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Name: People v. Ochoa
Case #: C065356
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/07/2011

Penal Code section 1202.05, subdivision (a), prohibiting visitation with a child victim of enumerated crimes, applies only to those victims of enumerated crimes for which defendant is sentenced to state prison. Appellant, charged with crimes against five girls, was convicted by guilty plea of committing sex offenses against two of the girls. Two other girls were alleged to be victims of non-sex offenses, and one count was dismissed pursuant to People v. Harvey (1979) 25 Cal.3d 754. For the two crimes, the court sentenced appellant to state prison, but imposed a no-visitation order pursuant to Penal Code section 1202.05, subdivision(a) as to all five girls. The appellate court modified the order to apply to only the two victims of the offenses for which appellant was sentenced to state prison. Section 1202.05, subdivision (a) provides that when a person is sentenced to state prison for the enumerated offenses and the victim is under 18 years of age, the court is required to prohibit visitation. Following rules of statutory construction, which, in part focus on the plain language of a statute, the court observed that section 1202.05 specifically requires that defendant be sentenced to state prison for the no-visitation order to be implemented. The Harvey waiver does not provide an exception because defendant is not sentenced to prison for the Harvey-dismissed count.