People v. Gonzalez CA5 ( 2021 )

Filed 4/15/21 P. v. Gonzalez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080846
Plaintiff and Respondent,
(Super. Ct. No. F10905110)
v.
GREGORIO MYERS GONZALEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Michael G.
Idiart, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Gregorio Myers Gonzalez pled no contest to one count each of sexual
intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7,
* Before Franson, Acting P.J., Smith, J. and Snauffer, J.
subd. (a))1 and oral copulation or sexual penetration with a child 10 years of age or
younger (§ 288.7, subd. (b)). The court sentenced him to 40 years to life in prison,
imposed various fines and fees, and issued a no-visitation order pursuant to
section 1202.05. That section requires a court to prohibit all visitation between an
imprisoned defendant and a child victim if the defendant is convicted of at least one of
certain enumerated sex offenses.
Gonzalez’s sole issue on appeal is that neither offense he pled no contest to is
enumerated in section 1202.05, and therefore the no-visitation order issued thereunder
was unauthorized and must be vacated. The People agree the section 1202.05 order must
be vacated, but ask us to remand the matter for the trial court to consider issuing a
restraining order under section 136.2, subdivision (i)(1). That subdivision requires a
court, at the time of sentencing, to consider issuing a no-contact restraining order
between the defendant and victim if the defendant is convicted of a crime involving
domestic violence or a crime that requires registration as a sex offender pursuant to
section 290, subdivision (c). (§ 136, subd. (i)(1).) Both offenses Gonzalez pled no
contest to require sex offender registration. (§ 290, subd. (c)(1).)
Gonzalez counters that he committed his crimes in 2010, and section 136.2,
subdivision (i)(1), was not amended until 2014 to include crimes requiring registration
under section 290, subdivision (c). Hence, he contends imposing a restraining order
under section 136.2, subdivision (i)(1), would violate ex post facto principles and
section 3.
We concur with the parties the section 1202.05 no-visitation order was
unauthorized and must be vacated. However, we conclude that imposing a restraining
order under section 136.2, subdivision (i)(1), would not violate ex post facto principles or
section 3. And since section 136.2, subdivision (i)(1), provides a statutory basis for the
1 Undesignated statutory references are to the Penal Code.
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type of contact-restricting order the trial court intended to issue, we conclude it is
appropriate to remand the matter for the trial court to consider imposing a restraining
order under section 136.2, subdivision (i)(1).
FACTUAL AND PROCEDURAL BACKGROUND
I. The crimes2
On the evening of October 4, 2010, the eight-year-old victim (CV) and her
six-year-old neighbor were playing in front of their homes in Fresno when Gonzalez
drove up in his truck and offered to take the girls to the store so he could buy them candy.
The girls ignored him. He got out, picked up CV and put her in his truck, and sped away.
Police were called and began investigating.
Early the next morning, a truck came to the attention of Victor P., who lived on
CV’s street. Victor’s suspicion grew because the truck matched the description of the
one involved in the abduction. He got into his own truck and followed it. He caught up
with the other truck and yelled to the driver, later identified as Gonzalez, that he wanted
to talk to him. Victor saw a girl’s head pop up as he tried maneuvering in front of
Gonzalez to force him to stop. Victor recognized the girl as CV.
Victor got Gonzalez to stop and yelled that Gonzalez could not leave. Gonzalez
opened the passenger door, pushed CV out, and drove off. CV was shaking and told
Victor she was scared. Witnesses called 911.
CV underwent a sexual assault examination at the hospital that revealed the
presence of Gonzalez’s sperm on a vaginal swab and a rectal smear. CV told police how
she was kidnapped, taken to a wooded area, and vaginally and anally raped. Gonzalez
also orally copulated her. Police later located Gonzalez and questioned him and found
evidence in his truck linking him to the crime. Victor identified Gonzalez as the man he
had tried to detain, and CV identified him as her assailant.
2 We summarize the facts that pertain to the counts to which he pled no contest.
3.
II. Court proceedings
The Fresno County District Attorney filed an information on July 23, 2012,
charging Gonzalez with forcible lewd act on a child (§ 288, subd. (b)(1); counts 1
through 3), sexual intercourse or sodomy with a child 10 years of age or younger
(§ 288.7, subd. (a); counts 4 and 5), oral copulation or sexual penetration with a child
10 years of age or younger (§ 288.7, subd. (b); count 6), and indecent exposure (§ 314.1;
counts 7 and 8). As to counts 1 through 3, it was further alleged Gonzalez kidnapped CV
and that CV was a child under 14 years of age (§ 667.61, subds. (d)(2) & (j)(1)).
On October 7, 2019, Gonzalez pled no contest to counts 5 and 6 with the
understanding he would receive an indeterminate term with no parole eligibility for
40 years. On February 19, 2020, the trial court sentenced Gonzalez in accordance with
the plea bargain by imposing an indeterminate term with no parole eligibility for 15 years
on count 6 and an indeterminate term with no parole eligibility for 25 years as to count 5,
the terms to be served consecutively. At the same time, the court ordered under
section 1202.05 that there be “no visitation whatsoever” between Gonzalez and CV.
Gonzalez timely filed a notice of appeal and the trial court granted his request for
a certificate of probable cause.
DISCUSSION
Gonzalez’s sole contention on appeal is that the section 1202.05 no-visitation
order was unauthorized and must be vacated. The People concede the order must be
vacated, but ask us to remand for the court to consider issuing a restraining order under
section 136.2, subdivision (i)(1). We conclude that remand is proper for that limited
purpose and that a restraining order under section 136.2, subdivision (i)(1) would not
violate ex post facto principles or section 3.
A. The section 1202.05 order was unauthorized
Section 1202.05 provides in pertinent part: “Whenever a person is sentenced to
the state prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285,
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286, 288, 288.5, or 289, or former Section 288a, and the victim … is a child under the
age of 18 years, the court shall prohibit all visitation between the defendant and the child
victim.” Gonzalez pled guilty to one violation each of section 288.7, subdivision (a), and
section 288.7, subdivision (b). Neither of these offenses is enumerated in
section 1202.05, and therefore the court was not authorized to issue a no-visitation order
under that section. The order must be vacated.3
B. Remand is nevertheless appropriate
The People contend we should nevertheless remand the matter to the trial court to
consider imposing a restraining order under section 136.2, subdivision (i)(1). Gonzalez
counters that issuing a restraining order under that subdivision would violate ex post
facto principles and section 3. We agree with the People that remand is appropriate.
1. Ex post facto principles
Section 136.2, subdivision (i)(1) states, in relevant part: “When a criminal
defendant has been convicted of a crime involving domestic violence ... or a 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 a victim of the crime. 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.” (§ 136.2,
subd. (i)(1), Stats. 2019, ch. 256, § 6, eff. Jan. 1, 2020.)
3 The parties also correctly note that Gonzalez’s challenge to the no-visitation
order was not forfeited despite his failure to object in the trial court. “A claim that a
sentence is unauthorized….may be raised for the first time on appeal, and is subject to
judicial correction whenever the error comes to the attention of the reviewing court.”
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; accord People v. Andrade (2002)
100 Cal.App.4th 351, 354 [“[c]laims involving unauthorized sentences or sentences
entered in excess of jurisdiction can be raised at any time”].)
5.
Section 290, subdivision (c)(1), requires any person convicted of violating
section 288.7 to register as a sex offender. Gonzalez, who pled no contest to violating
section 288.7, subdivisions (a) and (b), was thus required to register under section 290,
subdivision (c). Because he was required to register pursuant to section 290,
subdivision (c), he would be within the purview of section 136.2, subdivision (i)(1).
Gonzalez does not dispute that section 136.2, subdivision (i)(1), authorizes no-
contact orders like the one imposed here. Rather, he contends that application of
section 136.2, subdivision (i)(1), to his case violates ex post facto principles because he
committed his crimes in 2010, and subdivision (i)(1) was not amended until 2014 to
include defendants convicted of crimes requiring registration under section 290,
subdivision (c). (Former Stats. 2013, ch. 291, § 1.5, eff. July 1, 2014, repealed by former
Stats. 2014, ch. 71, § 115, eff. Jan. 1, 2015.)4
“[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.” ’ ” (People v. Grant (1999) 20 Cal.4th 150, 158.) Gonzalez concedes the
2014 amendment to section 136.2, subdivision (i)(1), did not alter the definition of his
crime. He contends, however, that it increased the punishment for his crime. He is
incorrect.
In determining whether section 136.2, subdivision (i)(1), increased the punishment
for Gonzalez’s crimes, “we consider ‘whether the Legislature intended the provision to
constitute punishment and, if not, whether the provision is so punitive in nature or effect
that it must be found to constitute punishment despite the Legislature’s contrary intent.’ ”
(People v. Alford (2007) 42 Cal.4th 749, 755 (Alford ).) “ ‘If the intention of the
legislature was to impose punishment, that ends the inquiry. If, however, the intention
4
Section 136.2, subdivision (i)(1), has not substantively changed since this
amendment.
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was to enact a regulatory scheme that is civil and nonpunitive, we must further examine
whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the
State’s] intention’ to deem it ‘civil.’ ’’ [Citations.] Because we “ordinarily defer to the
legislature’s stated intent,” [citation], “ ‘only the clearest proof’ ’’ will suffice to override
legislative intent and transform what has been denominated a civil remedy into a criminal
penalty,” [citations].’ ” (Ibid.)
Section 136.2, subdivision (i)(1), sets forth legislative intent: “It is the intent of the
Legislature in enacting this subdivision that the duration of a 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 a victim and the victim’s immediate family.”
(§ 136.2, subd. (i)(1).) Given this stated intention, it is apparent that the Legislature
enacted section 136.2, subdivision (i)(1), for the purpose of victim protection, a
nonpunitive intention. Thus, the issue is whether section 136.2, subdivision (i)(1), is so
punitive in nature or effect that it must be found to constitute punishment.
Gonzalez has not shown how a no-contact restraining order would be at all
burdensome to him, let alone so burdensome in effect so as to constitute punishment. He
does not state that he lives near CV, is related to CV, or that he is acquainted with CV’s
family and friends. He does not identify any activities he would be precluded from
pursuing due to the restraining order, and he does not identify any relationships that
would be lost or destroyed due to the restraining order. Moreover, he ignores the
circumstance that he is serving a 40-years-to-life prison sentence. Given that
section 136.2, subdivision (i)(1), authorizes a stay-away order with a maximum duration
of 10 years, there is only a short period of time during which he must conform his
movement and conduct to the terms of the order.
We also see nothing in section 136.2, subdivision (i)(1), that suggests it is
generally punitive in nature; an order prohibiting victim contact for up to 10 years is
rationally related to the nonpunitive purpose of victim protection and cannot be deemed
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excessive with respect to that purpose. (Alford, supra, 42 Cal.4th at p. 757 [relevant
factors in determining whether a statute is punitive include whether the statute has a
rational connection to a nonpunitive purpose and whether the statute is excessive with
respect to this purpose].) Gonzalez asserts that a section 136, subdivision (i)(1),
restraining order is punitive because violating it would be a punishable offense. (See
§ 166, subd. (a)(4) [willfully disobeying a court order is a misdemeanor].) We disagree.
Two cases from the California Supreme Court, considered together, synthesize the rule
that an order issued as part of a criminal sentence is not punitive simply because violating
the order would be a crime.
In 1999, our Supreme Court decided People v. Franklin (1999) 20 Cal.4th 249(Franklin), and People v. Castellanos (1999) 21 Cal.4th 785 (Castellanos). Both cases
involved questions regarding the application of certain provisions of section 290. In
Franklin, decided in May 1999, the defendant was convicted of failing to comply with
the sex offender registration law after failing to notify state authorities of his move to
Texas. (Franklin, supra, 20 Cal.4th at pp. 250—251.) The question on appeal was
whether the notification requirement in effect at the time the defendant moved to Texas
applied to persons who left the state to live elsewhere. (Id. at p. 251.) The Court began
its analysis by noting that “failure to comply with California’s sex offender registration
law constitutes a penal offense.” (Id. at p. 253.) A footnote in that same paragraph of the
opinion states: “We express no opinion on whether the obligation that a person register
as a sex offender, imposed as a consequence of a conviction of a criminal offense,
constitutes punishment for purposes of ex post facto analysis. That issue is before us in
People v. Castellanos, S064388.” (Ibid., fn. 2.)
In Castellanos, decided in August 1999, the trial court ordered a convicted sex
offender to register under a provision in section 290 that became effective after he
committed his offenses. (Castellanos, supra, 21 Cal.4th at p. 788.) The Supreme Court
upheld the trial court’s order, concluding the requirement that a person register as a sex
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offender does not constitute punishment for purposes of ex post facto analysis. (Ibid.)
The Court referenced Franklin, writing: “In People v. Franklin […], we held that ‘failure
to comply with California’s sex offender registration law constitutes a penal offense,’ but
‘express[ed] no opinion on whether the obligation that a person register as a sex offender,
imposed as a consequence of a conviction of a criminal offense, constitutes punishment
for purposes of ex post facto analysis,’ noting that that issue is before us in the present
case.” (Id. at p. 791, fn. 3.)
These statements from Franklin and Castellanos, considered together, illustrate
that an order or other requirement imposed on a convicted person is not punitive for ex
post facto purposes just because failing to comply with the imposition is a punishable
offense.
In light of the foregoing, we conclude section 136.2, subdivision (i)(1), does not
constitute punishment for ex post facto purposes.
2. Section 3
Gonzalez alternatively argues a section 136.2, subdivision (i)(1), restraining order
would violate section 3, which provides no part of the Penal Code “is retroactive, unless
expressly so declared.” However, issuing a restraining order against Gonzalez under
subdivision (i)(1) of section 136.2 would not require a retroactive application because
that subdivision was amended to apply to sex offenders before Gonzalez was sentenced.5
Stats. 2019, ch. 256, § 6, eff. Jan. 1, 2020.) Again, subdivision (i)(1) requires a trial
court, at the time of sentencing, to consider issuing a restraining order against a defendant
convicted of a sex offense requiring registration under section 290.
In sum, issuing a restraining order under section 136.2, subdivision (i)(1), would
not violate ex post facto principles or section 3. The appropriate disposition is to remand
5 To be exact, the statute was amended before Gonzalez was even convicted by his
plea.
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the matter for the trial court to consider issuing a restraining order under
subdivision (i)(1) because that subdivision provides a statutory basis for the kind of
contact-restricting order the trial court improperly imposed under section 1202.05.
DISPOSITION
The matter is remanded for the trial court to consider issuing a restraining order
under Penal Code section 136.2, subdivision (i)(1). In all other respects, the judgment is
affirmed.
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