IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
August 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSHUA OWEN HAMILTON, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM032172)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Hamilton
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Joshua Owen Hamilton pleaded no contest to two counts of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a))*fn1 and admitted allegations he used force during the commission of those offenses (§ 1203.066, subd. (a)(1)). The trial court sentenced defendant to an aggregate term of 24 years in state prison and imposed, among other things, a $300 sex offender fine pursuant to section 290.3 and applicable penalty assessments. Defendant appeals, contending the $300 fine was unauthorized because, at the time he committed his offenses, section 290.3 specified that the applicable base fine was $200. The People agree the fine should be reduced to $200 for the first offense, but assert that the trial court erred in failing to impose an additional fine for the second offense. Defendant responds that the People forfeited the issue by failing to object below.
We shall conclude the $300 sex offender fine was unauthorized, vacate that fine, and remand the matter to the trial court with directions to impose a $200 fine pursuant to section 290.3 and recalculate the applicable penalty assessments. We shall further conclude that the People failed to establish the trial court erred in failing to impose a second sex offender fine and otherwise affirm the judgment.
A detailed recitation of the facts underlying the offenses is unnecessary to the resolution of the issues on appeal. Suffice it to say that defendant molested R.C. and S.C. between 2000 and 2003.*fn2
At the time defendant was sentenced, section 290.3, subdivision (a) provided, as it does today, that: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine."
Defendant was convicted of two offenses that subjected him to the imposition of sex offender fines. At the time he committed those offenses, former section 290.3, subdivision (a) provided for a $200 fine upon the first conviction and a $300 fine for each additional conviction. (Former § 290.3, subd. (a); Stats. 1995, ch. 91, § 121, p. 346.) The trial court imposed a single sex offender fine in the amount of $300. Neither party objected to the imposition of the $300 fine or the court's failure to impose a second sex offender fine at sentencing.
The $300 Sex Offender Fine Constitutes
An Unauthorized Sentence
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.)
Former section 290.3, which was in effect at the time defendant committed his offenses, does not authorize a fine of $300. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [Walz]; former § 290.3, subd. (a).) Rather, it required the trial court to impose a fine of $200 for the first conviction, or to impose no fine at all if it determined that defendant did not have the ability to pay. (Id. at p. 1370; former § 290.3, subd. (a).)
Former section 290.3 controls here. First, there is no indication in the amended version of section 290.3 that the Legislature intended that it apply retroactively. (§§ 3; 290.3; In re E.J. (2010) 47 Cal.4th 1258, 1272.) Second, fines imposed under section 290.3 are punitive, and thus, are subject to the prohibition against ex post facto laws. (Cal. Const., art. I, § 9; U.S. Const., art. I, § 10; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.)
The $300 fine imposed in this case constituted an unauthorized sentence. (Valenzuela, supra, 172 Cal.App.4th at p. 1248.) Because the error is jurisdictional, defendant may raise it for the first time on appeal. (Walz, supra, 160 Cal.App.4th at p. 1369.)
The People Failed To Establish The Trial Court
Erred In Failing To Impose An Additional Fine
For Defendant's Second Conviction
Each qualifying conviction in a single proceeding constitutes a separate conviction for purposes of imposing sex offender fines pursuant to section 290.3. (People v O'Neal (2004) 122 Cal.App.4th 817, 822.) A trial court is required to impose sex offender fines on each qualifying conviction, "unless the court determines that the defendant does not have the ability to pay the fine." (§ 290.3, subd. (a); Former § 290.3, subd. (a).) If, however, the trial court fails, without explanation, to impose such a fine, that is not a jurisdictional error. (Walz, supra, 160 Cal.App.4th at p. 1371.) "'"Because factual issues come into play in determining whether a defendant has the ability to pay the section 290.3 fine, the failure to impose the fine is 'not correctable without considering factual issues presented by the record or remanding for additional findings.' [Citation.] On a silent record, we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine."' [Citations.]" (Ibid.)
Here, the trial court imposed a sex offender fine for only one conviction. It did not state why it imposed no fine for defendant's other conviction. The People did not ask the trial court to impose an additional fine, nor did they object to the trial court's failure to do so. Accordingly, we must presume that the trial court determined that defendant did not have the ability to pay the additional fine. On remand, the trial court shall not impose any fine for defendant's other conviction pursuant to section 290.3.
The $300 sex offender fine imposed pursuant to section 290.3 is vacated. On remand, the trial court is directed to impose a $200 fine pursuant to section 290.3 and to recalculate the applicable penalty assessments. In all other respects, the judgment is affirmed.
We concur: BUTZ , J. MURRAY , J.