People v. Viveros CA5

Filed 3/15/21 P. v. Viveros CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078003
Plaintiff and Respondent,
(Super. Ct. No. F16904603)
v.

JOEL VIVEROS, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for
Appellant and Respondent.
-ooOoo-
Appellant Joel Viveros was convicted following a jury trial of forcible rape (Pen.
Code,1 § 261, subd. (a)(2); count 1) with a one-strike kidnapping circumstance (§ 667.61,

1 All further undesignated statutory references are to the Penal Code.
subd. (d)(2)) and forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2) with a one-
strike kidnapping circumstance (§ 667.61, subd. (d)(2)). Appellant was sentenced to two
consecutive terms of 25 years to life (one for each count) for a total of 50 years to life.
On appeal, appellant contends: (1) the evidence was insufficient to support the
kidnapping circumstances; (2) the court’s instruction to the jury on the kidnapping
circumstance was impermissibly ambiguous (CALCRIM No. 3175); (3) the court erred
by sentencing appellant to consecutive terms (§ 667.6, subd. (d)); (4) the court’s order
prohibiting visitation with the victim was unauthorized; (5) the sentencing minute order
must be corrected to reflect the termination of a pretrial criminal protective order; and
(6) the abstract of judgment must be corrected to reflect the court’s oral pronouncement
of appellant’s sentence. Respondent concedes error with regard to appellant’s latter three
arguments. We accept respondent’s concessions but otherwise affirm the judgment.
FACTS
On July 31, 2009, around 10:30 p.m., Kimberly G. left a party to meet her
boyfriend at her mother’s house a few blocks away. Kimberly took the long way to her
mother’s house, staying on “a busy street” rather than cutting through a nearby school
with no lights or walking through a neighborhood. While she was walking on the
sidewalk, a stranger came up behind her and started talking to her, asking her where she
was going and if she lived in the neighborhood. Kimberly felt scared, so she tried to
ignore him and began to walk faster. After a couple of minutes of trying to talk to
Kimberly, the stranger punched Kimberly in the face more than once, causing her to fall
to the ground. The lighting in the area where the perpetrator punched Kimberly was
“dim,” but she could see where she was. There was a park across the street with lights on
the street around it. After the perpetrator punched Kimberly, he dragged her by her arms
about 10 to 15 feet across a grass area to some bushes by a building where it was “really
dark.” While dragging her, the perpetrator told Kimberly he had a knife, and that if she
screamed, he would kill her. Kimberly testified the perpetrator dragged her to a space

2.
between the bushes and the wall of the building where it met a chain-link fence, and that
the bushes possibly could have concealed her if they were longer.
The perpetrator then told Kimberly to perform oral sex on him, and she heard him
unbuckling his belt. She complied. She told the police officer who was later dispatched
that she had initially refused, but the perpetrator tried to force his penis into her mouth
and was able to put his penis in her mouth about 10 times. While the perpetrator was
forcing Kimberly to orally copulate him, he told her to close her eyes and not look at him,
and he continued to threaten to kill her and her family. Kimberly told the reporting
officer the perpetrator became angry when she would not perform oral sex on him, so he
punched her again, and she fell to the ground. At that point, the perpetrator then removed
Kimberly’s underwear and shorts, got on top of her, and penetrated her vagina with his
penis 10 to 15 times while calling her names. Afterward, the perpetrator told Kimberly to
keep her eyes closed, count to 10, and if she told anyone what happened, he would find
her and kill her. Kimberly estimated the entire sexual assault lasted less than five
minutes, but “seemed like forever.” During the assault, there were vehicles driving by,
but the headlights were not pointing towards her, and she was not close enough to yell
toward them for help.
Kimberly ran to the closest busy street and got the attention of a man on a bicycle
who then walked her to a nearby hospital. When they got there, they waved down a
police car in the parking lot. Kimberly told an officer that she was covered in bushes
while being raped, and the bushes were surrounding her body.
Kimberly underwent a sexual assault exam. The nurse who performed Kimberly’s
exam observed Kimberly’s left jaw was swollen, and she had a loose tooth and black and
blue lip. Kimberly also had several abrasions to her hand and thigh. Kimberly told the
nurse she experienced pain during her vaginal exam. The nurse collected swabs from
various parts of Kimberly’s body, as well as suspected semen from her vagina.

3.
 A crime scene technician photographed the scene. Kimberly’s broken glasses
were found in the grass, and one of her sandals, her panties and shorts were found near
the wall and bushes of the nearby building. The crime scene technician estimated it was
approximately 30 feet from the sidewalk to the wall of the nearby building.
In 2016, a Combined DNA Index System (CODIS) “hit” revealed appellant as a
DNA match to the perpetrator. A search warrant was issued for the collection of
appellant’s DNA, and further analysis confirmed the match.
Appellant agreed to be interviewed by the police at the time the search warrant
was being executed; the interview was recorded and a video of his interview was played
for the jury.
During his interview, appellant initially stated he did not remember committing
the crimes, noting he was “heavily on drugs” in 2009. Eventually, he stated he did
remember approaching Kimberly and that she may have said something to make him
angry causing him to push her. He recalled taking her “off to the side of somewhere”; he
said he “drug her back” by some bushes by a building and sexually assaulted her. He
recalled her trying to fight him off. He said he took her clothes off. He did not recall
asking her to perform oral sex but it was possible that he did. Appellant said he
remembered feeling like he did something wrong in the few days that followed. He
remembered hearing “somewhere down the line that somethin’ similar to that happened
in that area” and hoped it was not him. Appellant said Kimberly “did not deserve that.
And I’m sure that ruined her life.” He said, “the reason I’m admitting to this after so long
is because it’s somethin’ that’s kinda (been on) to me all my life … since that day.”
Appellant testified in his own defense that he felt he was pressured into confessing
in his interview. He admitted he had an “encounter” with Kimberly, but he did not recall
the nature of it because of short-term memory problems due to past head trauma. He
testified the detectives gave him the details of the assault he mentioned in his interview
before the recording started.

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 DISCUSSION
I. Sufficiency of the Evidence—One-Strike Kidnapping Circumstances
Appellant contends the evidence was insufficient to support the one-strike
kidnapping circumstances (§ 667.61, subd. (d)(2)), specifically the jury’s findings
Kimberly was moved a “substantial distance” and that the distance “substantially
increase[d]” the risk of harm to Kimberly. We disagree.
In assessing a claim of insufficiency of the evidence, we review “the whole record
in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal on insufficiency of the
evidence is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969)
71 Cal.2d 745, 755.)
Section 667.61, subdivision (d)(2) permits the imposition of an indeterminate
25-years-to-life sentence on a person who is convicted of specified sexual offenses (rape
and forcible oral copulation are both specified) when two elements are satisfied: (1) the
victim is kidnapped; and (2) the victim’s movement “substantially increased the risk of
harm to the victim over and above that level of risk inherent in the underlying offense.”
(§ 667.61, subd. (d)(2); People v. Adams (2018) 28 Cal.App.5th 170, 189.)
The first element, simple kidnapping, “requires the People to prove (1) the victim
was moved a substantial distance, (2) the movement was accomplished by use of physical
force or fear, and (3) the movement was nonconsensual.” (People v. Kelly (2016)
245 Cal.App.4th 1119, 1129–1130.) A substantial distance must be more than trivial or
slight. (People v. Martinez (1999) 20 Cal.4th 225, 237.) The measured distance of the
movement, while relevant, is not dispositive. (People v. Dominguez (2006) 39 Cal.4th
1141, 1152 (Dominguez).)

5.
 In determining the second element, whether the movement increased the risk of
harm to the victim, the jury could consider whether there is substantial asportation of the
victim as well as “whether the movement decreases the likelihood of detection, increases
the danger inherent in a victim’s foreseeable attempts to escape, or enhances the
attacker’s opportunity to commit additional crimes.” (Dominguez, supra, 39 Cal.4th at
p. 1152; see People v. Kelly, supra, 245 Cal.App.4th at p. 1130.) The increased risk may
be of either physical or psychological harm. (People v. Nguyen (2000) 22 Cal.4th 872,
885–886.)
In this case, because of the overlap of the evidence supporting both findings
challenged by appellant, we will address both claims together. (See Dominguez, supra,
39 Cal.4th at p. 1152 [“[W]hether the victim’s forced movement was merely incidental to
the rape is necessarily connected to whether it substantially increased the risk to the
victim. ‘These two aspects are not mutually exclusive, but interrelated.’ ”].)
Here, keeping in mind the substantial evidence standard where we must draw all
reasonable inferences in favor of the judgment, we conclude there was substantial
evidence from which the jury could infer the movement of Kimberly was both substantial
within the meaning of the statute and that it substantially increased the risk of harm to
her.
The California Supreme Court has explained in the context of kidnapping to
commit rape:2 Movement “must be considered in context, including the nature of the

2 The crime of kidnapping to commit rape at the time of Dominguez, the defendant’s
conviction is analogous to the one-strike kidnapping circumstance we address here. (See
People v. Perkins (2016) 5 Cal.App.5th 454, 467–469 (Perkins).) The jury in Dominguez
was instructed that to find the defendant had committed “kidnapping for rape,” it “must
find defendant kidnapped the victim with the specific intent to rape her and that
‘[k]idnapping is the unlawful movement by physical force of a person without that
person’s consent for a substantial distance where the movement is not merely incidental
to the commission of the rape and where the movement substantially increases the risk of

6.
crime and its environment. In some cases a shorter distance may suffice in the presence
of other factors, while in others a longer distance, in the absence of other circumstances,
may be found insufficient.” (Dominguez, supra, 39 Cal.4th at p. 1152.) To illustrate this
concept, the court gave the following relevant examples:

“For example, moving robbery victims between six and 30 feet within their
home or apartment … may be viewed as merely incidental to the
commission of the robbery and thus insufficient to satisfy the asportation
requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet
from the front counter of a store to a small back room for the purpose of
raping her … might, under the circumstances, substantially increase the risk
of harm to the victim and thus satisfy the asportation requirement.”
(Dominguez, supra, 39 Cal.4th at p. 1152.)
In Dominguez, the defendant moved a rape victim, at night, 25 feet from a public
road, down an embankment and into an orchard that was 10 to 12 feet below the level of
a road, which “tended to obscure [the] defendant’s crime from any onlookers.”
(Dominguez, supra, 39 Cal.4th at p. 1153.) “The movement thus changed the victim’s
environment from a relatively open area alongside the road to a place significantly more
secluded, substantially decreasing the possibility of detection, escape or rescue.” (Ibid.)
The court concluded this movement could not be said to have been merely incidental to
the rape. (Id. at p. 1154.) Furthermore, the evidence suggested the forced movement
removed the victim from public view, and the court therefore concluded the movement
substantially increased the risk of harm. (Ibid.; see People v. Hoard (2002) 103
Cal.App.4th 599, 607 [“[A] rape victim is certainly more at risk when concealed from
public view and therefore more vulnerable to attack.”].)
Appellant contends his case is distinguishable from Dominguez and other cases
where the asportation element was met when a victim was moved from a location in
public view to a location concealed from public view (e.g. People v. Diaz (2000)

harm to the person over and above that necessarily present in the crime of rape itself.’ ”
(Dominguez, supra, 39 Cal.4th at p. 1151, fn. omitted, italics added.)

7.
78 Cal.App.4th 243, 248). Appellant argues that from the area where the sexual assault
took place, Kimberly and appellant would still have been visible to motorists and
pedestrians. He notes the crime scene photos show sparse shrubbery that did not block
the view of the chain-link fence or the wall where the crimes took place. We disagree
with appellant’s assessment of the evidence.
The sexual assault in the present case took place on the side of a building located
on an intersection, and when viewing the scene of the sexual assault from the street on
which Kimberly was walking, we acknowledge appellant’s point that it does not appear
the bushes would have completely covered Kimberly. However, the jury also could
reasonably consider the assault took place at approximately 10:30 at night, and that
Kimberly described the sidewalk as dimly lit and the area in the bushes as “really dark”
and far away enough from the street that she could not yell for help. The jury could infer
that though the bushes may not have completely covered Kimberly from view on the
street facing the area of the sexual assault, they would have significantly camouflaged her
from auto and pedestrian traffic on this street.
In addition to the above, one of the photographs of the scene was taken from
across the street, facing the front of the building where the assault took place. This
photograph shows that while the sidewalk where appellant initially approached Kimberly
can be seen from the street that the front of the building faced, the area where the sexual
assault took place is completely concealed by the bushes from motorists passing on this
street and pedestrians walking toward the building. This was a busier street, according to
Kimberly, and the street where it was relatively easy to flag down the man on the bike
moments after the sexual assault.
Thus, it can be reasonably inferred the movement of Kimberly from the sidewalk
to the bushes significantly camouflaged her from the viewpoint of one of the streets, and
completely concealed her from the viewpoint of the other, busier street. The inferences
drawn from the photographs, along with Kimberly’s testimony, are the movement

8.
significantly decreased the likelihood of detection, giving appellant more opportunity to
prolong the crimes, and therefore increased the risk of harm of physical and
psychological harm to Kimberly.3
Like Dominguez, the movement “changed the victim’s environment” and
“substantially decreas[ed] the possibility of detection, escape, or rescue.” (Dominguez,
supra, 39 Cal.4th at p. 1153.) Accordingly, the same facts and inferences support the
jury’s finding that the movement, though not a great distance, was “substantial.” To
support appellant’s argument that movement 10 to 30 feet cannot support a finding of
“substantial distance,” he cites Perkins, supra, 5 Cal.App.5th at page 464, where the
appellate court found evidence the defendant forced the victim to move 10 to 30 feet
inside a small private residence from one room to another was not sufficient to support a
finding of “substantial distance.” (Id. at p. 470.) The Perkins court noted “[n]o evidence
indicates the movement increased the risk of harm to the victim” or “decreased the
likelihood of detection.” (Ibid.) Perkins is distinguishable for the reasons already stated,
that the movement in the present case did substantially increase risk of harm to Kimberly
and did decrease the likelihood of detection. Unlike in Perkins, the movement here took
Kimberly from a location in public view to a location that was significantly concealed
from public view.
Sufficient evidence supports the section 667.61, subdivision (d)(2) true findings.
II. Alleged Instructional Error
The trial court instructed the jury, with no objection from the defense, that one of
the elements of the kidnapping circumstances the People were charged with proving was

3 Interestingly, appellant’s defense was that he had a consensual sexual encounter
with Kimberly next to the building in the bushes. Appellant’s version of events raises the
question of why they would move from the sidewalk to the side of the building. The
most reasonable conclusion is that they did so to conceal themselves from public view.

9.
“the defendant moved Kimberly G. or made her move a substantial distance.”
(CALCRIM No. 3175.)
Appellant argues the instruction was impermissibly ambiguous because, pursuant
to the “last antecedent rule,”4 the phrase “a substantial distance” only refers to the words
“made her move.” Therefore, appellant argues, the instruction could be interpreted as
requiring (1) that defendant moved the victim or (2) made the victim move a substantial
distance. As a result, appellant argues, if the jury found appellant moved Kimberly, they
could have found the kidnapping circumstances true without finding she was moved a
substantial distance as required. Appellant argues if we find he has forfeited the issue
because his trial counsel failed to object to the instruction, his counsel was ineffective.
We decline to decide based on forfeiture or ineffective assistance of counsel because, in
any event, appellant’s claim fails on its merits.
“ ‘ “[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 987.) Accordingly, “[i]n
assessing a claim of instructional error or ambiguity, we consider the instructions as a
whole to determine whether there is a reasonable likelihood the jury was misled.”
(People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire (1991) 502 U.S. 62,
72.) “ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury
instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People
v. Ayala (2000) 24 Cal.4th 243, 289.) “We look to the instructions as a whole and the
entire record of the trial, including the arguments of counsel.” (People v. Lopez (2011)

4 The “last antecedent rule” of statutory construction provides that “ ‘qualifying
words, phrases and clauses are to be applied to the words or phrases immediately
preceding and are not to be construed as extending to or including others more remote.’ ”
(White v. County of Sacramento (1982) 31 Cal.3d 676, 680.)

10.
198 Cal.App.4th 698, 708.) “Instructions should be interpreted, if possible, to support the
judgment rather than defeat it if they are reasonably susceptible to such interpretation.”
(Ibid.) We also presume the jury followed the court’s instructions. (People v. Edwards
(2013) 57 Cal.4th 658, 746.)
Here, there is not a reasonable likelihood the jury would have understood the
instructions in the way that appellant proposes. Any ambiguity arising from the way the
instruction was written would have been alleviated by arguments of counsel, which made
clear the jury was required to find the victim was moved a substantial distance or made to
be moved a substantial distance.
The prosecutor highlighted the definition of “substantial distance” in his closing
argument. He went on to argue that “[substantial distance] is what was testified to.” He
noted appellant dragged Kimberly approximately 15 to 30 feet from the sidewalk into
some bushes. He went on to expressly state “the People proffer [the distance moved] was
a substantial distance.” He never argued the People were not required to prove Kimberly
was moved a substantial distance because she was moved rather than made to move.
The prosecutor’s argument on “substantial distance” is significant in light of the
evidence as presented at trial. The only evidence of movement was that appellant
dragged (or “moved”) Kimberly. Appellant states in his reply brief that he did not
concede movement by dragging. However, appellant’s defense was that the sexual
encounter was consensual and no dragging occurred; if the jury had accepted appellant’s
defense, the jury would have acquitted appellant and not reached the question of whether
the kidnapping circumstance was true.
Moreover, defense counsel argued the element required a “substantial distance, not
15 to 30 feet, a substantial distance.” Defense counsel went on: “And that’s what we’re
talking about here, matter of some feet.” “It’s a very slight movement.”
We are not persuaded by appellant’s argument that counsel’s arguments would not
have alleviated any potential confusion. Appellant contends the jury would have only

11.
understood the argument to mean that movement of a substantial distance was a
circumstance that helped establish the increased-risk-of-harm element, pointing to the
portion of the instruction that read “[i]n deciding whether the distance was substantial
and whether the movement substantially increased the risk of harm, you must consider all
the circumstances relating to the movement.” (CALCRIM No. 3175.) We do not find
this was a reasonable way for the jury to interpret counsel’s comments. In context of the
evidence and arguments, it is clear whether Kimberly was moved a substantial distance
was a significant issue at trial, and the most likely interpretation by the jury, last
antecedent rule notwithstanding, was that they were required to find the movement was a
“substantial distance.”
Based on arguments by counsel as well as the way evidence was presented at trial,
there is not a reasonable likelihood the jury understood the jury instructions in the manner
appellant proposes. We find no error.
III. Consecutive Sentencing
Appellant argues the court erred by sentencing him to consecutive terms pursuant
to section 667.6, subdivision (d) because the crimes did not occur on “separate
occasions” as required by the statute.5 We disagree.
Section 667.6, subdivision (d) reads in pertinent part: “A full, separate, and
consecutive term shall be imposed for each violation of [specified sex offenses] if the
crimes involve … the same victim on separate occasions. [¶] In determining whether
crimes against a single victim were committed on separate occasions under this

5 Appellant points out the prosecutor advanced an argument at sentencing based on
a recitation of the facts not supported by the evidence wherein appellant forced Kimberly
to orally copulate him in the grass area, dragged her, and then raped her in the bushes.
We agree the prosecutor’s argument was not supported by the record; however, it is clear
the trial court did not base its conclusion on these facts, but on facts that were supported
by the record. Thus, this opinion does not place any relevance on the prosecutor’s
recitation of the facts.

12.
subdivision, the court shall consider whether, between the commission of one sex crime
and another, the defendant had a reasonable opportunity to reflect upon his or her actions
and nevertheless resumed sexually assaultive behavior. Neither the duration of time
between crimes, nor whether or not the defendant lost or abandoned his or her
opportunity to attack, shall be, in and of itself, determinative on the issue of whether the
crimes in question occurred on separate occasions.”
“Once a trial judge has found under section 667.6, subdivision (d), that a
defendant committed offenses on separate occasions, we may reverse only if no
reasonable trier of fact could have decided the defendant had a reasonable opportunity for
reflection after completing an offense before resuming his assaultive behavior.” (People
v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
In sentencing appellant to consecutive sentences of 25 years to life, the trial court
recited the facts of the case in relevant part as follows: “At [the time appellant forced
Kimberly to orally copulate him], Kimberly G. still had her clothing and [appellant]
decided to rape her, so he yanked or ripped off her clothing, that is her shorts and her
panties. He then decided to climb on top of Kimberly and raped her.” The trial court
concluded that appellant had “an ample and reasonable opportunity to reflect on his
actions between [forcing Kimberly to orally copulate him] and then forcibly raping her
after ripping off her shorts and underwear and then climbing on top of her. In other
words, despite this ample and reasonable opportunity, [appellant] nevertheless decided to
rip off Kimberly’s clothing and rape her. So, in the Court’s estimation, he had ample and
reasonable opportunity to reflect on his conduct between the assaultive sex crimes, but he
nevertheless resumed sexual assaulting [Kimberly]. The Court makes the findings,
therefore, that while this included only one victim, which is [Kimberly], much [of] these
offenses occurred on separate occasions.”
Appellant argues that appellant’s removal of Kimberly’s clothing and climbing on
top of her did not constitute a reasonable opportunity to reflect within the meaning of the

13.
statute because these acts were “sexually assaultive behavior,” citing People v. Corona
(1988) 206 Cal.App.3d 13, 18. In Corona, the appellate court held where the defendant
kissed the victim, removed her pants, continued kissing her, put his finger into her
vagina, kissed her genitals, and put his penis in her vagina (id. at p. 15), these acts did not
constitute “separate occasions” because “there was no cessation of sexually assaultive
behavior hence defendant did not ‘resume[] sexually assaultive behavior’ ” (id. at p. 18).
Appellant also cites People v. Peña (1992) 7 Cal.App.4th 1294, 1316 to support
his argument that the switch from forcible oral copulation to rape was merely a “change
in position necessary to accomplish rape,” and therefore still sexually assaultive behavior
insufficient to give rise to a reasonable opportunity to reflect. In Peña, the defendant
entered the victim’s home, raped her, got off of her, twisted her by the legs violently, and
orally copulated her. (Id. at p. 1299.) The appellate court held the evidence showed a
change in position alone is insufficient to provide a perpetrator with a reasonable
opportunity to reflect upon his actions. (Id. at p. 1316.)
This court has disagreed with both Corona and Peña to the extent those cases
suggest “a finding of ‘separate occasions’ requires a change of location or an obvious
break in a perpetrator’s behavior.” (People v. Irvin (1996) 43 Cal.App.4th 1063, 1070–
1071.) In so holding, this court stated: “A violent sexual assault cannot and should not
be considered in the same light as sexual acts shared between willing participants.
Consensual sex may include times when the participants go back and forth between
varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible
violent sexual assault made up of varied types of sex acts committed over time against a
victim, is not necessarily one sexual encounter.” (Id. at p. 1071.) This court in Irvin
remanded the matter because it was not clear if the court considered whether the
defendant had a reasonable opportunity to reflect upon his or her actions during the
course of a long sexual assault with directions it do so “even though the parties never
changed physical locations and the parties ‘merely’ changed positions.” (Ibid.) We

14.
agree with our colleagues in Irvin that the trial court is not precluded from finding a
reasonable opportunity to reflect despite no change in physical location or “mere” change
of sexual position.
In any event, we find Peña distinguishable because in addition to “changing
positions” the court noted appellant’s decision to remove Kimberly’s clothes. We reject
appellant’s argument that the removal of Kimberly’s clothes did not constitute an
opportunity for him to reflect. To support his assertion that removing Kimberly’s
clothing was sexually assaultive behavior, denying appellant an opportunity to reflect on
his actions, he says it was “essentially part of the rape,” citing People v. Perez (1979)
23 Cal.3d 545, 553 (Perez). The portion of Perez quoted by appellant was the court’s
summary of another case, People v. Greer (1947) 30 Cal.2d 589. In Greer, the court held
the defendant could not be convicted of both lewd and lascivious conduct and statutory
rape under the law at the time because “there [was] no question” the same act of rape
served as the basis for both charges. (Greer, at p. 604.) The court added: “Except for
the rape itself, the only act of which [the victim] accused defendant was the forcible
removal of her underclothing immediately preceding the rape. To hold that the removal
of the [victim’s] underclothing constitutes an act separate from the rape, however, would
be artificial in the present context and would permit double punishment not authorized or
contemplated by [the lewd and lascivious conduct statute.]” (Ibid.)
In discussing Greer, among other cases, the court in Perez reversed and remanded
for resentencing where the trial court had concluded that section 6546 prohibited multiple
punishment for a defendant’s multiple sexual offenses against a victim over the course of
45 minutes to an hour, including orally copulating her, committing sodomy on her,

6 Section 654, subdivision (a) reads in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”

15.
forcing her to orally copulate him, having vaginal intercourse with her, forcing her to
orally copulate him again, and having vaginal intercourse with her again. (Perez, supra,
23 Cal.3d at pp. 549, 553–554.) The Perez court harmonized its holding with Greer and
similar cases by pointing out that “[n]one of the sex offenses were committed as a means
of committing any other, none facilitated commission of any other, and none was
incidental to the commission of any other.” (Perez, at pp. 553–554.) The court also
noted that “[a] defendant who attempts to achieve sexual gratification by committing a
number of base criminal acts on his victim is substantially more culpable than a
defendant who commits only one such act.” (Id. at p. 553.)
Appellant’s argument that the removal of Kimberly’s clothing did not give him an
opportunity to reflect based on Perez and Greer is a request for us to make an
inappropriate extrapolation from those cases’ holdings. The Greer court’s refusal to
separately punish a defendant for removal of a victim’s clothing and the rape that
immediately follows does not compel a conclusion that the act of removing Kimberly’s
clothing in the present case could not allow an opportunity for appellant to reflect.
We note the court mentioned in its ruling that the first responding officer testified
“Kimberly reported that she initially refused to orally copulate [appellant] and he
punched her again and then shoved his penis in her mouth about 10 times while
forcefully grabbing her head.” The record shows this officer testified that Kimberly
reported appellant punched her after she would not participate in performing oral sex,
causing her to fall to the ground on her back at which point appellant removed her
clothing and climbed on top of her and raped her. Another officer who interviewed
Kimberly testified to a similar order of events. This act of punching testified to by a
witness to whom the trial court clearly gave credence gave rise to additional opportunity
for appellant to reflect upon his actions.

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 The court’s conclusion that appellant had a reasonable opportunity to reflect and
resume sexually assaultive behavior was not unreasonable; accordingly, the court did not
err.
IV. Unauthorized No-Visitation Order
At sentencing, the trial court ordered appellant shall not have visitation with the
victim pursuant to section 1202.05. The sentencing minute order and abstract of
judgment reflect this order. Appellant contends this order was unauthorized because
section 1202.05 prohibits visitation with child victims, and Kimberly was an adult at the
time of the crime. Respondent concedes the error and agrees the sentencing minute order
and abstract of judgment should be amended to strike the no-visitation order pursuant to
section 1202.05.
We agree with the parties. Section 1202.05, subdivision (a) reads in pertinent part:
“Whenever a person is sentenced to the state prison … for violating [enumerated sex
offenses], 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.”
Kimberly was 20 years old at the time of the crimes according to the probation report.
The imposition of the no-visitation order was unauthorized and as such shall be
stricken and both the sentencing minute order and the abstract of judgment must be
amended to reflect it. (See People v. Robertson (2012) 208 Cal.App.4th 965, 997.)
V. Sentencing Minute Order and Abstract of Judgment Clerical Errors
Appellant contends two clerical errors exist on the sentencing minute order and the
abstract of judgment. Respondent acknowledges both errors and concedes they must be
corrected, and we agree.
“ ‘ “Courts may correct clerical errors at any time, and appellate courts … that
have properly assumed jurisdiction of cases have ordered correction of abstracts of
judgment that did not accurately reflect the oral judgments of sentencing courts.” ’ ”

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(People v. Hudson (2018) 28 Cal.App.5th 196, 211.) Accordingly, we direct the trial
court to correct the cited clerical errors. (See ibid.)

A. Reference to the August 10, 2016 Pretrial Criminal Protective Order in
the Sentencing Minute Order
A pretrial criminal protective order (§ 136.2) was entered on August 10, 2016,
with no expiration date. The sentencing minute order states: “Criminal Protective Order
Remains. Date of Protective Order: 8/10/2016.” Appellant contends that because the
protective order expired by operation of law at the time of sentencing and the court did
not impose a new protective order at sentencing, the sentencing minute order is in error
and the reference to the protective order should be stricken and the minute order amended
to state the order is terminated.
A criminal protective order issued pursuant to section 136.2 is operative only
during the pendency of the criminal proceedings and as prejudgment orders. (People v.
Selga (2008) 162 Cal.App.4th 113, 118–119.)
As the protective order issued on August 10, 2016 expired, and the court did not
issue any new protective orders at sentencing, the reference to the protective order in the
sentencing minute order must be stricken.
B. Sentence Error in the Abstract of Judgment
As to count 1, the trial court imposed a prison term of 25 years to life. As to count
2, the court imposed a consecutive term of 25 years to life. The total prison term
imposed was 50 years to life.
The abstract of judgment indicates in item No. 5 that appellant was sentenced to a
term of life with the possibility of parole on counts 1 and 2. It indicates in item No. 6c
that appellant was sentenced to a term of 50 years to life on counts 1 and 2. Appellant
contends the box in item No. 5 should have been left blank because appellant did not
receive a “straight life” term and the box in item No. 6b should have been checked

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indicating a sentence of 25 years to life on counts 1 and 2. Appellant contends the
sentence, stated in that manner, indicates four consecutive life terms.
We agree the abstract of judgment does not reflect the oral pronouncement of
judgment and must be amended.
DISPOSITION
We remand with directions that the sentencing minute order entered August 3,
2018, be amended as follows: (1) the sentence “Visitation of child victim prohibited
pursuant to PC1202.05” on page 3 shall be stricken; and (2) the sentence “Criminal
Protective Order Remains. Date of Protective Order: 8/10/16” on page 3 shall be
stricken.
We also direct the abstract of judgment to be amended as follows: (1) uncheck the
box in item No. 5 on page 1; (2) uncheck the box in item No. 6c on page 1; (3) check the
box in item No. 6b on page 1 and indicate the noted term applies to counts 1 and 2; and
(4) in item No. 12 on page 2, under the heading “Other Orders,” strike the first sentence:
“IN COMPLIANCE WITH PC 1202.05, DEFENDANT TO HAVE NO VISITATION
WITH VICTIM.”
In all other respects, the judgment is affirmed.

DE SANTOS, J.
WE CONCUR:

POOCHIGIAN, Acting P.J.

PEÑA, J.

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