People v. Ochoa

[564]Opinion

ROBIE, J. In this case we interpret the meaning of a statute that prohibits visitation between criminal defendants and the children they sexually molest. The statute provides in pertinent part as follows: “[wjhenever 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.” (Pen. Code,1 § 1202.05, subd. (a).)

The issue here is whether the statute’s prohibition on visitation includes only child victims of offenses for which a defendant was sentenced to prison. Based on the plain language of the statute, the answer is “yes.”2 As such, we strike the portion of a no visitation order issued by the trial court that encompasses victims of offenses for which the defendant was never sentenced to prison.

FACTUAL AND PROCEDURAL BACKGROUND

In a single indictment, defendant Miguel Ochoa was charged with crimes against five girls: three of the girls were alleged to be victims of sex offenses (D., V., Ang.) and two of the girls were alleged to be victims of “nonsex” offenses (M., Ann.). Defendant pled guilty to committing sex offenses against two of the girls (D. and V.) and was sentenced to prison for those offenses. The remaining charges against him were dismissed. At sentencing, the court issued a no visitation order as to all five girls pursuant to section 1202.05.

On appeal, defendant contends the no visitation order must be stricken as to three of the girls (M., Ann., Ang.) because the statute permitting the no visitation order requires he actually be convicted of an enumerated sex offense against the alleged victim and sentenced to prison. Here, he was convicted and sentenced to prison for enumerated sex offenses against only two victims (D. and V.).

The People agree, but only up to a point. They concede the no visitation order must be stricken as to two of the girls (M. and Ann.) because the crimes involving them were not sex offenses for which a no visitation order must be imposed. However, as to the no visitation order relating to Ang., they argue it [565]