P. v. Waters CA6

Filed 7/31/13 P. v. Waters CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038708 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1066875, C1234642)

v.

NEAL RAYMOND WATERS,

Defendant and Appellant.

Defendant Neal Raymond Waters pleaded no contest in Case No. C1234642 to possession of child pornography. (Pen. Code, § 311.11, subd. (a).) 1 He also admitted violating conditions of probation arising from a prior conviction (Case No. C1066875) for failure to inform law enforcement of a new address as a sex offender. (§ 290.013, subd. (a).) The trial court imposed a combined term of sixteen months in state prison and terminated defendant’s probation. The court also struck several fees and fines after finding defendant lacked the ability to pay. However, the court imposed a $500 fine under section 290.3 in Case No. 1234642. On appeal, defendant contends trial counsel was ineffective for failing to object to the $500 fine based on defendant’s inability to pay that fine. Alternately, he claims the $500 fine should be reduced to $300 because the higher amount was unauthorized.

1 All further statutory references are to the Penal Code.

We reject defendant’s ineffective assistance of counsel claim. However, because the amount of the fine was unauthorized, we reduce it to $300. As modified, the judgment is affirmed. FACTS AND PROCEDURAL BACKGROUND In June 2012, law enforcement conducted a probation search of defendant’s residence and discovered child pornography on his computer. Defendant was charged by felony complaint in Case No. 1234642 with possession of child pornography. He pleaded no contest and received a combined sixteen-month prison sentence on the pornography conviction and for his probation violation in Case No. C1066875 (his prior case for failing to register as a sex offender). The trial court thereafter terminated his probation. In addition, the trial court imposed a $500 fine under section 290.3 but waived other discretionary fines based on defendant’s inability to pay. DISCUSSION I. Ineffective Assistance of Counsel Defendant contends trial counsel rendered ineffective assistance of counsel by failing to object to the imposition of the $500 fine, while the court waived other fees due to his inability to pay. He argues that if counsel had objected, the trial court, having found him unable to pay other fines, also would have found him unable to pay the $500 fine. Respondent argues that trial counsel made a tactical decision not to object to the $500 fine under section 290.3 because defendant had the ability to pay all the fines—a fact that would have been obvious if counsel had objected. A. Standard of Review To prevail on a claim of ineffective assistance of counsel, defendant must show that counsel’s performance was deficient, and that the deficient performance prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Counsel’s performance is considered deficient when it falls below an objective standard of reasonableness. (Id. at p. 688.) And the defense is prejudiced if there is a reasonable 2