People v. Valdivia CA4/2 ( 2014 )

Filed 11/4/14 P. v. Valdivia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059857
v. (Super.Ct.No. SWF1102589)
CARLOS OCTAVIO VALDIVIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed as modified.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy
Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Carlos Octavio Valdivia is serving 19 years in state prison for a series
of sex crimes committed against his 13-year-old neighbor. Defendant challenges only the
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trial court’s order that he participate in sex-crimes counseling in prison. Defendant
argues, the People concede, and we agree, that the order should be stricken as invalid
because not authorized by statute.
FACTS AND PROCEDURE
Defendant committed a number of sex crimes against his 13-year-old neighbor
between January and September of 2011. On September 5, 2013, a jury convicted him of
four counts of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd.
(a)),1 sexual penetration of a child under age 14 (§ 289, subd. (j)), three counts of
unlawful sexual intercourse with a minor under age 16 by a perpetrator older than 21
(§ 261.5, subd. (d)), oral copulation of a child under age 14 (§ 288a, subd. (c)(1)), and
sodomy of a child under age 14 (§ 286, subd. (c)(1)).
On October 18, 2013, the trial court sentenced defendant to 19 years in state
prison. The court began to impose a drug counseling requirement recommended in the
probation report pursuant to section 1203.096, but instead said “I’m striking that. It says
for substance abuse. [¶] I will order you to participate in all counseling or educational
programs having as a component programs related to the crimes for which you have been
convicted, which are for sex crimes.”
This appeal followed.
1 All section references are to the Penal Code unless otherwise indicated.
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DISCUSSION
Defendant argues the trial court erred when it required defendant to participate in
sex crime counseling without statutory authority to do so. The People concede and this
court agrees, having found no statute authorizing the trial court to impose a requirement
that defendant seek sex crime counseling while in prison. A court has discretion in
sentencing, but this discretion must be based on punishment prescribed by statute.
(People v. Lara (1984) 155 Cal. App. 3d 570, 574.)
DISPOSITION
The judgment is modified to strike the order that defendant attend sex crimes
counseling while in prison. The trial court clerk is ordered to issue an amended abstract
of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
GAUT
J.*
We concur:
RAMIREZ
P. J.
McKINSTER
J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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