P. v. Pool

















Filed 12/12/12
P. v. Pool CA5

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. KENNETH MILLARD POOL, Defendant and Appellant.

F063755 (Super. Ct. No. F08901698) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Wayne R. Ellison, Judge.

Solomon
Wollack, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant
challenges the legality of a no-visitation
order. Respondent concedes that the
order was unauthorized. We accept the
concession as properly made and will strike the no-visitation order.

FACTS

Appellant
was convicted after jury trial of two counts of continuous sexual abuse of a
minor on victims T.S. and R.D. (counts 2 and 3). (Pen. Code, § 288.5.)href="#_ftn2" name="_ftnref2" title="">^[1] Appellant also was convicted of misdemeanor
assault on victim B.M. (count 1) and of misdemeanor battery on victim A.D.
(count 4).href="#_ftn3" name="_ftnref3" title="">^[2] (§§ 240, 242). He was sentenced under section 667.61 to two
concurrent terms of 15 years to life imprisonment.

Appellant appealed the
judgment. In People v. Kenneth Millard Pool (Jun. 10, 2011, F060131), this
court reversed the conviction on count 2 due to insufficiency of the
evidence. The sentence was vacated and
matter was remanded for sentencing.

A probation officer’s report was
prepared for the resentencing hearing.
In relevant part, it recommended that the court impose an order
prohibiting visitation with “the victim” pursuant to section 1202.05.

Appellant was resentenced on
September 27, 2011. On count 3, the
mid-term of 12 years’ imprisonment was imposed.
The court ordered “credit for time served with respect to the
misdemeanor violations.” A no-visitation
order was imposed, as follows:

“I don’t know whether this has any possible application
here, sir, but I’m ordering that you not have visitation with the victims in
this case, either of them. So
technically speaking, Count Two has been dismissed by the Appellate Court, that
would include not only the victim on Count Three -- I’m looking for his
initials here -- RD, but also the victim TS on Count Two and the victims on the
misdemeanors as well. You are not to
have any contact with any of them during the course of your incarceration
pursuant to Penal Code Section 1202.05.”


Appellant did not object to the
no-visitation order during the resentencing hearing.

The minute order for the
resentencing hearing provides, in relevant part: “Court orders all visitation between the
defendant and the child victim be prohibited pursuant to Penal Code [section]
1202.05.”

The no-visitation order is not
reflected in the abstract of judgment.

DISCUSSION

Appellant argues the no-visitation
order imposed in this case is unauthorized because it improperly included the
victims of counts 1, 2 and 4. He further
argues that the no-visitation order is unauthorized with respect to R.D., the
victim of count 3, because it remained applicable after R.D. reached the age of
18. Respondent concedes these points and
we accept the concession as properly made.

An unauthorized sentence may be
corrected at any time. (>People v. Robertson (2012) 208
Cal.App.4th 965, 995.) Therefore,
appellant’s failure to object to the no-visitation order during the
resentencing hearing did not result in forfeiture of appellate review.

The propriety of a no-visitation
order is determined by the authorizing statute.
(People v. Robertson, supra,
208 Cal.App.4th at p. 996.) Section
1202.05, subdivision (a) provides that when the defendant is sentenced to
prison for violating certain enumerated statutes and the victim is under the
age of 18, the court shall enter an order prohibiting all visitation between
the defendant and the victim. The plain
language of section 1202.05 “includes only child victims of offenses for which
a defendant was sentenced to prison.” (>People v. Ochoa (2011) 192 Cal.App.4th
562, 564.) Appellant was convicted in
counts 1 and 4 of violating sections 240 and 242. These crimes are not listed offenses in
section 1202.05, subdivision (a) and appellant was not sentenced to prison for
these convictions. Therefore, the
victims of counts 1 and 4 are not properly included in a no-visitation order
that is based on section 1202.05. Also,
the victim of count 2 is not properly included in the no-visitation order
because the conviction in count 2 was reversed.
Therefore, we agree with the parties that the no-visitation order is
unauthorized as to the victims of counts 1, 2 and 4.href="#_ftn4" name="_ftnref4" title="">^[3]

The victim of count 3 fell within
the perimeter of section 1202.05 when the order was made. Section 288.5 is an offense enumerated in
section 1202.05, subdivision (a).
Appellant was sentenced to prison for this crime. The victim, R.D., was under the age of 18
when the resentencing hearing took place on September 27, 2011. However, R.D. reached the age of 18 a few
months later. Section 1202.05 does not
have any application to a victim who is more than 18 years old at the time of
his intended visit to the defendant. (>People v. Scott (2012) 203 Cal.App.4th
1303, 1323.) “Nothing in the legislative
history suggests any intention or expectation that the act would affect
visitation between adult victims and their childhood abusers…. Once a victim has reached [the age of 18] the
act has no effect on her or his ability to visit the defendant in prison.” (Ibid.) The no-visitation order does not provide that
it is operable only while the victims are minors. To the extent that it purports to restrict
visitation after R.D. reached the age of 18, it is unauthorized.

The appropriate remedy is to strike
the no-visitation order. (>People v. Robertson, >supra, 208 Cal.App.4th at p. 997.) Since the abstract of judgment does not
reflect the no-visitation order preparation of an amended abstract is not
necessary.

DISPOSITION

The no-visitation order that was
imposed during the September 27, 2011, sentencing hearing is stricken. The judgment is affirmed in all other
respects.