Filed 7/16/15 P. v. Camarena CA6
Opinion following rehearing
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041013
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC621612)

         v.

FRANCISCO CAMARENA,

         Defendant and Appellant.



         Defendant Francisco Camarena was convicted by plea of one count of aggravated
sexual assault of a child under the age of 14 (Pen. Code, § 269) and one count of lewd
and lascivious conduct on a child by force, violence, duress, menace, or fear (Pen. Code,
§ 288, subd. (b)(1)). (All further statutory references are to the Penal Code.) On appeal,
he challenges two components of his sentence.
         First, he argues the court violated his ex post facto rights when it imposed a $300
sex offender fine (§ 290.3), since the amount authorized by statue at the time of his
offenses was only $200. The Attorney General contends defendant forfeited this claim
by failing to object below and, in any event, the amount of the fine was authorized by the
applicable statute at the time of defendant’s offenses. We conclude that defendant’s ex
post facto challenge has not been forfeited, but we will reject the claim on the merits
since the amount imposed was authorized at the time of defendant’s offenses.
       Second, defendant initially argued that the court’s order directing him not to have
any contact with the victim must be stricken because the court did not have jurisdiction to
issue such an order. The Attorney General originally conceded this issue. After we filed
our original opinion in this case, we granted rehearing on our own motion and asked the
parties to brief the question whether the no-contact order was authorized by section
136.2, subdivision (i). In their supplemental briefs, both parties agree that (1) section
136.2, subdivision (i) authorizes a no-contact order for up to 10 years, but (2) the trial
court erred when it failed to specify the duration of the no-contact order. Defendant
urges us to strike the no-contact order because its duration exceeds the statutory limit.
       We agree with the parties that the no-contact order was authorized by section
136.2, subdivision (i), but instead of striking the order, we will reverse the judgment with
a remand to the trial court to determine the duration of the order in accordance with the
time limitation and criteria set forth in the statute.

                                             FACTS

       The statement of facts is based on evidence presented at the preliminary hearing
and information from the probation report.
       From 2003 until 2006, the victim in this case (a female child, hereafter “Victim”)
lived with her mother (Mother) in a rented room in defendant’s house in San José.
Initially, defendant and his wife lived in the house. Later, they moved to an apartment.
       After defendant moved, he invited Victim to his apartment on several occasions to
swim and play with his teenage daughter. In January 2006, when Victim was eight years
old, defendant called Mother and said he wanted to take some photographs of Victim to
send to his mother. When Mother asked Victim about it, Victim appeared scared and
nervous and said she did not want to go to defendant’s apartment. When Mother asked



                                                2
her why, Victim said defendant had been molesting her and had touched “her intimate
parts” (Mother’s words). Mother reported defendant to the police that day.
       San José Police Officer Carlos Melo, who is bilingual in English and Spanish,
investigated this case in 2006. He interviewed Victim twice. Victim told him she had
been to defendant’s home several times. She said defendant took her into his bedroom,
blindfolded her, had her pull down her pants and underwear, and touched her vagina with
his hands. On one occasion, he touched his penis to her vagina. Victim would not use
the word “penis.” Instead, she used the Spanish word “cola,” which the officer testified
is slang for “penis.” Victim told Officer Melo that defendant put his “cola” inside her
vagina and also put his fingers inside her. She said it hurt when defendant touched her
with his “cola.”
       The prosecution filed a felony complaint in February 2006, but defendant was not
arrested until November 2012.
       At the time of the preliminary hearing in September 2013, Victim was 16 years
old. She testified that when she was around eight years old, defendant picked her up and
took her to his apartment on “several” occasions. After they went swimming in the
apartment pool, defendant took her into his bedroom. He told her to take off her pants
and underwear, which she did because she was “scared he would do something” to her.
He then covered her eyes with a blindfold and touched her private parts, meaning her
vagina, with his fingers. He also put his fingers inside of her. After he was done,
defendant took Victim home and told her not to tell anyone, including Mother.
       At the preliminary hearing, Victim could not recall defendant touching her with
his penis. She testified that to her mind, the Spanish word “cola”—which means “tail”—
is used to refer to male genitalia. She did not recall telling the police that defendant had
touched her with his “cola.” She had reviewed her statement in the police report and
acknowledged that the report indicated she had said defendant touched her with his

                                              3
“cola.” But the statement did not refresh Victim’s recollection and she could not recall
defendant touching her with his penis. Victim nonetheless testified that defendant
touched her inappropriately more than 10 times.
       When the police interviewed defendant in 2006, he “initially denied any
wrongdoing; however, he later . . . admitted to touching [Victim’s] vagina over and under
her clothing on more than one occasion. [Defendant] expressed remorse; however, [he]
denied exposing his penis to [Victim], and also denied digitally penetrating her.”

                                 PROCEDURAL HISTORY

       In February 2006, the prosecution filed a felony complaint charging defendant
with two counts of aggravated sexual assault of a child under the age of 14 (§ 269). The
first sexual assault count was based on the alleged rape (§ 261, subd (a)(2)) of Victim.
The second sexual assault count was based on the alleged penetration of Victim with a
foreign object (§ 289, subd. (a)). The prosecution also charged defendant with one count
of attempting to dissuade a witness (§ 136.1, subd. (b)(1)).
       Defendant was arrested in Seattle, Washington, in November 2012. In December
2012, the prosecution filed an amended felony complaint for extradition, which charged
the same offenses as the original complaint. Defendant’s extradition was delayed and he
was released from custody; he was rearrested in March 2013 and extradited to California.
       After the preliminary hearing in September 2013, the prosecution filed an
information charging defendant with three counts of aggravated sexual assault of a child
under the age of 14 (§ 269) and one count of attempting to dissuade a witness (§ 136.1,
subd. (b)(1)). The information alleged that each of the sexual assault counts occurred on
or between September 1, 2004, and December 15, 2005, at which time Victim was seven
and eight years old. During that time frame, defendant was 44 to 46 years old.



                                             4
       In November 2013, the parties entered into a negotiated disposition. As part of
their agreement, the prosecution filed an amended information, charging defendant with
one count of aggravated sexual assault of a child under the age of 14 (§ 269) and one
count of lewd and lascivious conduct on a child by force, violence, duress, menace, or
fear (§ 288, subd. (b)(1)). Pursuant to the plea agreement, defendant pleaded guilty to
both counts in the amended information in exchange for a sentence of 18 years to life
(15 years to life on the sexual assault count plus three years on the lewd and lascivious
conduct count).
       In March 2014, defendant retained new counsel and his new attorney filed a
motion to withdraw defendant’s plea. After conducting an evidentiary hearing, the trial
court denied the motion. (The order on the motion to withdraw the plea is not at issue on
appeal.)
       In May 2014, the court sentenced defendant to 15 years to life on the aggravated
sexual assault count consecutive to the lower term of 3 years on the lewd and lascivious
conduct count. The court also imposed fines and fees, including a sex offender fine
(§ 290.3), and ordered defendant to register as a sex offender (§ 290, subd. (c)). As for
the sex offender fine, the court found that defendant had the “ability to pay through
prison wages, as well as [his] job skills, a fine of $300, plus penalty assessments,
pursuant to section 290.3 . . . .” The court ordered defendant to “have no contact with the
victims [sic] in this matter,” and it issued an order “prohibiting visitation between
[defendant] and the child victims [sic].”

                                        DISCUSSION

       Defendant challenges the amount imposed for the sex offender fine and the court’s
order directing him to “have no contact with the victims [sic] in this matter.”



                                              5
   I. The Trial Court Did Not Err in Imposing a $300 Sex Offender Fine

       In his challenge to the amount imposed for the sex offender fine, defendant argues
that the court “violated [his] ex post facto rights when it imposed a [sex offender] fine in
the amount of $300 because at the time he committed the offense, the amount was $200.”
(Bold and all caps omitted.) “ ‘[T]he ex post facto clauses of the state and federal
Constitutions are “aimed at laws that ‘retroactively alter the definition of crimes or
increase the punishment for criminal acts.’ ” ’ [Citation.]” (People v. Alford (2007)
42 Cal.4th 749, 755.)
       The Attorney General contends that defendant forfeited his challenge to the
amount of the sex offender fine by failing to object to the fine in the trial court. On the
merits, she argues the $300 imposed was authorized by the version of section 290.3 in
effect when defendant committed his crimes.

       A. Legal Principles Governing the Section 290.3 Sex Offender Fine

       At the time of defendant’s offenses in 2004 and 2005, former section 290.3
provided in relevant part: “(a) Every person who is convicted of any offense specified in
subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both,
imposed for violation of the underlying offense, be punished by a fine of two hundred
dollars ($ 200) upon the first conviction or a fine of three hundred dollars ($ 300) upon
the second and each subsequent conviction, unless the court determines that the
defendant does not have the ability to pay the fine.” (Stats. 1995, ch. 91, § 121, p. 346.)
Both of defendant’s offenses were subject to the fine. (Former § 290, subd. (a)(2).)
       The Legislature amended section 290.3 in 2006. Among other things, the
amendments increased the amount of the sex offender fine to “three hundred dollars
($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second
and each subsequent conviction, unless the court determines that the defendant does not
                                              6
have the ability to pay the fine.” (§ 290.3; Stats. 2006, ch. 337, § 18, eff. Sept. 20, 2006;
People v. Walz (2008) 160 Cal.App.4th 1364, 1368, fn. 6.)
       The Legislature has amended section 290.3 several times since it was enacted in
1988. (Stats. 1988, ch. 1134, § 1; Historical and Statutory Notes, 48 West’s Ann. Pen
Code (2014 ed.) foll. § 290.3, pp. 135-138.) We shall hereafter use the phrase “former
section 290.3” to refer to the version of the statute in effect in 2004 and 2005 when
defendant committed the offenses in this case.
       Citing People v. Valenzuela (2009) 172 Cal.App.4th 1246 (Valenzuela), defendant
urges us to modify the $300 sex offender fine in this case and reduce it to $200. The
defendant in Valenzuela was convicted of one offense (lewd conduct (§ 288, subd. (a))
that was subject to the sex offender fine. (§§ 290.3, subd. (a); 290, subd. (c).) On appeal,
the defendant argued that the court violated his ex post facto rights when it imposed a sex
offender fine of $300 since his offense occurred in 2003 and 2004, prior to the
amendment that increased the fine for a first conviction from $200 to $300. (Id. at
p. 1248.) The Valenzuela court held that the prohibition against ex post facto laws
applies to a section 290.3 sex offender fine. (Valenzuela, at p. 1248.) The court also held
that “under ex post facto principles, the assessable amount of a fine is calculated as of the
date of the offense.” (Id. at p. 1248, citing People v. Saelee (1995) 35 Cal.App.4th 27,
30.) The court concluded that the fine imposed was an unauthorized sentence since the
amount assessed was not based on the date of the defendant’s offense and “modif[ied] the
$300 section 290.3 . . . fine to $200, the amount statutorily authorized when [the]
defendant violated section 288, subdivision (a).” (Valenzuela, at pp. 1248-1249.)

       B. Forfeiture

       The Attorney General argues that defendant has forfeited his challenge to the
section 290.3 fine by failing to object in the trial court.

                                               7
       As we have noted, the Valenzuela court held that (1) under ex post facto
principles, the amount of the section 290.3 fine is calculated as of the date of the offense,
and (2) a fine that violates ex post facto principles is an unauthorized sentence.
(Valenzuela, supra, 172 Cal.App.4th at p. 1248.) “The California Supreme Court has
held that an unauthorized sentence may be corrected at any time even if there was no
objection in the trial court.” (Id. at p. 1249, citing In re Sheena K. (2007) 40 Cal.4th 875,
886 and People v. Smith (2001) 24 Cal.4th 849, 854.) “Such an unauthorized sentence
may be corrected even when raised for the first time on appeal.” (Valenzuela, at p. 1249,
citing People v. Smith, 24 Cal.4th at p. 854 and People v. Scott (1994) 9 Cal.4th 331, 354
(Scott).)
       Quoting Scott, supra, 9 Cal.4th at page 354, the Attorney General argues that “an
unauthorized sentence is one which ‘could not lawfully be imposed under any
circumstances in the particular case.’ ” She asserts that claims “ ‘deemed waived on
appeal involve sentences which, though otherwise permitted by law, were imposed in
procedurally or factually flawed manner.’ ” She contends that since the sex offender fine
was lawfully imposed under the version of section 290.3 in effect at the time of
defendant’s offenses, to the extent it was imposed in a procedurally or factually flawed
manner, it has been forfeited on appeal because defendant did not object when it was
imposed.
       We disagree with the Attorney General on the forfeiture issue. Defendant has
challenged the sex offender fine on ex post facto grounds. We will follow Valenzuela
and hold that a fine that violates ex post facto principles is an unauthorized sentence that
we may review even when raised for the first time on appeal. (Valenzuela, supra,
172 Cal.App.4th at pp. 1248-1249.) That a defendant may not prevail on the merits of an
ex post facto claim does not mean the claim has been forfeited.



                                              8
       C. The $300 Sex Offender Fine Does Not Violate Ex Post Facto Principles

       Defendant contends the court “violated [his] ex post facto rights when it imposed a
[sex offender] fine in the amount of $300 because at the time he committed the offense,
the amount was $200.” We disagree. Defendant was convicted of two crimes that
required imposition of the sex offender fine and the statute in effect at the time of his
offenses authorized a sex offender fine of up to $500 for the two convictions.
       At the time of defendant’s offenses, convictions for both (1) aggravated sexual
assault of a child under 14 (§ 269) and (2) lewd and lascivious conduct (§ 288) required
imposition of the sex offender fine. (Former § 290.3, subd. (a) (Stats. 1995, ch. 91,
§ 121, p. 346) & former § 290, subd. (a).) Thus, unlike the defendant in Valenzuela, who
was convicted of only one offense that supported imposition of a section 290.3 fine,
defendant was convicted of two offenses that support imposition of the fine.
       Under former section 290.3, the amount of the sex offender fine was “two hundred
dollars ($200) upon the first conviction” and “three hundred dollars ($300) upon the
second and each subsequent conviction, unless the court determines that the defendant
does not have the ability to pay the fine.” (Former § 290.3, subd. (a); italics added.)
       People v. O’Neal (2004) 122 Cal.App.4th 817 (O’Neal) is instructive. In that
case, the defendant was convicted of two offenses that were subject to the section 290.3
sex offender fine. The trial court imposed two sex offender fines plus penalty
assessments, for a total of $1,350. (Id. at p. 822.) On appeal, the defendant argued that
the court should have imposed only one section 290.3 fine and that “multiple fines for
multiple convictions in the same case are prohibited.” (O’Neal, at p. 822.) The appellate
court disagreed and held that the “statute does not limit the number of fines that may be
imposed for multiple convictions in the same case.” (Ibid.) The court explained: “the
statute refers to fines for convictions, not fines for proceedings,” and since the defendant
pleaded guilty to two counts, “[e]ach count involved a separate conviction.” (Ibid.; italics
                                              9
added.) Thus, the defendant “had a second or subsequent conviction under section
290.3.” (Ibid.)
       Defendant here, like the defendant in O’Neal, had two convictions that supported
imposition of the section 290.3 sex offender fine. Under the version of section 290.3 in
effect at the time of his offenses, the court was required to impose a fine of $500—$200
for his first conviction and $300 for his second conviction—unless the court determined
that defendant did “not have the ability to pay the fine.” (Former § 290.3, subd. (a);
O’Neal, supra, 122 Cal.App.4th at p. 822.) The court imposed a fine of $300, which was
less than the amount required by section 290.3. But the court also made an express
finding that defendant had the ability to pay a $300 fine, plus the penalty assessments
attached thereto.1 We infer from that finding that the court concluded that defendant did
not have the ability to pay the $500 fine plus penalty assessments and instead ordered
him to pay $300 plus the assessments. (People v. Burnett (2004) 116 Cal.App.4th 257,
261.) Since the court’s order was made within the lawful bounds of former section 290.3,
there was no ex post facto violation.

   II. The Trial Court Erred in Imposing a No-Contact Order of Unlimited Duration

       A. Background

       Prior to sentencing, the probation officer recommended the “Court issue an order
prohibiting visitation between the defendant and the child victim(s) pursuant to Section
1202.05 . . . .” The probation report contains a handwritten notation next to this
recommendation that says: “+ no contact.” At sentencing, the court stated: “I’m
ordering that you have no contact with the victims [sic] in this matter. Also pursuant to
section 1202.05, I’m issuing an order prohibiting visitation between you and the child


       1
           The amount of the penalty assessments is not at issue on appeal.
                                             10
victims [sic].” The abstract of judgment says: “No contact with victim.” Defendant
challenges the portion of the court’s order that directs him not to have any contact with
the victims. As the Attorney General notes, this issue is cognizable on appeal despite
defendant’s failure to object to the no-contact order at sentencing since it involves the
jurisdictional validity of the no-contact order and a claim that it was not authorized by
statute. (People v. Robertson (2012) 208 Cal.App.4th 965, 995-996 (Robertson), citing
People v. Ponce (2009) 173 Cal.App.4th 378, 381-382 (Ponce).)

       B. Contentions and Analysis

       First, acknowledging that “the court may have simply misspoken,” defendant
challenges the court’s order to stay away from the “victims,” arguing that there was only
one victim. Based on the wording of the probation report—its use of the phrase “child
victim(s),” which it appears the court relied on in pronouncing sentence—we agree that
the court misspoke when it used the plural term to refer to Victim.
       Second, in his original briefs, defendant urged us to strike the no-contact order.
He argued that the court was without jurisdiction to make the order. He contended that
“[w]hen a court has sentenced a defendant to prison, it is without jurisdiction to order
probationary terms to be followed.” He also argued that while the court can order no
visitation pursuant to section 1202.05, “it cannot order the further term that [defendant]
have no contact with the victim.”
       In response, the Attorney General agreed that the no-contact order should be
stricken because it was not authorized by section 1202.05, which only prohibits
visitation. Neither party briefed the applicability of section 136.2.
       After we filed our original opinion, we granted rehearing on our own motion and
asked the parties to brief the following questions: (1) Does section 136.2, subdivision (i)



                                             11
provide statutory authority for the no-contact order? (2) If so, does the no-contact order
in this case comply with the requirements of section 136.2, subdivision (i)?
       In their supplemental briefs, both parties argue that section 136.2 authorizes a no-
contact order for up to 10 years, but the court erred when it failed to specify the duration
of the order. We agree.
       Several statutes permit entry of protective orders in criminal cases. “For example,
section 136.2, subdivision (a) authorizes issuance of a protective order during the
duration of criminal proceedings.” (Robertson, supra, 208 Cal.App.4th at p. 996; Ponce,
supra, 173 Cal.App.4th at pp. 382-383; § 136.2, subd. (i).) “Section 1203.1, subdivision
(i)(2), which authorizes a no-contact order in some sex offense cases, only applies where
the defendant is granted probation. Section 1201.3, subdivision (a) authorizes a no-
contact order for a period of up to 10 years but only when the defendant was convicted of
a sexual offense involving a minor victim” and defense counsel has received a notice of
intent to request or impose such an order. (Robertson, supra, 208 Cal.App.4th at p. 996;
§ 1201.3, subds. (a), (c).) In Robertson, the court ultimately struck the no-contact order
in that case on the grounds that it was not authorized by any statute. (Robertson, supra,
208 Cal.App.4th at pp. 996-997.)
       Unlike Robertson, we find statutory authority for the no-contact order imposed in
this case. As the Third District Court of Appeal recently observed in People v. Therman
(2015) 236 Cal.App.4th 1276 (Therman), “[s]ection 136.2 primarily authorizes trial
courts to issue prejudgment restraining orders to protect victims and witnesses during the
pendency of the criminal action in which they are issued. [Citations.] [¶] Effective
January 1, 2012, however, a new subdivision, subdivision (i), was added to section 136.2
. . . [requiring] trial courts to consider the issuance of postjudgment protective orders” in
specified cases. (Therman, at pp. 1278-1279, original italics; see also Stats. 2011,
ch. 155, § 1, p. 2222.)

                                              12
       Subdivision (i)(1) of section 136.2 provides: “[i]n all cases in which a criminal
defendant has been convicted of a crime of domestic violence as defined in Section
13700, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant
to register pursuant to subdivision (c) of Section 290, 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. This protective
order may be issued by the court regardless of whether the defendant is sentenced to the
state prison or a county jail, or whether imposition of sentence is suspended and the
defendant is placed on probation. 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.” (Italics added.)
       Defendant was convicted of aggravated sexual assault of a child (§ 269) and lewd
and lascivious conduct on a child by force, violence, duress, menace, or fear (§ 288,
subd. (b)(1)). Both convictions require him to register as a sex offender pursuant to
section 290, subdivision (c); therefore, the no-contact order was authorized by section
136.2, subdivision (i). But the court did not specify the duration of the no-contact order.
Since the trial court determined that a no-contact order was appropriate in the
circumstances of this case, we will remand to the trial court for the limited purpose of
determining the duration of the order in accordance with the criteria in section 136.2,
subdivision (i)(1).

                                        DISPOSITION

       The judgment is reversed. The case is remanded to the trial court for the limited
purpose of determining the duration of the no-contact order in accordance with the
criteria in section 136.2, subdivision (i)(1).

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                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________
Rushing, P. J.




______________________________________
Grover, J.
