Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07902938, W. Kent Hamlin, Judge.
William J. Capriola, 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, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J. and Poochigian, J.
A jury convicted appellant, Rudy Gonzales Rios, of two counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a)) and two counts of committing a forcible lewd or lascivious act against a child under the age of 14 (§ 288, subd. (b)(1)). In a separate proceeding, appellant admitted allegations that he had suffered prior convictions of forcible sexual penetration (§ 289, subd. (a)) and first degree burglary (§§ 459, 460, subd. (a)). The court sentenced appellant to a term of 205 years to life in prison.
All statutory references are to the Penal Code.
The victim of the instant offenses gave birth to a child. Appellant is the father. The court ordered that appellant have no visitation with this child.
We refer to this order as the no-visitation order.
On appeal, appellant contends: (1) the no-visitation order constituted an unauthorized sentence, and (2) the sentence imposed was unconstitutionally cruel and unusual. Respondent concedes the first point. We will strike the no-visitation order and otherwise affirm.
DISCUSSION
No-Visitation Order
The victim in the instant case is appellant’s stepdaughter. On April 14, 2007, when she was 14 years old, she gave birth to a baby. Appellant is the baby’s father. The victim testified she “put [the baby] up for adoption.” She indicated that the baby was adopted, and that she has contact with the baby and the adoptive family.
At sentencing, the court stated: “One additional order... the Court... is required to make is that the defendant is not to have visitation with the child victim. I’m gonna [sic] make that order as to the product of the union as well. That is to say that neither the [victim] nor her child are to have visitation with the defendant while he’s in the Department of Corrections [and Rehabilitation], ... and the People should be contacting [the Department of Corrections and Rehabilitation] with respect to that order as to their identities so there’s no issue of any possible visitation of that defendant. The code section for that prohibition doesn’t immediately just jump to mind. It seems to me it’s in the 1205 zone, somewhere around there. Yes. 1202.05, pursuant to that code section.”
Appellant contends, and respondent concedes, that the no-visitation order is not authorized by section 1202.05. We agree. That statute provides that when a defendant is convicted of violating, inter alia, section 288, and the victim is under the age of 18 years, “the court shall prohibit all visitation between the defendant and the child victim.” Section 1202.05 does not authorize the prohibition of visitation between appellant and the child of the victim.
Appellant also argues, and respondent does not dispute, that no other statute authorizes the no-visitation order. This court too is aware of no such authority. As respondent points out, the question of whether appellant has visitation rights with respect to the child is more appropriately raised in a family law court. In the absence of any authority for the no-visitation order, that order constitutes an unauthorized sentence.
Cruel and Unusual Punishment
Appellant’s sole argument in support of his cruel and unusual punishment claim is that no human being could complete a 205-year sentence. He relies on Justice Mosk’s concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, where Justice Mosk stated, “A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel and unusual punishment clause of article I, section 17 of the California Constitution.”
Respondent argues this appellant has forfeited this claim by failing to raise it below. We assume, without deciding, that appellant’s cruel and unusual punishment claim is properly before us.
In People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd), the court noted that “[b]ecause no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion, it has no precedential value.” The Byrd court also disagreed with Justice Mosk’s analysis, concluding, “In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution (People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311) or the federal Constitution. (Harmelin v. Michigan (1991) 501 U.S. 957 [sentence of life without possibility of parole not cruel and unusual [punishment] for possession of 672 grams of cocaine].) [¶] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects society’s condemnation of defendant’s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.” (Ibid.)
We agree with the reasoning of Byrd, and therefore reject appellant’s claim of cruel and unusual punishment.
DISPOSITION
The no-visitation order is stricken. In all other respects, the judgment is affirmed.