People v. Smith CA3

Filed 7/1/14 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

THE PEOPLE, C074762

Plaintiff and Respondent, (Super. Ct. No. F13000105)

v.

SAMSON JAMES SMITH,

Defendant and Appellant.

Defendant Samson James Smith pled no contest to continuous sexual abuse of a child under age 14. An allegation of substantial sexual conduct was dismissed. Defendant was sentenced to prison for 12 years and was ordered to pay a $280 restitution fine, a $280 restitution fine suspended unless parole is revoked, a $40 court operations fee, a $30 court facilities assessment, a $50 AIDS education fee, a $35 installment account/administration fee, and a $735 fine including penalty assessments and surcharges.

1

Defendant contends, and the People concede, the trial court erroneously imposed the $735 fine and penalty assessment and the $50 AIDS education fee. Defendant further contends the $280 restitution fines must be reduced to $200 and the $35 installment account fee must be stricken or reduced to $30. We modify the judgment. FACTS Between December 22, 2001, and November 21, 2005, defendant engaged in three or more acts of lewd and lascivious conduct upon a child under the age of 14 years. The offenses came to light several years later. The felony complaint was filed in March 2013. Defendant entered his plea in June 2013 and was sentenced in August 2013. DISCUSSION I Penal Code Section 672 Fine And Penalty Assessments Defendant contends, and the People concede, the trial court erred when it imposed a $735 fine, including penalty assessments, pursuant to Penal Code1 section 672. We accept the People’s concession. As the parties recognize, section 672 “was meant to provide a fine for offenses for which another statute did not impose a fine.” (People v. Breazell (2002) 104 Cal.App.4th 298, 304.) Defendant’s offense is not within this provision because section 290.3, subdivision (a) prescribes a fine for any offense specified in section 290, subdivision (c), including defendant’s violation of section 288.5. Thus, the $735 fine and penalty assessments are unauthorized and must be stricken. (E.g., People v. Andrade (2002) 100 Cal.App.4th 351, 354.) The trial court’s finding that defendant had no ability to pay a section 290.3 fine does not alter our conclusion.