Filed 7/27/26 P. v. Montoya 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE, C104268
Plaintiff and Respondent,
(Super. Ct. No. 22CF05766)
v.
ROBERT MARTINE MONTOYA,
Defendant and Appellant.
Appointed counsel for Robert Martine Montoya asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436.) Our review of the record revealed that the trial court imposed a
sex offender fine in an unauthorized amount and without mentioning the accompanying
penalty assessments. We will modify the judgment and order the trial court to issue a
corrected abstract of judgment; in all other aspects we affirm the judgment.
BACKGROUND
The facts underlying defendant’s crime are not relevant to the issues we address
on appeal. It suffices to say that defendant pled no contest to rape of an unconscious
person in exchange for a maximum sentence of eight years in prison. The trial court
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dismissed three other counts in accordance with the plea agreement and with a Harvey1
waiver.
At sentencing, defense counsel argued for a middle term sentence. The trial court
found the following aggravating circumstances true beyond a reasonable doubt: the
crime involved acts disclosing a high degree of cruelty, viciousness, or callousness; the
victim was particularly vulnerable; defendant sexually assaulted the victim on multiple
occasions; and the victim was a minor. In mitigation, the court found defendant was a
youthful offender. The court found the aggravating circumstances outweighed the
mitigating circumstances and imposed the upper term of 8 years in prison.
The trial court also imposed a $300 restitution fine (Pen. Code,2 § 1202.4, subd.
(b)); a $300 parole revocation fine (suspended unless parole is revoked) (§ 1202.45), a
$40 court operations assessment (§ 1465.8, subd. (a)(1)); a $30 criminal conviction
assessment (Gov. Code, § 70373); and a $1,170 sex offender fine (§ 290.3).
The trial court stated, “The fines and fees [were] set forth on page 14 of the
probation report.” As to the section 290.3 fine, the probation report states: “Pay a fine
per §290.3 [Penal Code] in the amount of $300.00 (plus a $60.00 Court Surcharge (per
§ 1465.7 [Pen. Code]), $150.00 State Court Facilities Construction Fund Fee (per
§ 70372 [subd.,] (a) [Gov. Code]), $300.00 State Penalty Assessment (per §1464 [Pen.
Code]), a $210.00 County Penalty Assessment (per § 76000 [Gov. Code]), $30.00 DNA
Identification Fund Fee (per § 76104.6 [Gov. Code]), and $120.00 DNA Identification
Fund fee (per § 76104.7 [Gov. Code], Total: $1,170.00 (Applies to any offense under
§ 290 [subd.,] (a) [Pen. Code]).” The court found defendant had the ability to pay the
imposed fines and fees. The abstract of judgment lists the fine for section 290.3 in the
1 People v. Harvey (1979) 25 Cal.3d 754.
2 Undesignated section references are to the Penal Code.
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amount of $1,170 and does not set forth the amount of or the statutory basis for each
penalty assessment.
Defendant timely appealed but did not obtain a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case asking
this court to review the record and determine whether there are any arguable issues on
appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing of the opening
brief. More than 30 days have passed, and we have received no communication from
defendant.
Our review of the record discloses that the trial court imposed an unauthorized
sentence. Section 290.3 provides in pertinent part, “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 violation 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.” (§ 290,
subd. (a).)
The imposition of a section 290.3 fine in the total amount of $1,170 or the
imposition of a $300 base fine plus $870 in penalty assessments without citing the
statutory basis for the penalty assessments are both unauthorized sentences. “[A]n
unauthorized sentence may be corrected at any time even if there was no objection in the
trial court. [Citations.] Such an unauthorized sentence may be corrected even when
raised for the first time on appeal.” (People v. Valenzuela, (2009) 172 Cal.App.4th 1246,
1248-1249 [“The fine imposed in this case constituted an unauthorized sentence”], citing
In re Sheena K. (2007) 40 Cal.4th 875, 886, and People v. Smith (2001) 24 Cal.4th 849,
854.)
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The trial court imposed the sex offender fine in the amount of $1,170 as set forth
in the probation report. We construe the court’s statement to mean that it intended to
impose the section 290.3 fine and the corresponding penalty assessments, which are listed
in the probation report, but erroneously failed to list each penalty assessment and their
respective corresponding amounts at sentencing. We shall therefore modify the judgment
to include a $300 section 290.3 fine and penalty assessments in the following amounts: a
$60.00 Court Surcharge (§ 1465.7), a $150.00 State Court Facilities Construction Fund
Fee (Gov. Code, § 70372, subd. (a)), a $300.00 State Penalty Assessment (§ 1464), a
$210.00 County Penalty Assessment (Gov. Code, § 76000), a $30.00 DNA Identification
Fund Fee (Gov. Code, § 76104.6), and a $120.00 DNA Identification Fund fee (Gov.
Code, § 76104.7).
Having undertaken an examination of the entire record, we find no other arguable
error that is favorable to defendant.
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DISPOSITION
The imposition of a $1,170 section 290.3, subdivision (a) fine is reversed. The
judgment is modified to include a $300 section 290.3, subdivision (a) fine and the penalty
assessments, as listed ante. Upon remittitur issuance, the clerk of the superior court is
directed to prepare an amended abstract of judgment reflecting these modifications and
forward a copy to the Department of Corrections and Rehabilitation. The judgment is
affirmed as modified.
\s\
KRAUSE, J.
We concur:
\s\
RENNER, Acting P. J.
\s\
BOULWARE EURIE, J.
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