Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM018701
RAYE, J.Defendant Kevin Anthony Rutherford’s eight year eight month sentence for seven counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1)), eight counts of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)), and one count of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)) was reinstated when he violated the generous terms of probation by testing positive for marijuana use. We accept defendant’s argument that the trial court improperly imposed the no-visitation order pursuant to Penal Code section 1202.05 because the victim was over the age of 18 at the time of sentencing, and we accept the Attorney General’s concession that the trial court improperly imposed a condition of parole that can only be imposed by the Board of Prison Terms. We reject, however, defendant’s contention that the imposition of consecutive sentences is unconstitutional because it depends on judicial fact finding.
FACTS
In 2003 defendant, then 40 years old, pled no contest to having a sexual relationship with the victim, who was 13 years old when they initiated their relationship in 2000. The court suspended imposition of sentence and placed defendant on probation for five years. On June 16, 2006, defendant told his probation officer that he hoped he did not test positive for marijuana based on his consumption of poppy seed muffins that his doctor had prescribed for weight loss. He submitted a urine sample that tested positive for marijuana.
DISCUSSION
I
Defendant admitted he tested positive for marijuana; the court revoked probation. Pursuant to Penal Code section 1202.05, the trial court ordered that defendant, who was sentenced to over eight years in prison, was to have no visitation with the victim. Section 1202.05 provides, in pertinent part: “(a) 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.”
The question thus presented is whether the victim must be under the age of 18 at the time of sentencing or at the time the offense is committed. Quoting Robin J. v. Superior Court (2004) 124 Cal.App.4th 414, 426, fn. 10, the Attorney General contends that Penal Code section 1202.05 was enacted “‘to prevent inmates from having access to their child victims except where a juvenile court had determined that it would be in the child’s best interests to visit with the inmate. Against the backdrop [of] allowing visitation between inmates and children, [this provision] made sense as a method to protect those children most likely to be victimized again by an incarcerated inmate.’” But the Attorney General’s argument begs the question: does the mandatory no-visitation order apply to a victim who, at the time of sentencing, is no longer a child? Robin J. v. Superior Court does not resolve that issue.
There are, as defendant suggests, other statutes that provide the trial court with authority to protect victims from their abusers. (See, e.g., Pen. Code, §§ 136.2, 646.9, subd. (k), 1203.1, subd. (j).) And the victim may request a restraining order pursuant to section 527.6 of the Code of Civil Procedure. Defendant insists that although any of these statutes allow the court to impose a no-visitation order when the victim is over the age of 18 at the time of sentencing, Penal Code section 1202.05 does not. We agree.
We ascertain legislative intent from the words of the statute. (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) Penal Code section 1202.05 states that “[w]henever a person is sentenced to the state prison” and “the victim . . . is a child under the age of 18 years, ” the court must prohibit visitation. Thus the Legislature correlates the age of the victim at the time of sentencing to a prohibition against visitation. The use of “is, ” the present tense of the verb “be, ” when referring both to the time of sentencing and the age of the victim is consistent with the purpose of the statute to protect children from further abuse. Moreover, the statute also provides a child victim or his or her guardians with the opportunity to invoke the jurisdiction of the juvenile court to allow visitation if appropriate.
Here the victim was no longer a child at the time of defendant’s sentencing. By the time he violated probation and was sentenced to state prison, the victim was 20 years old and no longer subject to the mandatory provisions of Penal Code section 1202.05. That is not to say a no-visitation order would be inappropriate. But because the trial court operated under the misconception that it was obligated to prevent visitation under the terms of section 1202.05, we remand for it to reconsider the no-visitation order under other possible statutes.
II
The Attorney General concedes the trial court improperly imposed a treatment program as a condition of parole, acknowledging that the executive branch, through the Board of Prison Terms, has “inherent and primary authority” to impose conditions of parole. (Pen. Code, § 3053, subd. (a); In re Roberts (2005) 36 Cal.4th 575, 588.) The Attorney General points out there is no statutory or decisional authority for the trial court’s order.
III
Defendant contends the court’s imposition of consecutive sentences violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264.) In Black II, the Supreme Court stated bluntly: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that the United States Supreme Court’s opinion in Cunningham cast doubt on the constitutionality of the imposition of consecutive sentences in the absence of jury findings. In light of Black II, defendant’s challenge is without merit.
DISPOSITION
The judgment is reversed insofar as it includes a no-visitation order pursuant to Penal Code section 1202.05 and imposes a treatment program as a condition of parole. The case is remanded to the trial court for reconsideration of the no-visitation order under other pertinent provisions of the law. In all other respects, the judgment is affirmed.
We concur:
SIMS, Acting P.J., CANTIL-SAKAUYE, J.