Filed 2/6/24 P. v. Bradberry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD DAVID BRADBERRY,

Defendant and Appellant.

F084562

(Super. Ct. No. F19904859)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. 

Conklin, Judge.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Defendant Richard David Bradberry was convicted of eight sex offenses based on 

his molestation of four boys. Defendant contends: (1) there is insufficient evidence to 

support a finding that the victim was 14 or 15 years old at the time he committed a lewd 

act upon a child age 14 or 15 (count 8) and the trial court erred in denying defendant’s 

motion for dismissal of that count; (2) the trial court’s failure to pronounce the sentence 

on count 4, which the parties agree should have been stayed pursuant to Penal Code 

section 654,1 and striking of the sentence on that count constitutes an unauthorized 

sentence; and (3) the minute order must be corrected to state defendant is to have “no 

visitation” with the victims, instead of “no contact” with the victims.

The People respond that the victim’s statements to law enforcement and evidence 

at the time of his disclosures provided sufficient evidence that the victim was 14 or 15 at 

the time the offense in count 8 was committed. The People also respond that the minute 

order and abstract of judgment correctly state the sentence on count 4 was stayed not 

stricken and remand on this count would serve no purpose. Lastly, the People concede 

the minute order may be amended to reflect that defendant is to have no visitation rather 

than no contact with the victims. 

Because the trial court failed to pronounce sentence on count 4 and the abstract of 

judgment does not include the term on that count, we will remand for the court to 

pronounce sentence on count 4 and issue an amended abstract of judgment. On remand, 

the court must also determine which victims are subject to the no-visitation order and 

modify the minute order and abstract of judgment pursuant to its determination. In all 

other respects, we affirm.

PROCEDURAL SUMMARY

On March 21, 2022, the Fresno County District Attorney filed an amended 

information charging defendant with: two counts of committing a lewd act upon a child 

1 All further statutory references are to the Penal Code.
3.

under 14 years old (§ 288, subd. (a); counts 1–2); oral copulation on a child under 16 

years old (§ 287, subd. (b)(2); count 3); oral copulation or sexual penetration with a child 

10 years of age or younger (§ 288.7, subd. (b); count 5); and four counts of committing a 

lewd act upon a child 14 or 15 years old by a person at least 10 years older (§ 288, 

subd. (c)(1); counts 4, 6–8). The information alleged that the victim was under 14 years 

of age and there was more than one victim on counts 1 and 2 (§ 667.61, subd. (j)(2)). 

The information further alleged the following aggravating circumstances on all counts: 

the victims were particularly vulnerable (Cal. Rules of Court,2rule 4.421(a)(3)), 

defendant induced a minor to commit or assist in the crime (rule 4.421(a)(5)), defendant 

took advantage of a position of trust (rule 4.421(a)(11)), and defendant has engaged in 

violent conduct (rule 4.421(b)(1)).3

On May 31, 2022, the jury found defendant guilty on all counts and found true the 

enhancement alleged on counts 1 and 2. In a bifurcated bench trial, the court found true 

the aggravating circumstances under rule 4.421(a)(3), (5), and (11), but found not true the 

allegation that defendant engaged in violent conduct under rule 4.421(b)(1). 

On June 28, 2022, the trial court sentenced defendant to four years determinate 

followed by 65 years to life. Defendant’s determinate term was imposed as follows: two

years for count 3 and eight months each for counts 6, 7, and 8, to be served 

consecutively. Defendant’s indeterminate term was imposed as follows: count 1, 25 

years to life; count 2, 25 years to life consecutive to the term on count 1; and an 

“independent consecutive term” of 15 years to life on count 5. The court did not 

pronounce the term on count 4 and stated the sentence on count 4 was “stricken” pursuant 

2 All further rule references are to the California Rules of Court.

3 Defendant waived his right to a jury trial on the aggravating circumstances and 

requested a bench trial instead. 
4.

to section 654. The court ordered defendant to have “no visitation” with any of the 

victims. 

Defendant filed a timely notice of appeal. 

FACTUAL SUMMARY

I. Prosecution Evidence

A. Molestation of N. (Counts 6 Through 8)

N., born in December 2000, met defendant in 2014 when N. was 14 years old.4 

He and defendant lived in the same apartment complex in Clovis. N. moved into the 

apartment with his mother, K., and his maternal grandmother in August 2014. N. and 

defendant would say “hi” to each other when N. went to the store near the apartment 

complex or to the mailbox. They began talking when defendant initiated a conversation 

with N. at one point. 

Defendant and N. became friends in early 2015 about four or five months after 

they started talking. N. would talk to defendant about music, hunting and fishing at N.’s 

apartment or in front of or on defendant’s porch. Defendant sometimes took N. to school 

or picked him up from school in defendant’s truck. Defendant also took N. to stores and 

fishing. Defendant taught N. how to drive in his truck. 

In about mid-2015, N. started playing video games at defendant’s apartment. One 

of the games N. would play depicted a strip club that showed topless women. 

K. met defendant when N. was around 14 years old, “roughly around a year” after 

the family moved into the apartment complex, but before August 2015. N. and defendant 

were already friends before K. met defendant. K. gave N. permission to go on fishing 

trips with defendant. 

4 Defendant was born on April 10, 1964. 
5.

1. The First Incident

With K.’s permission, defendant took N. on a trip to Santa Cruz in the summer of 

2015. They stayed for one night in a hotel just off the beach. Defendant and N. shared 

one hotel room and slept in separate beds. That night, defendant stripped down to his 

underwear to go to bed and told N. he did so to stay cool. 

The next day, defendant drove them back to Clovis in his truck. Defendant was 

wearing shorts and about 20 minutes into the ride, defendant scratched his groin area and 

exposed his penis. Defendant left his penis exposed for the rest of the three- to four-hour 

ride back to the apartment complex. N. saw defendant’s penis three or four times during 

the ride but did not say anything because he was afraid of defendant. This incident was 

not charged.

After that, N. saw defendant’s penis several times in defendant’s apartment or his 

own apartment. Defendant’s penis was erect most of the time N. saw it. 

2. The Second Incident

About six to eight months after the Santa Cruz trip, N. was sleeping in pajamas on 

the couch in his apartment. N. heard his grandmother leave for work and then fell back 

asleep. N. woke up and defendant was in his house cleaning up. N. woke up again and 

felt a hand creeping up his leg. N. kicked the hand away but woke up to the same motion 

again three more times. The first two times the hand was over N.’s clothes moving up to 

his inner thigh. The third time, N. felt the hand start at his ankle, go up his pant leg and 

started to touch his inner thigh. N. kicked when defendant’s hand reached his inner thigh 

and defendant immediately pulled his hand away. N. asked defendant about it later and 

defendant told N. he was looking for the remote control under N., but N. knew the remote 

was not on the couch. Count 7 was charged for this incident. 

3. The Third Incident

In the summer of 2016, defendant and N. were talking in defendant’s apartment. 

N. and defendant had been working out together occasionally. N. pointed out how much 
6.

muscle gain he was building. Defendant told N. he was looking good, and defendant 

wanted to see his progress. N. showed his arms to defendant and defendant felt N.’s

arms. Defendant told N. he wished he had N.’s stomach and wanted to see N.’s stomach. 

N. started to reveal his abdominal area when defendant pushed N. up against the wall, 

lifted N.’s shirt and started to feel N.’s stomach up to his chest. Defendant felt N.’s 

stomach for about 30 seconds. Defendant told N. his stomach was nice, and defendant 

wished he had a stomach like N. Count 6 was charged for this incident. 

4. The Fourth Incident

A couple weeks after the stomach incident, defendant and N. were walking from 

defendant’s apartment to defendant’s truck when defendant grabbed and squeezed N.’s

buttocks and called him “dear.” N. jolted his hips forward when defendant touched his 

buttocks. After the two got into the truck, defendant tried to grab N.’s thigh. This 

incident was not charged.

5. The Fifth Incident

Sometime after the Santa Cruz trip, N. was sleeping on the couch in his apartment 

while his grandmother was in the bathroom putting on makeup. Defendant moved his 

hand up N.’s leg toward the thigh while looking over his shoulder every 10 to 15 seconds. 

Defendant had his hand over N.’s clothes for the first couple touches, but the third time 

defendant tried to put his hand under N.’s pant leg. N. quickly kicked defendant off 

because he “was aware of what was going on at this point.” N.’s grandmother came into 

the living room and N. fell back asleep. After N.’s grandmother left for work, defendant 

continued to try to touch N. and N. kept waking up and kicking him off. N. then woke up 

to defendant’s hand touching his penis and testicles with skin-to-skin contact. This 

“really woke up” N. who kicked and defendant quickly pulled his hand away. Defendant 

acted like he was cleaning and everything was normal. N. did not confront defendant. 

Count 8 was charged for this incident. 
7.

6. N.’s Disclosures

N. later told his grandmother about some of the incidents with defendant before 

she moved out of their apartment. N.’s grandmother kept it confidential because at first 

N. did not want to tell the rest of the family. N.’s grandmother became very watchful of 

defendant and would make him sit in separate parts of the apartment. N. told K. a couple 

weeks after telling his grandmother. K. told the rest of the family. After N. told K., she 

only wanted N. around defendant under her supervision. K. told N. not to answer the 

door or hang out with defendant. 

B. Molestation of I., A., and R. (Counts 1 Through 5)5

I., born in April 2008, was friends with N. and A., born in June 2005. I. and R.,

born in May 2008, lived in the same group home. A. lived with his mother near the 

apartment complex where N. and defendant lived. 

I. and A. would play video games at defendant’s apartment. A video game they 

played depicted a strip club that showed women wearing only a bra and underwear or 

naked. Defendant would laugh and ask I. and A. “do you guys want to get all touchy” 

when they went to the strip club in the video game. 

One time, I. and R. were watching A. play a video game at defendant’s apartment. 

A. took his character to the strip club in the game and made his character throw money at 

the women. This made the characters dance “all crazy.” Defendant asked the boys if 

they “want to do what the characters are doing.” The boys declined. About 20 minutes 

later, defendant said to the boys “let’s get touchy.” A. pulled his pants down and 

defendant rubbed A.’s penis with his hands for about a minute. 

A couple months after that incident, I. and A. were at defendant’s apartment again. 

Defendant tried to take off A.’s and I.’s pants, but the boys did not let him. 

5 We provide limited facts regarding the counts for these victims because they are 

not relevant to the issues defendant raised on appeal.
8.

A month later, I. and A. were at defendant’s apartment again. Defendant 

simultaneously rubbed A.’s penis and I.’s penis over the boys’ clothing for a minute or 

two. This incident was charged as count 2. 

A few weeks later, defendant invited I. and A. to his apartment when the boys 

were walking by. I. and A. went inside defendant’s apartment. After the boys drank 

some water in defendant’s kitchen, they went to the couch in the living room. Defendant 

took A.’s pants off and rubbed A.’s penis. Defendant put his mouth on A.’s penis. 

Defendant also touched I.’s penis above I.’s clothes. Defendant put his mouth on I.’s 

penis for about a minute. Defendant took off his own clothes. Defendant asked A. if he 

wanted to touch defendant’s penis and A. said “sure.” A. put his hands on defendant’s 

penis. I. left defendant’s apartment because he was uncomfortable. This incident was 

charged as counts 3 and 4 for A., and as count 5 for I. 

R. recalled going to defendant’s apartment three times. When R. was 10 or 11 

years old, he and I. ran away from the group home and went to defendant’s apartment. R. 

smoked cigarettes at defendant’s apartment but nothing else happened the first time R. 

went there. 

A few days to a week after the first visit, R. went to defendant’s apartment with I.

again. A. was at the apartment when R. and I. arrived. The three boys watched a 

pornographic video defendant played on his laptop. A. and defendant were masturbating 

to the video using a vibrator. R. saw defendant sucking on A.’s penis for about a minute 

after A. used the vibrator. 

R. went from the group home to defendant’s apartment alone the third time on 

July 8, 2019. R. was on defendant’s couch looking at defendant’s knives. R. told 

defendant that he had a rash on his “butt” that was itchy. Defendant went to the 

bathroom and brought back an ointment. R. told defendant he did not want defendant to 

put the ointment on him, but defendant put ointment on R.’s buttocks and under his penis. 

Defendant touched R.’s penis with his hand. Count 1 was charged for this event. 
9.

C. Law Enforcement Investigation

On July 8, 2019, R. disclosed defendant’s conduct to the group home where he 

and I. lived. The group home contacted the Clovis Police Department to report 

defendant. Clovis Police detectives E. Roehlk and M. Maciel went to the group home 

that day to speak with R. and I. about what had occurred at defendant’s apartment. 

A nurse examined R. on July 8, 2019. R. had redness on his inner thighs and 

scrotum. The nurse obtained a buccal swab and swabs from R.’s anus, scrotum, and 

penis. Department of Justice senior criminalist J. Hale testified that defendant’s DNA 

was detected on R.’s swabs. 

On July 10, 2019, the Clovis Police Department searched defendant’s apartment 

pursuant to a search warrant and seized defendant’s laptop and a back massager. The 

unallocated space (deleted images) of defendant’s laptop contained 58 images of 

“straight” pornography, 238 images of gay pornography and 174 images of teen/preteen 

boys. 

Defendant was arrested and the police publicized the arrest. N. called the police in 

response to the news broadcast about the arrest. Clovis Police detective K. Herrick

interviewed N. on July 18, 2019, in N.’s apartment. N. told Herrick about the incidents 

with defendant and said he was 15 years old when all these incidents occurred. 

II. Defense Evidence

Defendant denied ever showing pornography on his laptop to any of the boys. 

Defendant also denied ever touching N.’s groin area or stomach. He denied showing his 

penis to N. Defendant said the object referred to as a vibrator is a back massager that 

defendant used for neuropathy in his feet. He let I., A., and R. use the massager but 

denied telling the boys to use the massager on their genitals. Defendant also denied ever 

seeing I., A. or R. masturbating in his apartment. Defendant denied ever putting his 

mouth on A.’s penis. Defendant applied baby powder and anti-itch cream to R.’s inner 

thigh. Defendant put the cream on R.’s thigh and then R. rubbed it around. 
10.

N. was recalled to further testify for the defense. N. said he is better at 

remembering how old he was when events happened than the event’s year. After having 

his recollection refreshed with his preliminary hearing testimony, N. testified he was 16 

when the wall incident occurred. N. also testified that he was 16 at the time of the two 

incidents on the couch in his apartment. Regarding the couch incident when N.’s 

grandmother was not in the apartment, N. said he was “15, 16” and was “still struggling 

with that one.” N. confirmed on cross-examination that he told Herrick he was 15 years 

old when all the incidents occurred. N. agreed he said the Santa Cruz incident was in 

summer 2016 during his preliminary hearing testimony. N. recalled testifying that the 

incident when his grandmother was in the bathroom was “a few months after Santa 

Cruz.” (Boldface omitted.) 

Dr. Ruth Ballard testified as an expert in DNA analysis for the defense. Ballard 

discussed the difference between direct and indirect transfers of DNA. Direct transfer 

occurs when a person touches an object and leaves their DNA on that object. Indirect 

transfer “is everything else,” and can occur when a person picks up another’s DNA from 

touching an object previously touched by the other person. Ballard reviewed Hale’s 

report and testimony, and largely agreed with Hale’s results and testimony. Ballard 

testified that defendant’s DNA from R.’s swabs could have been transferred either 

directly or indirectly, and she could not definitively say whether it was direct or indirect. 

DISCUSSION

I. Sufficiency of the Evidence

Defendant contends the evidence at the close of the prosecution’s case-in-chief 

was insufficient on the fifth incident with N. (count 8) and the trial court erred in denying 

defendant’s motion for dismissal after the prosecution rested. Defendant further argues 

there is insufficient evidence to support the conviction on this count at the close of all the 

evidence. Defendant claims the evidence shows N. was 16 at the time of the fifth 

incident, not 14 or 15 years old as required to violate section 288, subdivision (c)(1). 
11.

A. Section 1118.1 Motion for Acquittal

After the prosecution rested, defendant made a section 1118.16 motion to dismiss 

the counts related to N. Defendant argued that in some of N.’s testimony he said he was 

16 at the time of the alleged events. The trial court denied defendant’s motion. The court 

recognized there were “different statements” about N.’s age at the time of the alleged 

events, but also acknowledged there were statements from the preliminary hearing and 

Herrick’s interview from which the jury could conclude that N. was under 16 years old at 

the time of the offenses. The court concluded the issue of N.’s age was a credibility 

determination for the jury to make.7 

B. Applicable Law and Analysis

In assessing a sufficiency of the evidence claim, we “review the whole record in 

the light most favorable to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘We presume in 

support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence. [Citation.] [¶] The same standard of review applies to cases in which 

6 Section 1118.1 provides that in a jury trial, the “court on motion of the defendant 

or on its own motion, at the close of the evidence on either side and before the case is 

submitted to the jury for decision, shall order the entry of a judgment of acquittal of one 

or more of the offenses charged in the accusatory pleading if the evidence then before the 

court is insufficient to sustain a conviction of such offense or offenses on appeal.”

7 After both sides rested, defendant made another section 1118.1 motion. 

Defendant argued that based on the way N. testified during the defense’s case, “there’s no 

way that this case has been proven beyond a reasonable doubt as to his age.” The trial 

court again denied the motion and concluded the issue was a credibility determination to 

be made by the jury. The court recognized that if the jury believes N.’s prior statements, 

he was 15, but if the jury believes N.’s testimony he was “16 to a degree.” The court 

acknowledged “there are varying interpretations of the evidence,” but concluded there 

was credible evidence from which the jury could find the necessary elements beyond a 

reasonable doubt. 
12.

the prosecution relies primarily on circumstantial evidence . . . . “[I]f the circumstances 

reasonably justify the jury’s findings, the judgment may not be reversed simply because 

the circumstances might also reasonably be reconciled with a contrary finding.” 

[Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ” (People 

v. Houston (2012) 54 Cal.4th 1186, 1215.) Thus, the reviewing “court must accord due 

deference to the trier of fact and not substitute its evaluation of a witness’s credibility for 

that of the fact-finder.” (People v. Barnes (1986) 42 Cal.3d 284, 303–304.) A reversal 

for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis 

whatever is there sufficient substantial evidence to support’ ” the jury’s verdict. (People 

v. Bolin (1998) 18 Cal.4th 297, 331.)

“The test applied by the trial court in ruling on a motion for acquittal is the same 

test applied by the appellate court in reviewing a conviction for sufficiency of the 

evidence, namely, to determine whether from the evidence then in the record, including 

reasonable inferences to be drawn therefrom, there is substantial evidence of the 

existence of every element of the offense charged.” (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 89; accord, People v. Stevens (2007) 41 Cal.4th 182, 200.) The 

question in deciding a defendant’s section 1118.1 motion is therefore the same as for a 

sufficiency of the evidence challenge: “whether there is ‘ “ ‘substantial evidence of the 

existence of each element of the offense charged’ ” ’ such that any rational jury may have 

convicted defendant.” (People v. Veamatahau (2020) 9 Cal.5th 16, 36.) “In ruling on [a 

section] 1118.1 motion for judgment of acquittal, the court evaluates the evidence in the 

light most favorable to the prosecution. If there is any substantial evidence, including all 

inferences reasonably drawn from the evidence, to support the elements of the offense, 

the court must deny the [section 1118.1] motion.” (Porter v. Superior Court (2009) 47 

Cal.4th 125, 132.) Review of a trial court’s denial of a motion for acquittal is based on 

the evidence at the time the motion was made and is de novo. (People v. Cole (2004) 33 

Cal.4th 1158, 1213.)
13.

For the sole count at issue, count 8, defendant was charged with violating section 

288, subdivision (c)(1) “[o]n or about June 1, 2016 through November 30, 2016” when 

N. was “14 or 15 years old.” This charge related to the fifth incident when defendant 

touched N.’s leg, inner thigh, and genitalia in N.’s apartment while N.’s grandmother was 

in the other room. To prove this charge, the prosecution was required to show the 

following elements: (1) defendant willfully and lewdly committed any lewd or lascivious 

act upon or with the body of the victim; (2) the victim was 14 or 15 years old; 

(3) defendant was at least 10 years older than the victim; and (4) defendant committed the 

act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual 

desires of defendant or the victim. (§ 288, subds. (a), (c)(1).)8 Because N. was born in 

December 2000, the prosecution was required to show this incident occurred before N.

turned 16 in December 2016.

Defendant only contests whether N. was 14 or 15 years old at the time of the fifth 

incident. We reject defendant’s contentions because, at the close of the prosecution’s 

case-in-chief, there was sufficient evidence from which a reasonable trier of fact could 

find N. was still 15 at the time of the fifth incident.

Herrick testified that during N.’s interview, N. said he was 15 when all the 

incidents with defendant occurred. While N. testified at trial that he was 16 when the 

fifth incident occurred, N. also confirmed that the Santa Cruz incident took place in the

summer of 2015 and the fifth incident “happened summer a year later,” at which time N.

would have still been 15. N. conceded he has “memory problems” and it is “hard for 

8 The jury was correctly instructed on these elements pursuant to CALCRIM 

No. 1112: “To prove that the defendant is guilty of this crime, the People must prove 

that: [¶] 1. The defendant willfully touched any part of a child’s body either on the bare 

skin or through the clothing; [¶] 2. The defendant committed the act with the intent of 

arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself) or 

the child; [¶] 3. The child was 14 or 15 years old at the time of the act; [¶] AND [¶]

4. When the defendant acted, the child was at least 10 years younger than the defendant.” 
14.

[him] to remember certain things.” N. also admitted it is confusing for him to remember 

years and dates. A rational juror could have inferred that N.’s prior statements about his 

age at the time of the fifth incident were more reliable than his later trial testimony due in 

part to N.’s self-professed memory problems.

N. disclosed some of the incidents with defendant to his grandmother, including 

the fifth incident, before she moved out. N. initially testified that his grandmother moved 

out around 2016 or 2017. He also said he was 15 or 16 when his grandmother moved 

out. N. later testified that he “believed” his grandmother moved out before he turned 16 

in December 2016. K. testified that her mother moved out in January or February of 

2017 but admitted she is “terrible with dates.” A rational juror could have inferred that 

N.’s grandmother moved out prior to or shortly after N. turned 16 and thus, the fifth 

incident occurred when N. was still 15 based on the evidence this incident happened in 

the summer and N.’s disclosure of the incident to his grandmother before she moved out.

Defendant argues the evidence during the prosecution’s case-in-chief shows the

Santa Cruz trip occurred in the summer of 2016 when N. was 15 and thus, the fifth 

incident must have occurred after N. was 16 because N. testified it “happened summer a 

year later.” Specifically, defendant contends that “since the record shows that [K.] first 

met [defendant] in August 2015” and the Santa Cruz trip occurred with K.’s permission, 

the record demonstrates “the Santa Cruz trip occurred in May or June of 2016—

approximately six months before [N.]’s 16th birthday.” Contrary to defendant’s 

assertions, the evidence does not show that K. first met defendant in August 2015:

“[PROSECUTOR:] Okay. And so in August of 2014 you moved 

into [the apartment complex], correct?

“[K.:] Yes.

“[PROSECUTOR:] And then how long after that did you meet 

[defendant]?

“[K.:] It was roughly around a year.
15.

“[PROSECUTOR:] So would you say that it was before August of 

2015 that you met him?

“[K.:] Yes.” (Boldface omitted.) 

Defendant’s argument the trip must have occurred in the summer of 2016 is consequently 

unsupported by the record. Furthermore, to the extent defendant relies on inferences that 

could be drawn in his favor, that is inconsistent with the trial court’s role in deciding a

section 1118.1 motion. (Porter v. Superior Court, supra, 47 Cal.4th at p. 132.)

Viewing the evidence in the light most favorable to the prosecution, the trial court 

correctly concluded determination of N.’s age was a credibility determination to be made 

by the jury and there was sufficient evidence from which a reasonable trier of fact could 

find N. was under 16 at the time of the offenses. Therefore, the trial court properly

denied defendant’s section 1118.1 motion.

We similarly reject defendant’s related argument that the verdict on count 8 is not 

supported by substantial evidence following the close of all evidence. During the 

defense’s case, N. testified that he was 16 at the time of the fifth incident, but N. also

confirmed he previously said the fifth incident was only a few months after the Santa 

Cruz trip during his preliminary hearing testimony. During the prosecutor’s crossexamination, N. again confirmed he told Herrick he was 15 at the time of this incident. 

The jury thus heard inconsistent statements throughout the trial regarding N.’s age

at the time of relevant events. The jury “has wide latitude to believe or disbelieve 

witnesses, or even specific portions of their testimony” and may “ ‘ “combine the 

accepted portions with bits of testimony or inferences from the testimony of other 

witnesses thus weaving a cloth of truth out of selected available material.” ’ ” (In re 

Lopez (2023) 14 Cal.5th 562, 591.) It is the jury’s exclusive province as the trier of fact 

to resolve conflicts and inconsistencies in the testimony. (People v. Young (2005) 34 

Cal.4th 1149, 1181.) By its verdict the jury necessarily found beyond a reasonable doubt 

that N. was under 16 at the time of all offenses related to him. (See, e.g., People v. 
16.

Crabtree (2009) 169 Cal.App.4th 1293, 1323–1324 [the jury as the trier of fact was 

entitled to resolve the victim’s conflicting testimony regarding whether she was 16 at the 

time of the defendant’s sexual abuse].) Simply because the evidence was conflicting

does not mean it was insufficient to support that finding. (People v. Jennings (2010) 50 

Cal.4th 616, 639 [“reversal of the judgment is not warranted simply because the 

circumstances might also reasonably be reconciled with a contrary finding”].)

Defendant argues N.’s “brief comment” during his trial testimony for the 

prosecution that the Santa Cruz trip occurred in 2015 is not substantial evidence because 

it is belied by N.’s testimony and prior statements the trip occurred when he was 15, i.e., 

in the summer of 2016. Because the fifth incident reportedly “happened summer a year 

later” following the Santa Cruz trip, defendant claims the fifth incident must have 

occurred when N. was 16. As previously discussed, it is the jury’s exclusive province “to 

determine the credibility of a witness and the truth or falsity of the facts on which that 

determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 314.) We therefore “do 

not question the credibility of a witness’s testimony, so long as it is ‘not inherently 

improbable.’ ” (People v. Navarro (2021) 12 Cal.5th 285, 302.)

Defendant essentially argues N.’s testimony the Santa Cruz trip occurred in 2015 

is inherently improbable because K.’s timeline of events related to defendant 

“demonstrates that Santa Cruz trip occurred during the summer of 2016 when [N.] was

15.” “The inherently improbable standard addresses the basic content of the testimony 

itself—i.e., could that have happened?—rather than the apparent credibility of the person 

testifying. Hence, the requirement that the improbability must be ‘inherent,’ and the 

falsity apparent ‘without resorting to inferences or deductions.’ [Citation.] In other 

words, the challenged evidence must be improbable ‘ “on its face” ’ [citation], and thus 

we do not compare it to other evidence (except, perhaps, certain universally accepted and 

judicially noticeable facts).” (People v. Ennis (2010) 190 Cal.App.4th 721, 729.) N.’s 

testimony the Santa Cruz trip was in 2015 is not “ ‘ “ ‘unbelievable per se,’ ” physically 
17.

impossible or “ ‘wholly unacceptable to reasonable minds.’ ” ’ ” (Ibid.) Defendant’s 

challenge to N.’s testimony “is based entirely on comparisons, contradictions and 

inferences, [and] amounts to nothing more than an attack on witness credibility, [which] 

cannot be the basis for a reversal of the judgment on appeal.” (Id. at p. 725.) Although 

N. gave conflicting statements about his age when certain events occurred, his testimony 

about the Santa Cruz trip was not inherently improbable such that we may reject it. 

Defendant’s arguments are no more than an invitation to reweigh the evidence and 

substitute our view of the record for the jury’s view. This we cannot do. (People v. 

Brown (2014) 59 Cal.4th 86, 106.)

II. Sentencing Error

Defendant contends the trial court failed to impose sentence on count 4 and then 

improperly struck the sentence on that count resulting in an unauthorized sentence. 

Defendant argues the court was required to impose sentence on count 4 but stay its 

execution pursuant to section 654. The People agree that sentences subject to section 654 

are stayed, not stricken, but argue remand would serve no purpose because the minute 

order and abstract of judgment correctly state the sentence on count 4 was stayed. 

The probation officer’s report recommended a consecutive sentence of eight

months (one-third of the middle term) on count 4. At sentencing, the trial court discussed 

this count with the parties in relevant part:

“[THE COURT:] Additionally, Count 4, the PC 288(c)(1) alleging 

the victim of [A.] is 654. [¶] I believe all parties agree to that as well?

“[PROSECUTOR]: Yes, Your Honor.

“THE COURT: Probation did not. Probation had it running 

consecutive, but I believe it’s 654.

“[PROSECUTOR]: That’s the People’s position and we did argue 

as such in the closing argument. [¶] . . . [¶]
18.

“[DEFENSE COUNSEL:] My understanding as to the determinate 

counts is in light of the fact that Count 3 and Count 4 are 654, that the 

maximum is five years.

“THE COURT: I’m sorry. You said Count 3 and Count 4. Did you 

mean just Count 4 at 654?

“[DEFENSE COUNSEL]: Correct. Sorry. Count 4 is 654 of 

Count 3.” 

Subsequently, when pronouncing sentence, the court stated: “Count 4 pursuant to 654 

that sentence is stricken.” The court did not otherwise specify the term on count 4. The 

minute order states the sentence on count 4 as “8 Months. 1/3rd the Middle Term” and 

further states, “Sentencing Stayed Pursuant to PC 654.” (Boldface omitted.) The abstract 

of judgment indicates count 4 was stayed pursuant to section 654 but does not state the 

term for this count. 

“Section 654 precludes multiple punishments for a single act or indivisible course 

of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294; see § 654.) “[R]ather than 

dismissing charges or imposing concurrent sentences, when a court determines that a 

conviction falls within the meaning of section 654, it is necessary to impose sentence but 

to stay the execution of the duplicative sentence.” (People v. Duff (2010) 50 Cal.4th 787, 

796; see People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) “[A] court acts in excess 

of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of 

a sentence under section 654.” (Hester, supra, at p. 295; see People v. Scott (1994) 9 

Cal.4th 331, 354, fn. 17.) Defendant’s challenge to the sentence on count 4 is thus 

cognizable on appeal despite the lack of objection at sentencing because the trial court’s 

failure to correctly apply section 654 resulted in an unauthorized sentence. (Hester, 

supra, at p. 295.)

Because the trial court determined section 654 applied to count 4, the court was 

obligated to impose sentence but stay execution of the sentence on that count. While the 

abstract of judgment and minute order both reflect the sentence on count 4 was stayed,
19.

the court orally pronounced the sentence was “stricken.” The record suggests the court 

intended to stay the sentence on count 4 and the court simply erroneously stated the 

sentence was stricken. However, the court did not actually pronounce the term to be

imposed on this count. Additionally, while the minute order gives a term of eight months 

on count 4, the sentence recommended by probation, neither party notes the abstract of 

judgment only shows this count was stayed but does not state the term on this count.

“In a criminal case, judgment is rendered when the trial court orally pronounces 

sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) “After conviction of a 

felony and where probation is denied, the court must pronounce judgment upon the 

defendant by imposing a fine or a sentence of imprisonment. [Citations.] Judgment must 

be pronounced orally in the presence of the defendant, and it must reflect the court’s 

determination of the matter before it. [Citation.] The pronouncement of judgment is a 

judicial act [citation], and is to be distinguished from the ministerial act of entering the 

judgment as pronounced in the minutes or records of the court.” (People v. Hartsell

(1973) 34 Cal.App.3d 8, 13, disapproved on another ground in Karaman, supra, at 

pp. 345–346, fn. 11; see Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 723–

724; §§ 12, 1202, 1445.) Recording unpronounced terms in the minutes or in the abstract 

of judgment cannot substitute for actually imposing a sentence on all counts. (People v. 

Zackery (2007) 147 Cal.App.4th 380, 387–388.)

“The failure to pronounce sentence on a count is an unauthorized sentence and 

subject to correction on remand.” (People v. Price (1986) 184 Cal.App.3d 1405, 1411, 

fn. 6.) Accordingly, this matter must be remanded for the trial court to orally pronounce 

sentence on count 4 and issue an amended abstract of judgment identifying the term on 

that count. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell) [it is important to 

correct errors and omissions in the abstract of judgment].)

III. No-visitation Order

Defendant contends, and the People agree, that the minute order must be corrected 
20.

to state defendant is to have “no visitation” with the victims, instead of “no contact” with

the victims. 

The probation officer recommended the following as part of defendant’s sentence: 

“In compliance with Penal Code Section 1202.05, the defendant is to have no visitation 

with the victim.” At sentencing, the trial court stated, “the defendant is to have no 

visitation with any of the named victims.” The minute order however states: “Defendant 

is to have no contact with victims.” (Italics added.) The abstract of judgment does not 

reference an order regarding the victims. 

“Section 1202.05 requires a sentencing court to prohibit visitation between a 

defendant and his ‘child victim’ if the defendant is convicted of an offense involving 

sexual abuse of a child ‘and the victim . . . is a child under the age of 18 years.’ ” (People

v. Scott (2012) 203 Cal.App.4th 1303, 1312 (Scott).)9 Similar to the circumstances here, 

the trial court in Scott orally pronounced an order “ ‘prohibiting visitation’ ” by the 

defendant with both of his victims, but the abstract of judgment and minute order stated 

the defendant was to have no contact with his victims. (Scott, at p. 1309.) The Court of 

Appeal concluded the minute order and abstract of judgment “cannot properly be 

characterized as orders of the court” because the court’s oral pronouncement of sentence 

constitutes the judgment. (Id. at p. 1324.) The Scott court recognized that “[t]o the 

extent a minute order diverges from the sentencing proceedings it purports to 

memorialize, it is presumed to be the product of clerical error.” (Ibid.) The court 

9 Section 1202.05, subdivision (a) provides in relevant part: “Whenever a person 

is sentenced to the state prison on or after January 1, 1993, for violating [multiple 

sections including sections 287 and 288] 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. The court’s order shall be transmitted to the Department 

of Corrections [and Rehabilitation], to the parents, adoptive parents, or guardians, or a 

combination thereof, of the child victim, and to the child victim. If any parent, adoptive 

parent, or legal guardian of the child victim, or the child victim objects to the court’s 

order, he or she may request a hearing on the matter.”
21.

accordingly concluded the clerk’s reference to no contact in the minute order and abstract 

of judgment was a clerical error subject to correction by the court. (Ibid.)

“Any discrepancy between the judgment as orally pronounced and as recorded in 

the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.” 

(People v. Leon (2020) 8 Cal.5th 831, 855.) Here, like in Scott, the trial court ordered 

defendant to have no visitation with the child victims, but the minute order states 

defendant is to have “no contact” with the victims. The reference to “no contact” in the 

minute order is thus presumed to be a clerical error.10

While an appellate court may correct clerical errors at any time (Mitchell, supra, 

26 Cal.4th at p. 185), neither party to this appeal recognized the trial court’s oral 

pronouncement of the no-visitation order suffered from a judicial error. “Generally, a 

clerical error is one inadvertently made, while a judicial error is one made advertently in

the exercise of judgment or discretion.” (People v. Jack (1989) 213 Cal.App.3d 913, 

915; see In re Candelario (1970) 3 Cal.3d 702, 705.) The court ordered no visitation 

with “any” of defendant’s named victims. But section 1202.05 does not apply to victims 

who are adults at the time of sentencing. (Scott, supra, 203 Cal.App.4th at p. 1323 [“the 

restrictions on visitation imposed by [§ 1202.05] apply only to victims who are under the 

age of 18 at the time of the contemplated visitation”].) Defendant was sentenced in 2022, 

at which time one of his victims, N., was more than 18 years old. Section 1202.05 did 

not apply to N. and the court’s order prohibiting visitation with N. was unauthorized.

Upon remand to pronounce sentence on count 4, the trial court shall also

determine which victims must be included in a no-visitation order pursuant to section 

10 A no-contact protective order for victims may be issued in certain 

circumstances. (See, e.g., Scott, supra, 203 Cal.App.4th at pp. 1324–1325 [no-contact 

orders may be imposed under certain circumstances but not pursuant to § 1202.05]; see 

also § 136.2.) Neither party argues the trial court intended to issue a no-contact order and 

the record shows the court intended to issue a no-visitation order pursuant to section 

1202.05.
22.

1202.05. The court shall issue a modified no-visitation order pursuant to that 

determination and further amend the abstract of judgment to include the no-visitation 

order as modified.

DISPOSITION

The trial court is ordered to pronounce sentence on count 4 and issue an amended 

abstract of judgment that includes the sentence imposed on that count. The court is 

further ordered to determine the applicability of section 1202.05 to the victims and 

modify the no-visitation order as appropriate. The court is directed to forward a copy of 

the amended abstract of judgment and modified order to the Department of Corrections 

and Rehabilitation. In all other respects, the judgment is affirmed.

DETJEN, Acting P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.