P. v. Rivera

Filed 6/20/08 P. v. Rivera 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant Justo David Rivera entered a plea of guilty to an added count of sexual battery, a felony (Pen. Code,  243.4, subd. (a))^[1]and the remaining counts (forcible rape and elder abuse) were dismissed. The court sentenced defendant to state prison for the midterm of three years.

Defendant appeals, contending the trial court erroneously imposed the sex offender fine or, in the alternative, counsel rendered ineffective assistance in failing to object. We shall strike the sex offender fine as erroneously imposed in view of the trial courts finding that defendant had no ability to pay.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying the offense need not be recounted in detail. The 47-year-old defendant forced the 80-year-old victim to have sexual intercourse with him. They met in church and he had been invited to her house to pray.

The probation officer recommended numerous fees and fines as well as restitution, noting that defendant appears able-bodied with marketable job skills. Because of his immigration status, however, he had never been gainfully employed. He had only performed [g]eneral labor for church members and [e]arned income from recycling. The probation officer recommended an $800 restitution fine, an $800 parole revocation restitution fine, victim restitution in an amount to be determined, a $20 court security fee, and a sex offender fine totaling $720 ($200 plus penalty assessments of $520).

At sentencing, the court stated that it had read and considered the probation report and that it intended to impose the midterm. Defense counsel referred to defendants letter wherein he claimed the sexual intercourse was consensual and submitted on the trial courts intended ruling and the Immigration and Naturalization Service hold. The prosecutor argued for the upper term, asserting that defendant had been disingenuous with the court. The prosecutor noted that defendant had never had a job and live[d] off [the] good graces [of elderly women].

The court denied probation and imposed the midterm. The court then stated the following: The Court will find defendant has no ability to pay discretionary fines and fees based on the sentence just imposed. The Court will order a restitution fine of $200. A restitution fine suspended of $200. Restitution to the victim . . . is reserved in an amount the Court will set or modify and or [sic] to the State Board of Control for restitution paid to the victims. [] He is to pay a court security fee of $20. . . . [] . . . [] [Defendant is] to pay a fine pursuant to Penal Code Section 290.3 in the total amount of $720. If the clerk would please on the abstract [of judgment] break out that amount as to the assessments pursuant to the break out in the probation officers report.

DISCUSSION

Initially, we consider the Attorney Generals assertion that defendants challenge to the imposition of the sex offender fine and assessments has been forfeited by his failure to timely object on the ground that he had no ability to pay. Defendant argues the issue is not forfeited because imposition of the fine was unauthorized in view of the trial courts finding of no ability to pay discretionary fines and fees and that a pure question of law is presented. In the alternative, defendant claims counsel rendered ineffective assistance in failing to object.

As defendant notes, he does not argue that the trial court failed to make or articulate its discretionary choice. The trial court imposed an unauthorized sentence in view of its finding of no ability to pay and as such, defendants claim is not forfeited. (People v. Scott (1994) 9 Cal.4th 331, 354.)

Even assuming the claim is forfeited for failure to object, we reach the merits because defendant has raised the alternative argument of ineffective assistance of counsel. Here, defense counsels performance was deficient in failing to object. We find no reasonable tactical basis for counsels failure to object to the fine, which was imposed after the courts express finding of no ability to pay. (See People v. Ledesma (2006) 39 Cal.4th 641, 745-746; People v. Pope (1979) 23 Cal.3d 412, 425-426.)

Section 290.3, subdivision (a) provides, in relevant part, as follows: Every person who is convicted of any offense specified in [former] subdivision (a) [now subd. (c)] of Section 290 shall . . . be punished by a fine . . . unless the court determines that the defendant does not have the ability to pay the fine. (Italics added.)

Sexual battery ( 243.4), to which defendant pleaded guilty, is listed in section 290, former subdivision (a) [now subd. (c)].

In People v. Burnett (2004) 116 Cal.App.4th 257, this court concluded that the sex offender fine was mandatory unless the court found no ability to pay and that on a silent record, the court was presumed to have made the requisite finding of no ability to pay. Under the statutory language of section 290.3, imposition of the fine is mandatory, unless the court determines that the defendant does not have the ability to pay the fine. This language certainly indicates that consideration of the defendants ability to pay is a factor to be considered in imposing the fine. (Id. at p. 261.) Burnett stated: Section 290.3 does not limit the evidence the trial court may consider in determining a defendants ability to pay the sex offender fine. Consequently, the trial court may consider all evidence relevant to ability to pay, including the amount of any fine or restitution ordered and the defendants potential future income. Following a consideration of the facts and after concluding the defendant does not have the ability to pay, the trial court may properly decline to impose the sex offender fine. There is no statutory requirement that the court state its findings on the record. (Ibid.)

Here, the trial court read and considered the probation report that reflected defendants lack of employment, and stated that it found that defendant had no ability to pay discretionary fines and fees based on the state prison sentence of three years. The court then proceeded to impose every one of the fines and fees listed in the probation report. Having found that defendant had no ability to pay, the trial court erred in imposing the sex offender fine. We will modify the judgment, striking the sex offender fine and assessments of $720. We also note that the abstract erroneously reflects the name of the victim of the sex crime.

DISPOSITION

The judgment is modified to strike the sex offender fine and assessments totaling $720. The trial court is directed to prepare an amended abstract of judgment accordingly, as well as deleting the name of the victim and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

BUTZ , J.

We concur:

RAYE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Undesignated statutory references are to the Penal Code.