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The People v. Joshua Owen Hamilton

August 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FACTUAL BACKGROUND

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

DISCUSSION

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.

I

The $300 Sex Offender Fine ...


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