Filed 12/30/20 P. v. Martinez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

NOE FERNANDO MARTINEZ,

Defendant and Appellant.

 B302433

 (Los Angeles County

 Super. Ct. No. BA469641)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Ray G. Jurado, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael R. Johnsen and David W. 

Williams, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

I. INTRODUCTION

A jury convicted defendant and appellant Noe Fernando 

Martinez of sexual penetration by a foreign object and sexual 

battery by restraint. The trial court sentenced defendant to three 

years in prison and issued a criminal protective order protecting 

defendant’s victim, F.H. On appeal, defendant contends the court 

erred by admitting his pretrial custodial statements to the police, 

which were purportedly obtained in violation of his rights 

pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), 

erred in instructing the jury on the elements of the crime of 

sexual penetration by a foreign object, and erred in issuing a 

criminal protective order that purports to prevent him from 

contacting his children. We affirm.

II. FACTUAL BACKGROUND

Defendant began a romantic relationship with F.H. in 

2011. Defendant and F.H. had two daughters together, one born 

in 2014, and the other born in 2017. After the birth of the first 

daughter, F.H. quit her job as a housekeeper to take care of the 

baby. Defendant worked two jobs.

In 2016, defendant hurt his back and stopped working for a

period of time. After defendant’s injury, his personality changed. 

Defendant began to call F.H. “fat,” “trash,” and “cow;” complained 

about her cooking and cleaning; and refused to shower for several 

days.

F.H. and defendant frequently argued about money and 

sex. Defendant wanted sex every day. F.H. “almost never” 
3

wanted to engage in sex but did so in order to “pleasure” 

defendant.

On June 28, 2018, F.H. was cutting vegetables for pupusas, 

which she planned to sell. This upset defendant, who tried to 

throw the food in the trash and twisted F.H.’s arms behind her 

back. F.H. was “very scared” and responded by grabbing 

defendant’s testicles. Defendant’s father eventually separated 

the two.

Shortly after this incident, F.H. told defendant that she did 

not love him anymore. F.H. stopped engaging in sex with 

defendant and defendant began to sleep on a sofa located in the 

bedroom.

On July 11, 2018, at around midnight, defendant 

approached F.H. while she was in bed with one of their 

daughters. Defendant grabbed her arms and pulled her to the 

sofa. Defendant removed F.H.’s clothes and touched her vagina.1 

F.H. responded by kicking defendant and hitting him on the side 

of his body until he let her go. F.H. then returned to the bed and 

wrapped herself in a blanket.

Five minutes later, defendant went to the bed, removed the 

blanket from around F.H.’s body, and digitally penetrated her

anus three times, causing her pain.

2 F.H. reported the incident 

to police.

On July 14, 2018, defendant was arrested by Los Angeles 

Police Department officers and transported to a police station. At 

the police station, a Spanish speaking officer and a detective (the 

officers) interviewed defendant. Defendant admitted to the 

1 This conduct formed the basis for count 2.

2 This conduct formed the basis for count 1.
4

officers that on the evening of July 11, 2019, F.H. did not want to 

have sex with him and he digitally penetrated F.H.’s anus in 

anger. Defendant also admitted that he pulled F.H. out of bed 

that night.

III. PROCEDURAL HISTORY

On December 26, 2018, the Los Angeles County District 

Attorney charged defendant by information with sexual 

penetration by a foreign object of F.H. (Count 1, Pen. Code,

3

§ 289, subd. (a)(1)(A)) and sexual battery by restraint of F.H. 

(Count 2, § 243.4, subdivision (a)).

4

On August 6, 2019, the jury found defendant guilty on both 

counts.

On November 13, 2019, the trial court sentenced defendant 

to an aggregate sentence of three years and issued a 10-year 

domestic violence restraining order, pursuant to section 136.2, 

subdivision (i)(1), protecting F.H. from defendant.

3 Further statutory references are to the Penal Code unless 

otherwise indicated.

4 A third count for violation of section 243.4, subdivision (a) 

was dismissed before trial.
5

IV. DISCUSSION

A. Miranda Rights and Waiver

1. Background

Prior to their interview of defendant, the officers delivered 

certain admonitions to him. The admonishment was recorded on 

video and transcribed:

“[Officer]: Um, what we’re gonna do right now is, we’re 

gonna talk about [sic] you of the incident, but first, since we are 

where we are, I have to advise you of your rights, okay? Do you 

understand what I’m saying?

“[Detective]: We’re gonna read the—your rights, okay?

“[Defendant]: Okay.

“[Detective]: Okay. You have the right to rem[a]in silent.

“[Defendant]: Um-hum.

“[Detective]: Do you understand?

“[Officer]: It’s yes or no.

“[Defendant]: Yeah.

“[Officer]: Yes.

“[Defendant]: Yeah. Yes.

“[Detective]: You have to s—yes or no.

“[Defendant]: Yes.

“[Detective]: Anythings [sic] you say may be used against 

you in [a] court of law.

“[Defendant]: Oh, wel—

“[Detective]: Do you understand?

“[Defendant]: Yes.
6

“[Detective]: You have the right to the presence of an 

attorney before and during any integration [sic]. Do you 

understand?

“[Defendant]: Yes.

“[Detective]: If y— if you have no man— if you have no 

money to pay an attorney, one will be appointed to you freed [sic] 

of cost . . .

“[Defendant]: Um-hum. Yes.

“[Detective]: . . . before . . .

“[¶] . . . [¶]

“[Detective]: Before any integration [sic], . . .

“[Defendant]: Um-hum.

“[Detective]: . . . if that’s what you want—if y—what you 

want. Do you understand?

“[Detective]: Okay.

“[Detective]: Yes?

“[Defendant]: Uh, yes.”

The detective did not ask defendant whether, knowing his 

rights, he wished to speak to the officers. Instead, as recounted 

in the reporter’s transcript by defense counsel: “When [the 

officer] gets to the last advisement, which is typically, ‘Knowing 

these rights, do you wish to talk to us?’[,] the detective 

specifically [stated], ‘Don’t read that last one,’[5] and stop[ped] the 

Spanish speaking officer from advising [defendant] of that. After 

that, the detective just ask[ed] preliminary questions, such as, 

‘Where do you live?’ and things of that nature.”

5 This is not reflected in the English transcription of the 

recorded interrogation. The prosecutor conceded that this 

occurred and the trial court, upon reviewing the recording, 

agreed.
7

After asking these preliminary questions, the officers asked 

defendant whether he knew why he was “here,” referring to the 

police station. Defendant responded, “Uh? That’s what I wanna 

know, why did she accuse me over there in . . . .”

Defendant challenged, in the trial court, the admissibility

of his custodial statements to the officers. Defendant argued that 

the officers did not ask him whether he wanted to waive his 

Miranda rights prior to their interrogation of him, and that his 

waiver was not knowing and intelligent. Defendant did not 

testify but his counsel argued that he had no experience with law 

enforcement and did not understand the implications of his 

statements to the police.

The trial court denied defendant’s motion to preclude his 

statements from trial: “I do not find that there’s any evidence 

that [defendant] was confused, misled, or reluctant to speak. [¶] 

I do not find that there is any suggestion that the police resorted 

to any physical or psychological pressure to get [defendant] to 

speak. I do not find—there is no evidence to suggest that he was 

induced to provide statements based on improper promises or 

that there was any other fact that would tend to show that his 

statement was involuntary. [¶] I do find that he was aware of 

his rights, and that he was aware that when he chose to continue 

speaking that he was abandoning those rights, and understood 

the consequences of his decision to do so. [¶] . . . [Defendant’s] 

waiver was implicit and . . . it was knowingly, freely and 

voluntarily made.”
8

2. Analysis

On appeal, defendant contends that “the record does not 

support a finding that [he] made a knowing and voluntary waiver 

of his Fifth Amendment rights before answering the officer[s’]

questions in the custodial interrogation.” In defendant’s view, 

the record demonstrates that he did not voluntarily waive his 

right to remain silent because: the officers failed to expressly ask 

whether defendant waived his rights; the officers failed to advise 

him at the outset of the interrogation why they were 

interrogating him; and he had a limited criminal record.

“The test for validity [of a Miranda waiver] is as follows. 

‘First, the relinquishment of the right must have been voluntary 

in the sense that it was the product of a free and deliberate choice 

rather than intimidation, coercion, or deception. Second, the 

waiver must have been made with a full awareness of both the 

nature of the right being abandoned and the consequences of the 

decision to abandon it. Only if the “totality of the circumstances 

surrounding the interrogation” reveals both an uncoerced choice 

and the requisite level of comprehension may a court properly 

conclude that the Miranda rights have been waived.’” (People v. 

Molano (2019) 7 Cal.5th 620, 648 (Molano).) “‘The prosecution 

bears the burden of demonstrating the validity of the defendant’s 

waiver by a preponderance of the evidence.’ [Citations.] In 

addition, ‘[a]lthough there is a threshold presumption against 

finding a waiver of Miranda rights [citation], ultimately the 

question becomes whether the Miranda waiver was [voluntary,] 

knowing and intelligent under the totality of the circumstances

surrounding the interrogation.’ [Citation.] On appeal, we 

conduct an independent review of the trial court’s legal 
9

determination and rely upon the trial court’s findings on disputed 

facts if supported by substantial evidence.” (People v. Williams 

(2010) 49 Cal.4th 405, 425.)

Here, the officers did not expressly ask defendant whether, 

after being advised of his rights, he wished to waive them. But 

that fact, alone, is insufficient to demonstrate that defendant’s

waiver was involuntary. “It is well settled that law enforcement 

officers are not required to obtain an express waiver of a suspect’s 

Miranda rights prior to a custodial interview and that a valid 

waiver of such rights may be implied from the defendant’s words 

and actions.” (People v. Parker (2017) 2 Cal.5th 1184, 1216.)6

Similarly, that the officers did not directly advise defendant 

that they wished to ask him about his sexual abuse of F.H. does 

not render defendant’s waiver involuntary. (See Molano, supra, 7 

Cal.5th at p. 652 [“[T]he fact that the officers did not tell 

defendant they were going to ask him about [the victim’s] killing 

does not invalidate the waiver. Defendant’s lack of ‘awareness of 

all the possible subjects of questioning in advance of 

interrogation is not relevant to determining whether [he] 

voluntarily, knowingly, and intelligently waived his Fifth 

Amendment privilege.’”].) In any event, and contrary to 

defendant’s contention on appeal that he did not know why the 

officers were interviewing him, there is substantial evidence to 

support a finding that defendant was well aware of the purpose of 

the officers’ interview since he responded to their question, “You 

6 Further, because the officers were not required to obtain an 

express waiver of defendant’s Miranda rights from him, even “the 

intentional failure to do so [is] not a deliberate Miranda violation 

requiring the suppression of [defendant’s] subsequent 

statements.” (People v. Cunningham (2015) 61 Cal.4th 609, 642.)
10

know why you’re here?”, with, “That’s what I wanna know, why 

did she accuse me over there in . . . .”

Finally, we reject defendant’s contention that his waiver 

was not voluntary because he “had a limited criminal record, had 

never before been interrogated by police and had no 

sophistication with the criminal justice system.” Prior experience 

with the criminal justice system is not necessary to find a valid 

waiver. (See People v. Suarez (2020) 10 Cal.5th 116, 161 [“the 

fact that he lacked experience with the criminal justice system

did not invalidate his waiver or render his subsequent 

statements involuntary in the circumstances here”].) Moreover, 

even if defendant lacked an extensive criminal record, he did 

have prior interactions with law enforcement since he had a prior 

criminal conviction for driving with a .08 percent blood alcohol 

content, a misdemeanor, and had pending charges for driving 

under the influence of alcohol, driving with .08 percent blood 

alcohol content, and driving with a suspended or revoked license, 

among other charges. Further, there was no evidence that 

defendant had not previously been interrogated by the police. On 

this record, and based on the totality of the circumstances, we 

conclude that there was substantial evidence to support the 

court’s conclusion that defendant knowingly and voluntarily 

waived his Miranda rights.

B. Instructional Error

1. Background

In instructing the jury on count 1, sexual penetration by a 

foreign object, the trial court stated that this crime “requires 
11

general criminal intent.” The court continued: “For you to find a 

person guilty of this crime, that person must not only commit the 

prohibited act, but must do so with wrongful intent. A person 

acts with wrongful intent when he intentionally does a prohibited 

act, however, it’s not required that he intended to break the law. 

The act required is explained in the instruction for that crime.”

In instructing the jury on the elements of sexual 

penetration by a foreign object, the trial court read CALCRIM 

No. 1045: “To prove the defendant guilty of this crime, the People 

must prove that: [¶] [1.] The defendant committed an act of 

sexual penetration with another person; [¶] [2.] The penetration 

was accomplished by using a foreign object; [¶] [3.] The person 

did not consent to the act; [¶] AND [¶] [4.] The defendant 

accomplished the act by force, violence, duress, menace or fear of 

immediate and unlawful bodily injury to another person.” The 

court further instructed the jury that: “Sexual penetration 

means penetration, however slight, of the genitals or anal 

opening of the other person for the purpose of sexual abuse, 

arousal, or gratification.” (See § 289, subd. (k).) The court did 

not deliver the optional instruction set forth in CALCRIM 

No. 1045 that “[p]enetration for sexual abuse means penetration 

for the purpose of causing pain, injury, or discomfort.” (Italics 

omitted.)

On count 2, sexual battery, the trial court correctly 

instructed the jury that this crime required specific intent: “For 

you to find a person guilty of this crime, that person must not 

only intentionally commit the prohibited act, but must do so with 

a specific intent or mental state.” The court also instructed the 

jury that to prove defendant’s guilt of sexual battery, “the People 

must prove that [¶] . . . [¶] [t]he touching was done for the 
12

specific purpose of sexual arousal, sexual gratification or sexual 

abuse.”

During closing argument, the prosecutor, in discussing 

count 1, stated: “And certainly, there is an intent requirement as 

well. The defendant had to have done this for the purposes of 

either sexual gratification, arousal, or sexual abuse, or a 

combination of any of those.”

2. Analysis

Defendant contends the trial court erred by failing to 

instruct the jury that “penetration for sexual abuse” means 

“‘penetration for the purpose of causing pain, injury, or 

discomfort’” and in instructing the jury that the crime of sexual 

penetration by a foreign object is a general intent crime. We find 

no reversible error.

“A claim of instructional error is reviewed de novo. 

[Citation.] An appellate court reviews the wording of a jury 

instruction de novo and assesses whether the instruction 

accurately states the law. [Citation.] In reviewing a claim of 

instructional error, the court must consider whether there is a 

reasonable likelihood that the trial court’s instructions caused 

the jury to misapply the law in violation of the Constitution. 

[Citations.] The challenged instruction is viewed ‘in the context 

of the instructions as a whole and the trial record to determine 

whether there is a reasonable likelihood the jury applied the 

instruction in an impermissible manner.’” (People v. Mitchell 

(2019) 7 Cal.5th 561, 579.)

We disagree with defendant’s contention that the trial 

court delivered an “incomplete” instruction on count 1 when it 
13

failed to define “sexual abuse.” Trial courts have a duty to define 

technical terms that have meanings peculiar to the law, but “no 

duty to clarify, amplify, or otherwise instruct on commonly 

understood words or terms used in statutes or jury instructions. 

‘When a word or phrase “‘is commonly understood by those 

familiar with the English language and is not used in a technical 

sense peculiar to the law, the court is not required to give an 

instruction as to its meaning in the absence of a request.’”

[Citations.] A word or phrase having a technical, legal meaning 

requiring clarification by the court is one that has a definition 

that differs from its nonlegal meaning. [Citation.]’” (People v. 

Griffin (2004) 33 Cal.4th 1015, 1022–1023.)

Section 289 defines “sexual penetration” as “the act of 

causing the penetration, however slight, of the genital or anal 

opening of any person . . . for the purpose of sexual arousal, 

gratification, or abuse by any foreign object, substance, 

instrument, or device, or by any unknown object.” (§ 289, subd.

(k)(1).) A plain reading of section 289, subdivision (k)(1) supports 

a conclusion that the Legislature did not intend “sexual abuse” to 

be given a technical meaning that differs from the commonly 

understood meaning of “sexual abuse.” “Sexual” is defined as “of, 

relating to, or associated with sex or the sexes.” 

(<https://www.merriam-webster.com/dictionary/sexual> [as of 

Dec. 27, 2020], archived at <https://perma.cc/8DWC-WQNN>.) 

“Abuse” is defined as “physical maltreatment.” 

(<https://www.merriam-webster.com/dictionary/abuse> [as of 

Dec. 27, 2020], archived at <https://perma.cc/N3MX-PZJP>.) 

Thus, the commonly understood meaning of “sexual abuse” is the 

physical maltreatment of anyone in a sexual manner, which we 
14

believe any reasonable trier of fact would understand as 

including the incident here.

We agree with defendant that the trial court erred when it 

instructed the jury that sexual penetration by force is a general 

intent crime. (See People v. McCoy (2013) 215 Cal.App.4th 1510, 

1540 [“in drafting section 289, the Legislature required the act of 

penetration to be committed with the specific intent to gain 

sexual arousal or gratification or to inflict abuse on the victim”]; 

accord, People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 

1167; see People v. Alvarado (2005) 125 Cal.App.4th 1179, 1186 

[“Specific intent crimes typically contain such phrases as ‘“with 

the intent to”’ achieve or ‘“for the purpose of”’ achieving some 

additional result”].) We conclude, however, that the court’s error 

was harmless even assuming that the more stringent harmless 

beyond a reasonable doubt standard applies. (Chapman v. 

California (1967) 386 U.S. 18, 24 (Chapman).) Under the 

Chapman standard, we ask “‘whether it is clear beyond a 

reasonable doubt that a rational jury would have rendered the 

same verdict absent the error.’” (People v. Canizales (2019) 7 

Cal.5th 591, 615.)

The trial court’s error here was harmless beyond a 

reasonable doubt. The court correctly instructed the jury that to 

find defendant guilty of sexual penetration, it was required to 

find that defendant engaged in “penetration . . . for the purpose of 

sexual abuse, arousal or gratification.” In other words, even

though the court incorrectly instructed the jury that sexual 

penetration is a general intent crime, the court correctly 

instructed the jury that it was required to find that defendant 

acted with the required intent. Second, the prosecutor accurately 

stated that “there is an intent requirement” to the charge. Third, 
15

the jury found defendant guilty of count 2, sexual battery, a crime 

for which the court correctly instructed the jury it must find 

specific intent. A rational jury could not have concluded that 

when defendant grabbed F.H.’s arms and touched her vagina, he 

acted with the purpose of sexual arousal, sexual gratification, or 

sexual abuse, but that he lacked such intent when, five minutes 

later, he digitally penetrated F.H.’s anus. Finally, the evidence 

that defendant acted with specific intent in sexually penetrating 

F.H. was strong: F.H. testified that she felt pain when defendant

inserted his finger into her anus. And, defendant admitted to the 

police that he digitally penetrated F.H.’s anus because he wanted 

sex and was angry at her. (See People v. White (1986) 179 

Cal.App.3d 193, 205 [“‘when a penetration is accomplished for the 

purpose of causing pain, injury or discomfort, it becomes sexual 

abuse’”].)7

C. Criminal Protective Order

1. Background

At sentencing, the trial court issued a 10-year domestic 

violence restraining order pursuant to section 136.2, 

subdivision (i)(1), protecting F.H. from defendant. The court read 

7 Defendant also asserts that reversal is required based on 

cumulative error. “Under the ‘cumulative error’ doctrine, we 

reverse the judgment if there is a ‘reasonable possibility’ that the 

jury would have reached a result more favorable to defendant 

absent a combination of errors.” (People v. Poletti (2015) 240 

Cal.App.4th 1191, 1216.) Defendant has identified only one 

error, which we found harmless. Accordingly, the cumulative 

error doctrine does not apply.
16

the order into the record as follows: “It says you must not harass 

her, strike her, threaten her, assault her or follow, stalk, molest, 

destroy or damage her property. You cannot disturb her peace, 

keep her under surveillance or block her movements. [¶] While 

the order is in effect, and it will be in effect for 10 years, you 

cannot own or possess a firearm. [¶] You must not attempt to 

prevent anyone from attending a hearing or testifying or making 

a report to law enforcement. [¶] You cannot take any action to 

obtain the addresses or locations of the victim or her family 

members. You must have no contact whatsoever with her. You 

must stay at least a hundred yards away from her.” The court 

also issued a written order, paragraph 10 of which provided that 

defendant “must take no action to obtain the addresses or 

locations of protected persons or their family members, 

caretakers or guardian.”

2. Analysis

Defendant contends the trial court lacked authority to issue 

the protective order, which he characterizes as “improperly 

includ[ing] the daughters” because there was no evidence that 

defendant had harmed or attempted to harm his daughters. He 

alternatively argues that the protective order, specifically, 

paragraph 10, is unconstitutionally vague and ambiguous. 

Finally, he complains that the protective order “could be 

construed to prevent [him] from . . . seeking visitation or shared 

custody through the Family Law courts.”

We review de novo whether the trial court’s protective 

order was authorized by statute. (People v. Delarosarauda (2014) 

227 Cal.App.4th 205, 210 (Delarosarauda).) We also review de 
17

novo defendant’s constitutional challenge to the order. (See 

People v. Scott (2016) 3 Cal.App.5th 1265, 1271.)

We reject defendant’s argument that the trial court lacked 

authority to issue the protective order. Indeed, section 136.3, 

subdivision (a) requires the order that was issued here: “The 

court shall order that any party enjoined pursuant to [s]ection 

136.2 be prohibited from taking any action to obtain the address 

or location of a protected party or a protected party’s family 

members, caretakers, or guardian, unless there is good cause not 

to make that order.” (Italics added.) Here, there is no evidence 

in the record of the existence of good cause to allow defendant to 

obtain his daughters’ address or location. For instance, the 

record does not reveal, one way or the other, whether the children 

are the subject of a visitation or custody order.

Next, we reject defendant’s characterization of the 

protective order as improperly including the daughters as 

protected persons. We agree that “[o]n the record before the trial 

court, there was no reason to believe that any crime was being or 

had been perpetrated or attempted to be perpetrated against [the 

daughters].” (Delarosarauda, supra, 227 Cal.App.4th at p. 211.) 

The protective order, however, did not list the daughters as 

protected persons. It only listed F.H. as a protected person.

Further, the protective order is not impermissibly vague. 

“[T]he underpinning of a vagueness challenge is the due process 

concept of ‘fair warning.’ [Citation.] The rule of fair warning 

consists of ‘the due process concepts of preventing arbitrary law 

enforcement and providing adequate notice to potential offenders’ 

[citation], protections that are ‘embodied in the due process 

clauses of the federal and California Constitutions. (U.S. Const., 

Amends. V, XIV; Cal. Const., art. I, § 7).’” (In re Sheena K. (2007)
18

40 Cal.4th 875, 890.) Under the concept of fair warning, the 

government is barred “from enforcing a provision that ‘forbids or 

requires the doing of an act in terms so vague’ that people of 

‘common intelligence must necessarily guess at its meaning and

differ as to its application.’” (People v. Hall (2017) 2 Cal.5th 494, 

500.) Here, by its plain terms, paragraph 10 of the order 

prevents defendant from taking affirmative acts to obtain the 

address or location of F.H.’s family members, which includes

defendant’s daughters. It requires no guessing as to its meaning.

Finally, we reject defendant’s contention that, despite the 

absence of any express prohibition, the protective order “could be 

construed to prevent [him] from . . . seeking visitation or shared 

custody through the Family Law courts.” Nothing in the 

protective order prevents defendant from seeking visitation or 

sharing custody of the children. Moreover, section 136.2 

contemplates the issuance of visitation and custody orders in 

conjunction and coordination with a criminal protective order. 

(See § 136.2, subds. (e)(3) & (f); see also Cal. Rules of Court, rule 

5.445(b)(1)(D) [rule requiring court communication protocol in 

domestic violence cases involving child custody intended to 

“[p]ermit appropriate visitation between a criminal defendant 

and his or her children under civil court orders, but at the same 

time provide for the safety of the victim or witness by ensuring 

that a criminal court protective order is not violated”]; cf. In re 

N.L. (2015) 236 Cal.App.4th 1460, 1466 [in context of domestic 

violence restraining order pursuant to Welf. & Inst., § 213.5,

subd. (a), “[m]onitored visitation of a child is not incompatible 

with a restraining order”].) In any event, and as we discussed

above, there is no indication in the record that a family law order 

regarding visitation or custody has issued. Thus, any possible 
19

violation of defendant’s visitation or custody rights is not ripe for 

review. (People v. England (2000) 83 Cal.App.4th 772, 780.)8

8 To the extent there is an issue with visitation or custody in 

the future, the criminal protective order is subject to 

modification. (See Super. Ct. L.A. County, Local Rules, rule 

8.34(d); see also Cal. Rules of Court, rule 5.445(c)(2) [every 

superior court must adopt local rules which include “[a] 

procedure by which the court that has issued a criminal court 

protective order may, after consultation with a court that has 

issued a subsequent child custody or visitation order, modify the 

criminal court protective order to allow or restrict contact 

between the person restrained by the order and his or her 

children”].)
20

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.