Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027854
ROBIE, J.
Defendant Edward Lee Hosmun II appeals from a judgment entered on his plea of no contest, asserting the trial court abused its discretion in imposing the upper term and had no authority to enter a no visitation order under Penal Code section 1202.05 with respect to one of his victims. We reject defendant’s first contention but (with the concession of the People) accept his second contention. Accordingly, we will modify the judgment to eliminate the erroneous no visitation order and affirm the judgment as modified.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled no contest to one count of oral copulation of an incompetent person (Kevin C.), two counts of committing a lewd act on a child (Kale L.), and one count of inducing a child (Kale L.) to engage in a lewd act, and he admitted sentencing enhancement allegations that he administered a controlled substance (marijuana) during the commission of two of the offenses and that he committed three of the offenses on more than one victim at the same time and in the same course of conduct. In exchange for the plea, two additional charges and one additional sentencing enhancement allegation were dismissed.
At the sentencing hearing on March 26, 2008, the trial court selected one of the counts of committing a lewd act on a child (count four) as the principal term and based on information in the probation report imposed the upper term of eight years on that count based the court’s determination that the circumstances in aggravation outweighed those in mitigation. As mitigating circumstances, the court cited defendant’s lack of a prior or significant record and the possibility that he suffered from a mental condition that did not rise to the level of a defense. As aggravating circumstances, the court cited the vulnerability of the victims, planning and premeditation, use of alcohol, use of pornography, and defendant’s knowledge that he is HIV-positive.
Defense counsel claimed defendant “has been diagnosed with bipolar [disorder] and there’s probably some underlying depression issues as well.”
With consecutive sentencing and the enhancements, the court sentenced defendant to an aggregate term of 20 years 8 months in prison. The court also ordered defendant “to have no contact or visitation with the victims pursuant to [section] 1202.05.”
DISCUSSION
I
Imposition Of The Upper Term
Defendant contends “[t]he trial court erred when it aggravated count four based on facts that were not admitted by [defendant] when he entered his plea.” He admits the trial court’s selection of the upper term is subject to review only for abuse of discretion. (See People v. Sandoval (2007) 41 Cal.4th 825, 847.) He contends, however, that the trial court abused its discretion here because the court “could not rationally rely on [any] facts to aggravate his sentence” that he did not admit were true. In particular, defendant asserts he never admitted that Kale L. was particularly vulnerable, that his conduct was premeditated, that he used pornography, or that he is HIV-positive. According to defendant, “Because the trial court relied on facts that were not admitted by [defendant] to enhance his sentence, the trial court violated [his] Sixth Amendment right to a jury trial. Consequently, its sentencing choice, as an erroneous application of the law, constituted an abuse of discretion.”
This argument borders on frivolous. Following the decision of the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] that California’s determinate sentencing law violated the Sixth Amendment, the Legislature amended the law to eliminate the constitutional infirmity. (See People v. Sandoval, supra, 41 Cal.4th at pp. 831, 845.) Under the prior version of the law, a sentencing court was required to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b).) Based on this provision, the United States Supreme Court determined the middle term was the maximum term that could be imposed based on the jury’s verdict or the defendant’s admissions in a plea, and the imposition of an upper term based on the trial court’s finding of aggravating circumstances beyond any facts found by the jury or admitted by the defendant violated the defendant’s Sixth Amendment right to a jury trial. (Sandoval, at pp. 836-837.) The Legislature eliminated this constitutional problem, however, when it amended the determinate sentencing law to give the sentencing court the discretion to determine which of the three terms of imprisonment to impose, without the middle term being the presumptively correct term. (See § 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].) As a result of the amendment, the upper term, not the middle term, is the statutory maximum that may be imposed without additional fact finding. (Sandoval, at pp. 850-851.)
With the constitutional infirmity in the determinate sentencing law thus eliminated, the Sixth Amendment is not violated when a trial court, in the exercise of its discretion, decides to impose the upper term based on aggravating circumstances that were not found by a jury or admitted by the defendant. This being so, defendant’s claim that the trial court abused its discretion by imposing the upper term based on facts defendant never admitted necessarily fails.
II
No Visitation Order
Defendant contends the trial court lacked authority under section 1202.05 to order him to have no visitation with Kevin C. because Kevin C. was over the age of 18 when judgment was imposed. The People concede error. In the view of both parties, section 1202.05 applies only when the victim is a minor at the time the no visitation order is imposed.
We accept the People’s concession. Subdivision (a) of section 1202.05 provides: “Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The court’s order shall be transmitted to the Department of Corrections, to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim, and to the child victim. If any parent, adoptive parent, or legal guardian of the child victim, or the child victim objects to the court’s order, he or she may request a hearing on the matter. Any request for a hearing on the matter filed with the sentencing court shall be referred to the appropriate juvenile court pursuant to Section 362.6 of the Welfare and Institutions Code.”
From the fact that the statute is phrased in the present tense, it appears the Legislature intended the statute to apply to a victim who “is a child under the age of 18 years” at the time the perpetrator “is sentenced to the state prison.” This interpretation of the statute is reinforced by the fact that notice of the no visitation order must be sent “to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim” and the fact that any hearing on an objection to the order is to be heard in “the appropriate juvenile court.” Neither of these provisions would make much sense if the victim -- like Kevin C. here -- were an adult at the time the no visitation order was imposed. For these reasons, we agree with the parties that the trial court did not have the authority under section 1202.05 to impose a no visitation order on defendant with respect to Kevin C., and we will modify the judgment accordingly.
Defendant has not challenged the no visitation order with respect to Kale L. and therefore that order is not affected by our decision.
DISPOSITION
The judgment is modified to strike the no visitation order with respect to Kevin C. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P. J., CANTIL-SAKAUYE, J.