Superior Court of Monterey County, Nos. SS120428A, SS122230A The Honorable Pamela L. Butler Judge
Michael E. Allen under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Eric D. Share and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Naheed Mohmoud Hamed was convicted by jury of one count of possessing child pornography (Pen. Code, § 311.11). He
admitted enhancement allegations that he had served a prior prison term (§ 667.5, subd. (b)) and was sentenced to prison for a term of four years eight months. At sentencing, the court imposed fines and fees, including a $1, 230 sex offender fine (§ 290.3). On appeal, defendant challenges that fine, arguing that section 290.3 does not authorize a $1, 230 fine, that the correct amount of the fine is $300, and that the abstract of judgment does not identify the statutory basis for any additional assessments.
We hold that the court erred in both the manner in which it imposed the sex offender fine and in determining the amount of the penalty assessments attached thereto. We will therefore modify the judgment to impose a sex offender fine of $300, plus penalty assessments of $900, a net difference of $30. We will also direct the trial court clerk to prepare an amended abstract of judgment that sets forth the amounts and statutory bases of the sex offender fine and each of the penalty assessments imposed.
Facts & Procedural History
On March 5, 2012, at about 11:30 p.m., Monterey Police Officer Chad Ventimiglia pulled over the BMW defendant was driving for a speeding violation (traveling 80 miles per hour on a freeway). As Officer Ventimiglia spoke to defendant, he smelled marijuana. The officer asked defendant if he had any drugs in the car; defendant admitted that he had marijuana. Officer Ventimiglia requested defendant’s identification, determined that he was on active parole, did a parole search of the car, and found marijuana residue in the passenger compartment. Officer Ventimiglia and another officer, Amy Carrizosa, then searched the trunk of the BMW. In a duffel bag inside the trunk, they found about 100 photographs depicting naked male and female children of various ages, ranging from infants to teens, engaged in sexual acts, often with adults. The photos had been printed from a variety of Internet websites. Defendant was arrested at the scene.
While being transported to jail, defendant told Officer Carrizosa the photos were not his; he said he found them in the car, which belonged to the auto dealership where he worked. But when Officer Ventimiglia interviewed defendant at the police station, he told two different stories. Initially, he said he got the photos from a friend’s computer; later, he said he printed them at work. When Officer Ventimiglia confronted defendant with these discrepancies, defendant said he lied to Officer Carrizosa because he “didn’t want to get his friend in trouble.”
Case No. SS120428A – Possession of Child Pornography
Defendant was charged by information with one count of possession of child pornography (§ 311.11, subd. (a)). The information also alleged that defendant had served a prior prison term (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the prison prior.
Defendant filed a motion to suppress the pornographic photographs obtained from the search of his trunk. At the hearing on that motion, defendant testified that he could not have been driving 80 miles per hour because a “governor” had been installed on the BMW, which limited its speed to 72 miles per hour. He submitted an exhibit that purported to be an invoice prepared by the company that manufactured the governor (hereafter Exhibit A). The court denied the motion, stating that it found Exhibit A “quite concerning” because the font in the entry describing the “speed limiter program” was different from the font used in the rest of the invoice. The court also found Officer Ventimiglia’s testimony credible.
The case went to trial before a jury. After the jury found defendant guilty on the possession of child pornography count, defendant waived a jury trial on the prison prior allegation and admitted that allegation.
Case No. SS122230A - Perjury and False Evidence
Prior to sentencing in the possession of child pornography case, the prosecution filed a new complaint, charging defendant with three offenses arising out of his conduct at the hearing on the motion to suppress. The complaint charged defendant with one felony count of perjury under oath (§ 118, subd. (a)), one felony count of offering false evidence (§ 132), and one felony count of preparing false evidence (§ 134). An amended complaint added enhancement allegations that defendant had served a prior prison term (§ 667.5, subd. (b)) and that he committed the new offenses while on bail and out of custody in his other case (§ 12022.1; Case No. SS120428A).
In January 2013, pursuant to a negotiated disposition, defendant pleaded no contest to offering false evidence (§ 132) in exchange for a stipulated sentence of eight months in prison (one-third the lower term) consecutive to the sentence to be imposed in the possession-of-child-pornography case and an agreement to dismiss the remaining counts and enhancements in the perjury and false statements case.
Sentencing in Both Cases
The court sentenced defendant in both cases on January 11, 2013. In Case No. SS120428A, the court imposed the upper term of three years for possession of child pornography, plus one year for the prison prior. In Case No. SS122230A, pursuant to the negotiated plea, the court sentenced defendant to eight months for offering false evidence, consecutive to the sentence in the child pornography case. The total term was four years eight months. The court also ...