop before attempting to pull down Jennifer’s sweatpants,
and that her resistance to that attempt likewise gave him the opportunity to reflect before
rubbing himself against her. As a consequence, there is substantial evidence that Rubio’s
assault upon Jennifer is divisible from his lewd acts against her.
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There is also substantial evidence that Rubio’s lewd act against Sara is divisible
from his assault upon her. Rubio committed a lewd act against Sara by backing her onto
a bed, crawling on top, and then straddling her with both his arms and legs. After doing
this, Rubio put a finger to his mouth and said “shush,” before trying to lift Sara’s skirt up.
The assault charge was based on this last action of lifting up Sara’s skirt. As Rubio
stopped to try to quiet Sara before doing this, the trial court reasonably could have found
that Rubio had an opportunity to reflect and stop before assaulting her by lifting up her
skirt and, thus, concluded that the assault was divisible from the lewd acts.
Accordingly, we conclude that the assaults against Jennifer and Sara are divisible
from the lewd acts against them and that the concurrent sentences imposed on Rubio for
those assaults do not violate section 654.
D. The No-Visitation Order
Finally, Rubio challenges the trial court’s no-visitation order. In sentencing
Rubio, the trial court issued an order “prohibiting visitation between [Rubio] and Sara
and Jennifer under Penal Code section 1202.05.” Rubio argues the trial court lacked the
authority to ban visitation with Sara because, unlike Jennifer, she was no longer a minor
when he was sentenced. The People concede this point, and we accept that concession.
Under section 1202.5, if a defendant is sentenced to prison for committing a lewd
act under section 288, and the victim “is a child under the age of 18 years, the court shall
prohibit all visitation between the defendant and the child victim.” (§ 1202.05, subd. (a).)
As this section authorizes prohibitions against visitation with a “child” victim, it has been
interpreted to “apply only to victims who are under the age of 18 at the time of the
contemplated visitation.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1323.) Here, by
the time of sentencing, Sara was not a minor; indeed, she was 28 years old. As a
consequence, the trial court lacked authority to include her in the no-visitation order.
17
III. DISPOSITION
The judgment is reversed, and this matter remanded to the trial court with
instructions (a) to grant presentence work and conduct credits on counts 5 and 6 and
(b) to remove Sara Doe from the no-visitation order. The judgment is otherwise affirmed.
18
____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
GREENWOOD, P. J.
____________________________________
DANNER, J.
People v. Gaspar
H052589