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The People v. Howard Roy Smith

April 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HOWARD ROY SMITH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01540)

The opinion of the court was delivered by: Hoch , J.

P. v. Smith

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Howard Roy Smith on two counts of committing lewd acts on a 13-year-old member of his household (Pen. Code,*fn1 § 288, subd. (a)), and the trial court sentenced him to prison.

On appeal, defendant contends the trial court erred in ordering him to pay (among other fines and fees) "$600 pursuant to [section] 243.4 of the Penal Code," a main jail booking fee of $270.17, and a main jail classification fee of $51.34. The People concede that the fine imposed pursuant to section 243.4 was error and the matter should be remanded for further proceedings.

We strike the section 243.4 fine and remand for a further sentencing hearing, direct the trial court to correct the amount of the jail classification fee in the abstract of judgment, and otherwise affirm the judgment.

DISCUSSION*fn2

I

The $600 Fine Pursuant to Section 243.4

Defendant contends the trial court erred in imposing any fine under section 243.4. The People agree.

Section 243.4 defines certain categories of sexual battery, and states that a "violation of this subdivision" is punishable by imprisonment, plus a fine. We agree with the parties that, because defendant was not convicted of violating section 243.4, the fine imposed under this section constitutes an unauthorized sentence and must be stricken.

Based on defendant's conviction for twice violating section 288, subdivision (a), the trial court had discretion to impose a fine under section 288. Subdivision (e) of section 288 states: "Upon the conviction of any person for a violation of subdivision (a) . . . the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, ...


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