People v. Valenzuela

Opinion

TURNER, P. J.

Defendant, Albert Joe Valenzuela, appeals from his no contest plea to the crimes of a lewd act upon a child (Pen. Code,

1

§ 288,

[1248]

subd. (a)), and failing to register as a sex offender (§ 290, subd. (b)). Defendant’s sole argument on appeal is that the trial court improperly imposed a $300 section 290.3, subdivision (a) fine. The Attorney General argues additional penalty assessments, a state surcharge, and a state court construction penalty should have been imposed. We affirm with modifications.

Defendant’s no contest plea was entered prior to the preliminary hearing and encompassed two counts in the felony complaint. Defendant pled no contest to the section 288, subdivision (a) lewd conduct charge in count 1. Further, defendant pled no contest to the charge in count 2 of failing to properly register as a sex offender in violation of section 290, subdivision (b).

We view the evidence in a light most favorable to the judgment.

(Jackson

v.

Virginia

(1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781];

People v. Elliot

(2005) 37 Cal.4th 453, 466 [35 Cal.Rptr.3d 759, 122 P.3d 968];

Taylor v. Stainer

(9th Cir. 1994) 31 F.3d 907, 908-909.) According to the probation report, in 2003, defendant, a registered sex offender, lived and worked at his sister’s in-home daycare and foster home in Azusa. The victim reported that defendant molested her nearly every day between May 30 and October 10, 2003, when she attended the daycare. During that time, the sex offender registration documents defendant provided to the Los Angeles Police Department falsely stated his residence address was in Canoga Park.

Defendant argues that the trial court improperly imposed a section 290.3, subdivision (a) fine in the amount of $300. At the time defendant’s sex offense occurred in 2003 and 2004, section 290.3, subdivision (a) stated, “Every person who is convicted of any offense specified in subdivision (a) 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 two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (Stats. 1995, ch. 91, § 121, p. 346.) In 2006, the Legislature amended section 290.3, subdivision (a) to require the imposition of a $300 fine following the first conviction. (Stats. 2006, ch. 337, § 18, eff. Sept. 20, 2006; see