People v. Race

Filed 12/11/17

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E066059

v. (Super.Ct.No. FVI1501969)

TIMOTHY RUEBEN RACE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan,

Judge. Affirmed in part and reversed in part with directions.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II. B. and C.

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McGinnis, Kristine A. Gutierrez, and Daniel J. Hilton, Deputy Attorneys General, for

Plaintiff and Respondent.

Defendant and appellant, Timothy Rueben Race, pled no contest to attempted

lewd and lascivious acts on a child under the age of 14, the lesser included offense of the

count 2 charge. (Pen. Code, §§ 664, 288, subd. (a).) 1 Pursuant to the plea agreement, the

court sentenced defendant to the upper term of four years’ imprisonment. The court

limited defendant’s conduct credit award to 15 percent pursuant to section 2933.1. The

court additionally issued a 10-year criminal protective order pursuant to section 136.2,

subdivision (i)(1) as to both defendant’s daughter and niece.

On appeal, defendant contends the court erred in issuing a criminal protective

order as to his daughter, the victim described in count 1 of the information, because he

did not plead to any offense with respect to her. Thus, defendant argues his daughter is

not a “victim” for purposes of issuing a criminal protective order. Defendant additionally

asserts the court erred in limiting his award of conduct credits to 15 percent pursuant to

section 2933.1. Finally, defendant maintains the minute orders dated February 26 and

March 25, 2016, must be corrected to accurately reflect that defendant pled guilty to a

lesser included offense of count 2, not count 1. We reverse and remand for a proper

custody calculation and correction of the minute orders. In all other respects, the

judgment is affirmed.

1 All further statutory references are to the Penal Code.

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 I. FACTUAL AND PROCEDURAL HISTORY 2

In July 2015, personnel from the Bismarck Police Department and the North

Dakota Children Advocacy Center provided an officer from the San Bernardino County

Sheriff’s Department reports reflecting that defendant’s then 12-year-old daughter (born

in April 2003) had been the victim of sexual abuse. The officer conducted a follow-up

interview with defendant’s daughter by telephone on July 15, 2015. Defendant’s

daughter reported that in May 2014, at defendant’s home in California, defendant woke

her by kissing her “on the mouth, inserting his tongue into her mouth.” “He then placed

his hand on [her] vagina and began rubbing. It was—it was skin-to-skin contact . . . .”

Defendant’s daughter also reported that in June 2014, defendant “came into the

room, pressed her up against the wall, proceeded to kiss her on the mouth, again inserting

his tongue into her mouth, and then . . . he made her touch his private area with her

hand.” The contact with her hand and defendant’s privates was “skin-to-skin.”

Defendant told his daughter “not to say anything to anyone otherwise he would hurt her.”

During a pretextual telephone call conducted by another officer, defendant “was

very hesitant to talk. He claimed that the matters had already been discussed and

investigated and were preparing to go to court, and was accusing [the officer] of

interfering with matters that have already been discussed.” Defendant “asked if [his

daughter] was referring to the goodnight kiss on the mouth that they do as part of their

2 Both parties utilize the preliminary hearing transcript for their recitation of facts.
We shall do likewise.

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family or if she was referring to the touching when he was rubbing her stomach and

thighs to check her digestion.” Defendant denied touching his daughter’s vaginal area.

On March 26, 2015, another officer was contacted by the mother of defendant’s

niece who reported that her daughter (born in May 2006) had reported that defendant

touched her privates. The officer interviewed the niece, who reported that defendant

“grabbed her with both hands on either side of her hips and started to pull her back

towards him.” She told him to stop, but defendant “reached a hand under her dress and

grabbed her on the buttocks.” He stopped, but then grabbed her again and sat her on his

lap. The niece got off defendant, but “he grabbed her and spun her around to face him

before reaching another hand underneath her dress and touching her on the vagina[l] area

outside of her underwear.”

The niece ran into her mother’s room; defendant followed. Defendant “pushed her

onto the bed so she was laying on her back and grabbed her—both of her hands and

pinned them to the bed above her head and laid on top of her.” She freed her hands; she

then pushed and slapped him. Defendant got off her and walked into the restroom. He

“sat down on the toilet and told her that she could stay and watch if she wanted to.” The

niece immediately ran outside and told her mother what had happened.

An officer discussed the incident with defendant the following day. Defendant

said that he was roughhousing with his niece, but she began to hurt him. He told her to

stop several times before he picked her up and threw her on the bed. Defendant admitted

using the restroom and leaving the door open. He denied placing his niece on his lap,

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laying on top of her, touching her in any way, or telling her she could watch him use the

restroom.

Defendant’s niece participated in a forensic interview at the Children’s

Assessment Center on April 15, 2015. She told the interviewer she was “over” talking

about the incident. She said “that she wanted [defendant] to go to jail because grown-ups

weren’t supposed to do something wrong to their nieces[.]”

The People charged defendant by felony information with two counts of lewd and

lascivious acts upon a child under the age of 14 years. (§ 288, subd. (a); counts 1 (his

daughter) & 2 (his niece).) Defendant pled guilty as recounted above. The court

dismissed the remaining counts. The parties stipulated the complaint and police report

would provide the factual basis for the plea, “[o]nly as to the admitted counts of those

facts.”

As part of the plea, defendant executed a Harvey 3 waiver, which read: “I waive

my rights regarding dismissed counts and/or allegation(s) and any charges the district

attorney agrees not to file to the extent that the Court may consider these factors in

deciding whether or not to grant probation and in deciding whether or not to impose a

midterm, aggravated or mitigated prison term, the appropriate presentence credits, and as

to restitution.”

In the probation officer’s report, the officer recommended awarding defendant a

total of 231 days of custody credit, consisting of 201 actual days and 30 conduct days

3 People v. Harvey (1979) 25 Cal.3d 754, 758.

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computed pursuant to section 2933.1. At sentencing, defense counsel argued that

defendant was not limited to 15 percent conduct credits pursuant to section 2933.1

because the offense to which he pled was not one of the offenses listed in section 667.5,

subdivision (c). The People responded that they considered defendant’s offense a violent

felony; ergo, they contended the 15 percent restriction on custody credits should apply.

The court stated: “I am going to stick with . . . [section] 2933.1 since no one has any law

or specific direction for me to look at at this time. And it can be taken up on appeal.”

The court awarded defendant 213 days of actual credit, but did not award any conduct

custody credit.

The People requested issuance of a 10-year criminal protective order as to both

defendant’s daughter and niece. Defense counsel responded: “Normally I would object,

but since I believe their ages were eight and ten year[s], ten years before they are adults, I

am not going to object. [Defendant] does not object.” When asked by the court if he had

any questions regarding the protective order, defendant responded: “I am not worried

about that.”

II. DISCUSSION

A. Criminal Protective Order

Defendant contends the court erred in imposing the criminal protective order as to

his daughter because she was not a “victim” of any offense of which he was convicted.

In addition to arguing the criminal protective order was legally authorized, the People

maintain defendant forfeited the issue by failing to object below. We hold that section

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136 defines a “victim” in a broad enough manner in which to include a victim of a

charged count of which defendant does not stand convicted so long as the court had some

competent evidence before it with which to conclude there was reason to believe the

individual was a victim of a broadly defined domestic violence related offense involving

harm or attempted harm such that a criminal protective order should be issued.

Section 136.2, subdivision (i)(1) provides, in pertinent part: “In all cases in which

a criminal defendant has been convicted of a crime involving domestic violence . . . , the

court, at the time of sentencing, shall consider issuing an order restraining the defendant

from any contact with the victim. The order may be valid for up to 10 years, as

determined by the court . . . . It is the intent of the Legislature in enacting this

subdivision that the duration of any restraining order issued by the court be based upon

the seriousness of the facts before the court, the probability of future violations, and the

safety of the victim and his or her immediate family.” “As used in the chapter containing

section 136.2, subdivision (i)(1), ‘“[v]ictim” means any natural person with respect to

whom there is reason to believe that any crime as defined under the laws of this state . . .

is being or has been perpetrated or attempted to be perpetrated.’ (§ 136, subd. (3).)”

(People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211 (Delarosarauda); accord,

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)

“‘Issues of statutory interpretation are questions of law subject to our independent

or de novo review. [Citations.] “The fundamental purpose of statutory construction is to

ascertain the intent of the lawmakers so as to effectuate the purpose of the law.

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[Citations.] In order to determine this intent, we begin by examining the language of the

statute. [Citations.] But ‘[i]t is a settled principle of statutory interpretation that language

of a statute should not be given a literal meaning if doing so would result in absurd

consequences which the Legislature did not intend.’ [Citations.] Thus, ‘[t]he intent

prevails over the letter, and the letter will, if possible, be so read as to conform to the

spirit of the act.’ [Citation.] Finally, we do not construe statutes in isolation, but rather

read every statute ‘with reference to the entire scheme of law of which it is part so that

the whole may be harmonized and retain effectiveness.’” [Citation.]’ [Citation.]”

(Delarosarauda, supra, 227 Cal.App.4th at p. 210; accord, Beckemeyer, supra, 238

Cal.App.4th at p. 465.) With respect to the issuance of a legally authorized criminal

protective order, “‘“We imply all findings necessary to support the judgment, and our

review is limited to whether there is substantial evidence in the record to support these

implied findings.”’ [Citation.]” (People v. Therman (2015) 236 Cal.App.4th 1276,

1279.)

In Beckemeyer, the defendant pled guilty to the attempted murder of a woman

whom he had previously dated; defendant additionally pled guilty to one count of assault

with a deadly weapon against his previous girlfriend’s son. (Beckemeyer, supra, 238

Cal.App.4th at p. 464.) The court issued a 10-year protective order restraining the

defendant from having contact with both victims. (Id. at pp. 463-464.)

On appeal, the defendant contended the protective order as to the girlfriend’s son

must be stricken as he was not a victim of domestic violence as defined by statute.

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(Beckemeyer, supra, 238 Cal.App.4th at pp. 464-465.) The court restated the statutory

definition of a “victim,” observing that “for purposes of a section 136.2 protective order,

‘victim’ is broadly defined in section 136 as any person against whom there is reason to

believe a crime has been committed.” The court noted that: “When enacting section

136.2[, subdivision] (i)(1) to permit 10-year postconviction protective orders in domestic

violence cases, the Legislature was aware of this broad definition of victim generally

applicable to section 136.2 protective orders, and it did not enact a provision narrowing

its scope for purposes of a postconviction domestic violence protective order.” (Id. at p.

466.) Thus, because the defendant pled guilty to committing a crime against the

girlfriend’s son during a domestic violence incident, the girlfriend’s son “readily” fell

within the statutory definition of a victim pursuant to section 136.2. Therefore, the court

properly issued the criminal protective order as to the girlfriend’s son. (Id. at pp. 466-

467.)

In Therman, the People charged the defendant with, among other offenses,

inflicting corporal injury on his spouse. The defendant pled no contest to felony false

imprisonment. The court issued a criminal protective order with respect to the victim.

On appeal, the defendant contended, and the People conceded, that the court did not have

authority to issue the protective order. (People v. Therman, supra, 236 Cal.App.4th at p.

1277.) The court disagreed. The court held “that the record supports an implied finding

that defendant committed ‘abuse’ against his spouse within the meaning of section

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13700, and therefore committed a crime of domestic violence such that the protective

order was authorized by section 136.2, subdivision (i).” (Id. at p. 1279.)

In Delarosarauda, a jury convicted the defendant of corporal injury to a spouse or

cohabitant, assault by means likely to produce great bodily injury, assault with a deadly

weapon, and misdemeanor vandalism. The jury additionally found true an allegation the

defendant had used a deadly weapon during the corporal injury offense. The defendant

had committed all of the offenses against his spouse or cohabitant. (Delarosarauda,

supra, 227 Cal.App.4th at p. 208.) After sentencing, the court issued a criminal

protective order as to the victim and her two children. (Id. at p. 209.)

After appellate court personnel filed the record, the defendant’s counsel filed a

motion in the trial court seeking to correct the protective order. At the hearing on the

motion, counsel argued the court was not authorized to issue the protective order with

respect to the victim’s children because they were not domestic violence victims. The

court found that one of the children was a “‘collateral’ victim because she witnessed the

incident.” The court also found that because the “‘collateral victim’” was an “‘immediate

family member[],’” she also qualified as a victim pursuant to section 136.2. As to the

victim’s son, the court declined to lift the protective order, but signified its willingness to

do so if the defendant obtained a family court order allowing him to have contact with the

son. (Delarosarauda, supra, 227 Cal.App.4th at p. 210.)

On appeal, the court held that “absent evidence from which the trial court could

reasonably conclude that appellant had harmed or attempted to harm [the children], the

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court lacked authority to issue the no-contact protective order as to the children under

section 136.2, subdivision (i)(1).” (Delarosarauda, supra, 227 Cal.App.4th at p. 212.)

Thus, the court held the court had improperly issued the criminal protective order with

respect to the children. (Id. at pp. 213-214.) Nevertheless, in dicta, the court noted that

the subject of a protective order pursuant to section 136.2, subdivision (i)(1) need not be

a named victim of one of the offenses for which the defendant stood convicted; rather,

such a protective order could issue with respect to someone against whom some evidence

suggested the individual had been “targeted or harmed” by the defendant.

(Delarosarauda, supra, at p. 212.)

We distill from the cases discussed ante, the rule that the term “victim” pursuant

to section 136.2 criminal protective orders must be construed broadly to include any

individual against whom there is “some evidence” from which the court could find the

defendant had committed or attempted to commit some harm within the household. In

the instant case, sufficient evidence supported the criminal protective order issued with

respect to defendant’s daughter. 4

Here, defendant stipulated that the police report and complaint would provide a

factual basis for the plea. The police report reflects that defendant’s daughter disclosed

4 Having concluded that the court’s protective order as to defendant’s daughter
was legally authorized, we discuss the sufficiency of the evidence to support that order
only to forestall defendant’s ineffective assistance of counsel claim. In other words, we
agree with the People that defendant has forfeited the issue of whether sufficient evidence
supported the order because defendant not only failed to raise the issue below, but agreed
to the issuance of the protective order. (People v. Trujillo (2015) 60 Cal.4th 850, 856-
857.)

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that defendant had sexually assaulted her; he kissed her with an open mouth, touched her

vaginal area, and compelled her to touch his genitalia. The complaint alleged that

defendant had committed lewd and lascivious acts upon his daughter. An officer testified

at the preliminary hearing that defendant’s daughter reported defendant kissed her,

inserting his tongue into her mouth; defendant further touched her genitalia and forced

her to touch his. This was sufficient evidence for the court to conclude that defendant’s

daughter had been harmed within the household such that a protective order against him

should issue.

Defendant contends the evidence contained in the police report, preliminary

hearing, and complaint could not be considered by the court because defendant’s Harvey

waiver did not extend to the issuance of the protective order. We agree that neither

defendant’s Harvey waiver nor his stipulation to a factual basis for the plea extended to

the facts underlying the count 1 charge, to which defendant did not plead, with respect to

most issues other than sentencing. However, we hold that in considering the issuance of

a criminal protective order, a court is not limited to considering the facts underlying the

offenses of which the defendant finds himself convicted, regardless of the execution of a

Harvey waiver. Rather, in determining whether to issue a criminal protective order

pursuant to section 136.2, a court may consider all competent evidence before it. Here,

the court had before it sufficient competent evidence with which to properly determine

that a criminal protective order as to defendant’s daughter should issue.

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 Defendant further contends the criminal protective order was the functional

equivalent of an order terminating his parental rights without affording him due process

of law. First, defendant was afforded due process in that he was given ample opportunity

to argue against the issuance of the protective order. Instead, both defendant and his

counsel agreed to issuance of the order. Second, the criminal protective order is not the

functional equivalent of an order terminating parental rights. As the People note, unlike a

parent who has had his parental rights terminated, defendant can move the court to

rescind the order upon his release from prison. (§ 136.2, subd. (a)(1)(G)(i);

Delarosarauda, supra, 227 Cal.App.4th at p. 211.) Moreover, section 136.2 provides

mechanisms for cooperation between the criminal, juvenile, and family law courts to

permit communication by the subject of the criminal protective order with members of

his family if appropriate. (§ 136.2, subds. (e)(3), (f); Delarosarauda, supra, at p. 211.)

Thus, the court properly issued the criminal protective order with respect to defendant’s

daughter.

B. Conduct Credits

Defendant contends the court erred in limiting his award of conduct credits to 15

percent pursuant to section 2933.1. The People concede the error. We agree.

“A defendant convicted of a violent felony is limited as to the amount of

presentence and postsentence custody credits that can be earned. [Citation.]” (People v.

Singleton (2007) 155 Cal.App.4th 1332, 1336-1337.) “[A] defendant convicted of a

violent felony can earn a maximum of 15 percent in custody credits, thereby ensuring that

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he or she serves at least 85 percent of the sentence imposed.” (Id. at p. 1337.)

“Notwithstanding any other law, any person who is convicted of a felony offense listed in

subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit,

as defined in Section 2933.” (§ 2933.1, subd. (a).) “A sentence that fails to award legally

mandated custody credit is unauthorized and may be corrected whenever discovered.

[Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 647; accord, People v.

Chilelli (2014) 225 Cal.App.4th 581, 591.)

Attempted lewd and lascivious acts upon a child under the age of 14 is not an

offense specifically listed in section 667.5, subdivision (c). Therefore, the offense of

which defendant stands convicted is not considered a violent felony; therefore, defendant

was not limited to an accumulation of only 15 percent conduct credits. Moreover, the

court neglected to award any conduct credits. Thus, we remand the matter to the court to

properly calculate defendant’s custody credits.

C. Correction of Minute Orders

Defendant contends the minute orders dated February 26 and March 25, 2016,

must be corrected to accurately reflect that defendant pled guilty to a lesser included

offense of count 2, not count 1. The People concede the issue. We agree.

“‘When there is a discrepancy between the oral pronouncement of judgment and

the minute order or the abstract of judgment, the oral pronouncement controls.’

[Citation.] A reviewing court has the authority to correct clerical errors . . . .

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[Citations.]” (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3; accord,

People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)

Here, the minute order for February 26, 2016, reads: “Count 1 is amended to

[sections] 664/288[, subdivisions] (A)-F: Attempt Lewd Or Lascivious Acts W/Child –

Felony.” The reason given is that the amendment was “Pursuant to Plea Bargain.”

Likewise, the minute order dated March 25, 2016, reflects that: “Defendant pleads No

Contest as to 1. [Sections] 664/288[, subdivisions] (A)-F: Attempt Lewd Or Lascivious

Acts W/Child Order of the Court Plea change on 02/26/2016.” It further reads: “1.

[Sections] 664/288[, subdivisions] (A)-F: Attempt Lewd Or Lascivious Acts W/Child

Disposition amended to Convicted – Plea Reason: Order of the Court.” However, both

the plea agreement and the reporter’s transcript of the plea reflect that defendant instead

pled no contest to attempted lewd acts upon a child as a lesser included offense of the

count 2 charge. Thus, on remand the court is directed to correct the minute orders to

accurately reflect defendant’s plea.

III. DISPOSITION

The judgment is reversed in part and the cause is remanded to the court to

calculate and award defendant custody credits without the limitations imposed by section

2933.1. The court is further directed to correct the minute orders dated February 26 and

March 25, 2016, to reflect defendant pled to a lesser included offense of the count 2

charge. The court shall forward a copy of the new abstract of judgment to the

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Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

McKINSTER
J.

We concur:

RAMIREZ
P. J.

MILLER
J.

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