Filed 4/11/18 P. v. Vaca 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

PHILLIP PAUL VACA,

Defendant and Appellant.


E066828

(Super.Ct.No. RIF1500547)

OPINION


APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed.
Melissa Hill, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Phillip Paul Vaca molested his two biological daughters, H.V. (Doe1) and P.V. (Doe2), when they were under the age of 14 years.
Defendant was convicted of three counts of lewd conduct with a child under 14 years of age by use of force, violence, duress, menace and fear of immediate and unlawful bodily injury against Doe1 (§ 288, subd. (b)(1)) committed between January 4, 2013, and January 15, 2015. In addition, he was convicted of one count of lewd conduct against Doe2 within the meaning of section 288, subdivision (a) committed between April 21, 2014, and January 15, 2015. Defendant was sentenced to 21 years to be served in state prison. A criminal protective order (CPO) was issued for defendant to have no contact with Doe1 and Doe2 until August 26, 2026.
Defendant makes the following claims on appeal:
1. Insufficient evidence was presented to support defendant’s conviction of a violation of Penal Code section 288, subdivision (a) upon Doe2.
2. The trial court abused its discretion by admitting expert testimony on Children Sexual Abuse Accommodation Syndrome (CSAAS).
3. The trial court exceeded its jurisdiction by entering a restraining order prohibiting defendant from having any contact with his children until August 26, 2026.
We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. THE INCIDENTS BETWEEN DEFENDANT AND DOE1
Doe 1 was born on January 4, 2005, and was 11 years old at the time of trial. She had just completed fifth grade when she testified. Doe1 lived with her mother, C.V. (Mother), and her sister, 10-year-old Doe2. She was close with her mom. Doe1 liked being around defendant. He was fun and she cared about him.
When Doe1 was in third grade, she, Mother, defendant and Doe2 lived in a three-bedroom apartment in Canyon Crest. At that time, defendant and Mother did not share a room. Doe2 slept in a bedroom with Mother and Doe1 slept in a room with defendant. The third bedroom was packed with their belongings. While she was still in the third grade, they lived in a condominium.
When Doe1 was eight years old, and in the third grade, defendant touched her private parts, which she described as where she went “pee.” Doe1 claimed she would play a tickle game with defendant. Doe2 would play the game with them. When they lived in the condominium, they were on her bed in a bedroom she shared with Doe2. During the tickle game, defendant accidently touched her where she went “number one.” Doe2 was in the room. Doe1 was wearing pajama bottoms and underwear. He touched her over her pajama bottoms.
On another occasion, when they lived in the apartment, he touched her under her clothes. She had a hard time discussing it because it was embarrassing. She would have been in second or third grade. It was nighttime and they were lying together on the bed. She and defendant were lying on their sides; defendant was behind her. He reached his arm over her and reached under her pajama pants. He touched her vagina over her underwear with three of his fingers. He then reached underneath her underwear and touched one finger to her vagina skin-to-skin. He kept his finger there from 30 seconds to one minute; it felt weird. He touched her skin-to-skin approximately five other times. On occasion, she tried to make him stop by touching his hand or pulling up the covers. Defendant was behind her when he touched her so she could not tell if he was awake or asleep.
Doe1 could not recall a time when defendant followed her into Mother’s room and touched her. Doe1 claimed defendant never touched her when they lived in the house. Doe1 did not recall defendant ever touching Doe2.
Defendant was “weird” when he would drink alcohol. Doe1 missed defendant. She visited him in custody on the weekends. She liked it better when he was living with her.
B. INCIDENTS BETWEEN DEFENDANT AND DOE2
Doe2 had just turned 10 years old on April 21, 2006. She had completed the fourth grade. She lived with Mother and Doe1. Doe2 was asked if defendant ever touched her private part. She responded, “He was tickling me so it was an accident.” He touched her where she went “number one.” Doe2 had been about to take a shower and was naked. They played a game of tickles. She believed that Doe1 was also in the room. He touched her for about “a second.” He accidently touched her three times. There was also a time that he touched her buttocks for several seconds.
Doe2 missed defendant and did not want to see him get in trouble. Defendant had only touched Doe2 during the tickle games. Doe2 admitted she told a police officer that she had not told defendant to stop touching her private parts because she was scared.
C. PRETRIAL INTERVIEWS
Lorraine Demarco was a social worker employed by Child Protective Services (CPS). She was assigned to investigate possible physical abuse by defendant against Doe2 and Doe1. She spoke with both girls at their school on January 15, 2015. During the interview with Doe1, Demarco asked her a general question as to whether defendant had ever touched her inappropriately on her private parts. She disclosed that she had been sexually abused by defendant.
Doe1 described that defendant had called her into the bedroom. He had her lay down on the bed next to him and that he touched her “where she pees.” She said this occurred five times each month. She said nothing about the touching occurring during a tickle fight. After Doe1 disclosed this abuse, Demarco ended the interview and called the police.
Riverside Police Officer Nick Sahugan responded to the call from Demarco. He spoke with Doe2. Doe2 told him that the prior night, she had been in bed and defendant got into bed with her. He touched her over her clothing and her buttocks area. She also disclosed one other time she had been naked and ready to enter the shower. Defendant touched her on her vaginal and buttocks areas. She did state that defendant was tickling her. Doe2 did not disclose there was anyone else in the room when these incidents occurred. Doe2 reported she was afraid to tell defendant no or to stop even though she did not like what he was doing to her.
Officer Sahugan spoke with Doe1. Doe1 also reported defendant had touched her inappropriately. She told Officer Sahugan that she was afraid. Doe1 had left the room one time and gone to another room because defendant had gotten into bed with her and reached into her pajama pants to touch her vaginal and buttocks areas. Doe1 told Officer Sahugan that this occurred once each week for the prior two years. Doe1 never mentioned this occurred during a tickle fight.
Doe1 was interviewed on January 16, 2015, by a forensic interviewer. The videotaped interview of Doe1 was shown to the jury.
Doe1 stated she had just turned 10 years old. She was in fourth grade. Doe1 did not know why she was being interviewed. Doe1 told the interviewer that defendant touched her private part, where she goes “pee,” with his fingers. This occurred more than one time. He touched her under and over her pajamas. One time, he touched her while they were in her bedroom. Mother was in the other bedroom and Doe2 was in the living room. Defendant put his hand under her underwear and was rubbing her on her vaginal area. She thought it was “nasty” and did not like it. She told him to stop, Doe2 got up and left. Defendant also rubbed her thighs. This occurred when she was in fourth grade. She thought it occurred one more time.
The first touching occurred when she thought she was in third grade. They lived in an apartment and they were on a bed in the “kids” room. They were on the bed and he was on his side. He touched her private part with his hand and rubbed. It felt “weird.” He touched her over and under her underwear. Defendant said nothing to her and just stopped.
Another time when they lived in the apartment, Doe2, Mother and Doe1 were lying in bed in Mother’s room. Doe2 and Mother were sleeping. Defendant got in the bed. He reached over and rubbed her private part over her clothes. She kept pushing his hand away from her. She pulled the covers over her so he would stop touching her. She thought she was eight or nine years old when this occurred.
Doe1 had seen defendant touch Doe2 more than one time in their current home. Doe2 was naked and just got out of the shower. Defendant rubbed her butt. She had never seen him touch Doe2’s private part. Defendant acted “weird” and “mean” when he would drink alcohol. Doe2, Doe1 and defendant would get into tickle fights. Doe1 had told Doe2 the day before about the touching; she never told Mother.
D. CSAAS EVIDENCE
Dr. Jody Ward was a clinical and forensic psychologist and a CSAAS expert. Dr. Ward explained that CSAAS could not be used to diagnose whether sexual abuse occurred; it was only helpful to understand how a child reacts to sexual abuse, which may be very different than how an adult would react. There were five categories of CSAAS: secrecy; helplessness; entrapment and accommodation; delayed disclosure; and retraction or recantation.
Children, even if not threatened, oftentimes keep sexual abuse secret because they fear they will be blamed or not believed. The second category, helplessness, was common because of the inherent power differential between a parent or adult, and a child. Children are taught to obey adults. They are also reliant on adults for food, clothing and shelter. Children feel they cannot get out of a situation even though they are being sexually abused. The third category, entrapment and accommodation, refers to the knowledge of the abuser that the child will not report the abuse. The abuser will continue to sexually abuse the child. A child may deal with the abuse by pretending to be asleep or hiding.
Children tended to believe that the abuse would not happen again. A child would become confused because oftentimes the abuser was someone who they loved and from whom they received emotional support. A child may put up with the abuse because of the other positive aspects of the relationship.
The fourth category, delayed disclosure, involved children not reporting the abuse; in fact, two-thirds of all children do not report abuse. Moreover, when a child does disclose the abuse, it was usually in a tentative way. A child tended to report more sexual abuse over time once the child was comfortable with disclosing one event. A child would continue to report depending upon the reaction of the person to whom it was reported. A child also may delay disclosure because of fear of breaking up their family. The final category was recantation. Many children are pressured by family to recant their claims in order to restore the family. It was common for family members not to believe the abuse.
Dr. Ward had not reviewed any of the reports in the instant case. Dr. Ward acknowledged that CSAAS assumed that sexual abuse had occurred. Dr. Ward was making no claim that Doe1 and Doe2 had been sexually abused.
E. DEFENSE EVIDENCE
Mother, an elementary school teacher, had lived in a house in Riverside for the prior nine months with Doe1 and Doe2. Prior to living in the house, they lived in a condominium for approximately two years, and before that, in an apartment in Riverside. Doe1 was eight years old and Doe2 was seven years old when they lived in the apartment. Doe2 and Doe1 shared a room. Defendant moved in with them toward the end of their lease; she and defendant had been separated. Defendant took the girls’ room and the girls moved back and forth between the rooms. When they moved into the two-bedroom condominium, Mother took one bedroom and defendant the other. The girls mostly stayed with Mother in her room.
Doe1 and Doe2 adored defendant and never reported any concerns with being alone with defendant. Mother found out about the abuse from DeMarco. Around this time, Mother was trying to get defendant help for his alcoholism. Mother had no idea Doe1 and Doe2 were being sexually abused by defendant. She had observed defendant tickling the girls. Mother initially believed the allegations and had defendant leave the house. Mother spoke with Doe1 and Doe2 about six months after the initial disclosure. They told her defendant had not touched their private parts.
Mother took the girls to visit defendant in jail every weekend. When he was released on bail, she allowed him to move back into the home. Mother had observed defendant tickle the girls while they were naked. She had seen him pat them on the buttocks. Mother indicated that Doe1 and Doe2 both wanted defendant back in their lives.
DISCUSSION
A. INSUFFICIENT EVIDENCE OF A VIOLATION OF SECTION 288, SUBDVISION (A)
Defendant contends the evidence that he committed a lewd act against Doe2 was insufficient. Specifically, he claims that the People failed to prove he touched Doe2 for purposes of sexual gratification.
“When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
“ ‘[A]ny touching’ of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child” constitutes a violation of section 288, subdivision (a). (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez).) “[T]he circumstances of the touching remain highly relevant to a section 288 violation. The trier of fact must find a union of act and sexual intent . . . and such intent must be inferred from all the circumstances beyond a reasonable doubt.” (Ibid.)
“[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act. [Citation.] ‘[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . . If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute.’ ” (Martinez, supra, 11 Cal.4th at p. 444; see also People v. Lopez (2010) 185 Cal.App.4th 1220, 1232.)
“ ‘[T]he touching of an underage child is “lewd or lascivious” and “lewdly” performed depending entirely upon the sexual motivation and intent with which it is committed.’ [Citation.] And ‘the only way to determine whether a particular touching is permitted or prohibited is by reference to the actor’s intent as inferred from all the circumstances.’ [Citation.] Such circumstances to be considered by the fact finder, include ‘the relationship of the parties, the nature of the touching, and the presence or absence of any nonsexual purpose under section 288.’ ” (People v. Lopez, supra, 185 Cal.App.4th at pp. 1232-1233.) In addition, another relevant factor in determining intent is other acts of lewd conduct charged in the case. (Martinez, supra, 11 Cal.4th at p. 445.)
Here, substantial evidence supported that the touching in this case was not part of an innocent tickle game, but rather for the purpose of defendant’s sexual gratification. First, the location of the touching was relevant to whether it was done for sexual gratification. Doe2 told Officer Sahugan that the prior night, defendant had gotten into bed with her and touched her buttocks area. On another occasion, as she was about to get in the shower, and was naked, he touched both her buttocks and vaginal areas. Doe1 reported that she had observed defendant rub Doe2’s buttocks while Doe2 was naked. Although at trial Doe2 minimized the touching, she acknowledged he had touched her where she went “number one.” The jury could reasonably conclude that based on defendant touching her buttocks and vaginal areas, and not just her arm or leg, that such touching was done for his own sexual gratification.
Further, his acts against Doe1 support his lewd intent when he touched Doe2. Defendant was convicted of forcible lewd conduct against Doe1 and he does not contest those counts on appeal. Defendant rubbed Doe1’s vagina skin-to-skin for about 30 seconds on more than one occasion. He also rubbed her over her pajamas on her buttocks and vaginal areas. There is no doubt this was committed for his own sexual gratification. Since defendant committed these acts against Doe1, it is reasonably inferred that when he touched Doe2, he did so for purposes of sexual gratification. (Martinez, supra, 11 Cal.4th at p. 445.)
Defendant insists that the touching of Doe2’s buttocks and the incident involving the shower did not involve inappropriate touching. He only touched her momentarily during a tickle game. Further, Doe2 and defendant were not alone; Doe1 was present and it appeared Mother was nearby. Additionally, the inference that since defendant touched Doe1 with sexual intent, he touched Doe2 with sexual intent, is extraordinarily weak. However, based on the totality of the evidence before the jury, the jury could reasonably conclude that defendant’s touching of Doe2 was sexually motivated. The violation of section 288, subdivision (a) against Doe2 was supported by substantial evidence.
B. CSAAS EVIDENCE
Defendant contends the trial court committed reversible error by admitting the CSAAS evidence. Defendant insists that the evidence lacked probative value to explain why Doe1 delayed in reporting and recanted the allegations of abuse. Doe2 did not disclose the incidents of abuse because she did not view them as abuse and Doe1 was merely embarrassed to talk about the acts by defendant, which any lay person could easily understand without expert testimony. Any accommodation or helplessness was related to defendant’s behavior when he was drinking not because of the sexual abuse. Moreover, Doe2 and Doe1 were not tentative in their disclosure. Doe1 and Doe2 did not recant. Finally the evidence was more prejudicial than probative.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the People filed a motion in limine to be allowed to introduce CSAAS testimony. The People argued that the reactions by Doe1 and Doe2 met the “myth and misconceptions” of sexually abused children under categories of secrecy, helplessness, accommodation, delayed disclosure and recantation. Doe1 waited several years to report the abuse.
Defendant brought a motion in limine to exclude the evidence on the grounds it was irrelevant (Evid. Code, §§ 350, 351) and was prejudicial as it would confuse the issues and mislead the jury (Evid. Code, § 352). Defendant argued that CSAAS evidence was not appropriately introduced to prove the charged crime; it was only admissible to rehabilitate the credibility of the child victim. If the trial court admitted the evidence, defendant sought a limiting instruction that it could only be considered as to credibility and not to show the crime occurred.
The trial court addressed the matter at a pretrial hearing. The prosecutor clarified that the expert would only be asked general questions about CSAAS. The expert had not interviewed Doe1 and Doe2. The evidence was admissible as the prosecutor anticipated Doe1 would recant her testimony at trial. Further, Doe1 delayed disclosure of the sexual abuse for two years. Finally, the molestations occurred several times and the CSAAS testimony would explain why she did not stop it, e.g. accommodation. Defense counsel was asked if he wished to be heard, and responded, “No. I think with what I am hearing today and what I see in the back of his motion, I think the limiting instruction deals with that. And I get cross-examination, will deal with it there, too. That’s fine.”
The trial court then addressed the objection based on Evidence Code section 352. It first found that this type of testimony was not “unduly prejudicial.” It concluded, “As long as the expert is not testifying as to any veracity or credibility of the complaining witnesses or anything regarding whether—specifically whether those complaining witnesses are truthful or not. So the Court does not find that that testimony would be unduly prejudicial.”
Prior to Dr. Ward’s testimony, the trial court did not read a limiting instruction but advised the jury they would be instructed that the testimony would only be used in a limited way. The limiting instruction given prior to deliberations provided as follows: “You have heard from Jody Ward regarding [CSAAS]. Jody Ward’s testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [Doe1]’s and [Doe2]’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony.”
2. ANALYSIS
Our Supreme Court has recognized that CSAAS evidence is relevant, useful, and admissible in a given case. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1302; see also People v. Brown (2004) 33 Cal.4th 892, 905-906.) Expert testimony about CSAAS “is inadmissible to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abused children. However, . . . such evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse.” (People v. Stark (1989) 213 Cal.App.3d 107, 116.)
CSAAS evidence is admissible to rebut a defendant’s attack on a child’s credibility and to disabuse jurors of specific myths or misconceptions suggested by the evidence. (People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.) For example, when a child significantly delays reporting, or recants her story in whole or in part, expert testimony “may be used to aid the jury’s assessment of the victim’s behavior.” (People v. Housley (1992) 6 Cal.App.4th 947, 955.)
“Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.] [¶] Admission of evidence such as CSAAS is not error merely because it was introduced as part of the prosecution’s case-in-chief rather than in rebuttal. The testimony is pertinent and admissible if an issue has been raised as to the victim’s credibility.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
Here, the evidence was relevant because Doe1 delayed reporting the abuse by defendant. Moreover, when she testified, she minimized the abuse and continually stated that she loved defendant despite what he did to her. It was clear Mother was not supporting her and she had lost her father. The CSAAS evidence relating to accommodation and helplessness was relevant to show why Doe1 would still love defendant and it was reasonable to infer that she was aware her family was being broken up due to the allegations. As the Supreme Court has stated, “Most jurors, fortunately, have been spared the experience of being the parent of a sexually molested child. Lacking that experience, jurors can rely only on their intuition or on relevant evidence introduced at trial.” (McAlpin, supra, 53 Cal.3d at p. 1302.) The CSAAS evidence helped the jury understand why Doe1 and Doe2 would still love defendant and support him, despite the sexual abuse. It was relevant as to their credibility and as to why they would continue to allow defendant to sexually abuse them.
Further, the evidence was not more prejudicial than probative. Evidence Code section 352 provides “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review the court’s decision to admit expert testimony and its determination under Evidence Code section 352 for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
We conclude that the evidence was highly probative to explain why Doe1 and Doe2 still loved defendant and did not want to be separated from him. It was relevant to explain why Doe1 and Doe2 delayed disclosure and also why they minimized the abuse at trial. Any prejudicial impact was mitigated by the trial court giving the jury the limiting instruction. This limited the evidence to explain how sexually abused children in general react and not that defendant had molested Doe1 and Doe2 because they exhibited CSAAS traits. “We presume the jury understood and followed those instructions.” (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
Moreover, even if the trial court had excluded the CSAAS evidence, it is not reasonably probable an outcome more favorable to defendant would have occurred. (See People v. Nguyen (2010) 184 Cal.App.4th 1096, 1120; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant has claimed that the evidence was insufficient to support his conviction of committing a lewd act against Doe2, and even if this court disagrees, the evidence that defendant touched Doe2 with lewd and lascivious intent was “spare.” Further, the evidence that defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury on Doe1 was minimal. He insists the CSAAS testimony tipped the scales in favor of conviction because the jury would have believed that Doe1 underreported the conduct and tried to minimize what occurred. He insists the jury considered the testimony of the CSAAS expert as substantive evidence that the abuse occurred in the manner charged. Defendant’s argument completely ignores the limiting instruction given to the jury that advised them that “Jody Ward’s testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him.” Again, we presume the jury followed the instruction of the court. (People v. Williams, supra, 170 Cal.App.4th at p. 607.)
Here, the evidence that defendant committed lewd acts against Doe1 and Doe2 was strong. Doe1 repeatedly reported that defendant had rubbed her vaginal area with his finger skin-to-skin. He committed these acts at night and when no one was around. Doe1 tried to push his hand away and had pulled up the covers to get him to stop. We have outlined the strong evidence regarding Doe2, ante. Based on the evidence presented, the jury would have found defendant guilty of all four counts even if the CSAAS evidence was excluded. The CSAAS evidence was properly admitted and limited, and defendant suffered no prejudice due to its admission.
C. RESTRAINING ORDER
Defendant contends the trial court acted in excess of its jurisdiction by signing the CPO which included the provision he have no contact with Doe1 and Doe2 for 10 years. He insists that pursuant to section 1201.3, the trial court could only issue an order prohibiting defendant from harassing, intimidating or threatening Doe1 and Doe2. The People contend the order was appropriately signed pursuant to section 136.2. Defendant responds it is not clear upon which section the trial court imposed its order; remand for clarification is required.
1. ADDITIONAL FACTUAL BACKGROUND
At the time of sentencing, the prosecutor asked the trial court to consider the probation report lines 27 through 30 on page 21 for the issuance of a protective order. The probation report stated, “Defendant prohibited from visitation with the child victim(s) . . . . Division of Adult Institutions notified. [1202.05 PC].” The trial court responded that the People would have to prepare the order.
The People prepared the CPO. The trial court noted, “And I have here a criminal protective order post-sentence that will go into effect immediately and will—it says order expires April 21st, 2018?” The People responded, “Your Honor, that’s when [Doe2] turns 18. I can’t put it into effect or enforce it as she’s an adult. It’s my understanding that I can put it into place until she’s 18.” The trial court responded, “Well, it can be enforced past ten years from today’s date.” The People submitted on the trial court’s discretion.
The trial court ordered defendant to register as a sex offender pursuant to section 290. The trial court also ordered, “And then I will order that the defendant is prohibited from visitation of both minor children until further order of this court.” The trial court further ruled on the CPO as follows: “So, let’s see. So, it will be August 26th, 2026, ten years from today’s date. This order will be in effect starting immediately and will expire August 26th 2026 unless modified earlier. And I spoke to Counsel on sidebar, and this order can only be modified by a court order. [¶] If there is a change in circumstances and [a] licensed professional such as [a] psychiatrist or therapist determine that it is [in] the children’s best interest to have some contact in some way, the Court will certainly consider a modification at that time, but only with that type of recommendation. But at this time, the order will be no contact with both [Doe1] and [Doe2].” Defendant was ordered to have no communication of any kind with Doe1 and Doe2. The trial court signed the CPO, which has not been included in the record.
The abstract of judgment had a box checked that the defendant was prohibited from visitation with the child victim with the date of birth 4/21/2006 citing to section 1202.05. The minute order from sentencing provides that defendant is prohibited from visitation with the child victim with the date of birth of “4/21/2006” pursuant to section 1202.05. In addition, it provided “Criminal Protective Order—other than Domestic Violence—CPO 136.2 PC issued. Expires 08/26/2026. Comment: No Contact.”
2. ANALYSIS
“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “[T]he defendant further bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) The copy of the CPO has not been provided to this court. Most criminal protective orders are prepared on a preprinted form and the trial court can check the box next to the relevant code section. (See People v. Ponce (2009) 173 Cal.App.4th 378, 381 [protective order issued on Judicial Council form CR 160].) The CPO could provide that the trial court issued the order pursuant to section 136.2, especially in light of the minute order from sentencing. Since defendant has failed to provide the CPO, we resolve any ambiguity in the record against him.
Section 1201.3, subdivision (a) provides in pertinent part, “Upon the conviction of a defendant for a sexual offense involving a minor victim . . . , the court is authorized to issue orders that would prohibit the defendant . . . , for a period up to 10 years, from harassing, intimidating, or threatening the victim or the victim’s family members or spouse.” Section 1202.05 provides that when a person is sentenced to a conviction of section 288, and the victim is under the age of 18 years, “the court shall prohibit all visitation between the defendant and the child victim.”
Section 136.2, subdivision (i)(1), effective January 1, 2012, provides, “In all cases in which a criminal defendant has been convicted of . . . 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 subject to mandatory supervision, 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 a victim and his or her immediate family.”
The record before this court supports that the trial court issued the CPO pursuant to section 136.2, subdivision (i)(1). The trial court issued a “no contact” order for 10 years. This could only be authorized under section 136.2, subdivision (i)(I). In addition, the trial court stated there would be no visitation between defendant, Doe1 and Doe2. This was consistent with section 1202.05. However, the CPO was a separate stay-away order prohibiting all contact, whether in person or by phone. The record supports these were two separate orders.
Defendant refers to section 1201.3 but that section was never mentioned in the trial court. The evidence before this court supports that the CPO was issued pursuant to section 136.2, subdivision (i)(1) to stay away from the two victims Doe1 and Doe2. Such order was properly imposed.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.

We concur:

RAMIREZ
P. J.

McKINSTER
J.