Opinion
A131423
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANDREA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lake County Super. Ct. No. CR923202
Defendant Michael Andrea appeals from a judgment of conviction imposing a $300 fine pursuant to Penal Code section 290.3 and ordering him to register pursuant to section 290. He contends that the fine and registration requirement were erroneously imposed because he was not convicted of an offense for which they are authorized. As the People concede, defendant's argument is well taken. We therefore order the section 290.3 fine and section 290 registration requirement stricken from the abstract of judgment.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2002, defendant was convicted of committing lewd acts on a child under the age of 14 years in violation of section 288, subdivision (a). He was sentenced to eight years in state prison, and ordered to register as a sex offender pursuant to section 290 and pay a $300 fine pursuant to section 290.3.
In August 2009, defendant was released from custody. He was rearrested, however, in August 2010, after he failed to register his wife's home as a secondary residence.
By information dated September 3, 2010, defendant was charged with failing to register a secondary residence (count I; section 290.010) and failing to notify the last registering agency of a change of address (count II; section 290.013, subd. (a)). The information also alleged that defendant had a prior strike and a prior prison term within the meaning of section 667.5, subdivision (b).
On October 20, 2010, pursuant to a negotiated disposition, defendant pleaded no contest to count I, in exchange for which count II and the special allegations were dismissed.
On February 22, 2011, defendant was sentenced to the upper term of three years in state prison. Consistent with a recommendation by the probation department, the court also imposed a $300 fine pursuant to section 290.3 and ordered defendant to register pursuant to section 290.
This timely appeal followed.
DISCUSSION
Section 290.3, pursuant to which the court imposed the $300 fine, provides in pertinent part that "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 commission 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 . . . ." (§ 290.3, subd. (a).) Section 290.010, the offense of which defendant was convicted, is not one of the offenses specified in section 290, subdivision (c). The fine was thus unauthorized.
Similarly, registration pursuant to section 290 is required of those individuals convicted of an offense specified in section 290, subdivision (c). Again, section 290.010 is not one of the enumerated offenses. The registration order was thus unauthorized. (See In re Bernardino S. (1992) 4 Cal.App.4th 613, 620.)
As defendant rightly acknowledges, this in no way abrogates his obligation to comply with the section 290 registration requirements arising from his prior conviction for violation of section 288.
DISPOSITION
The $300 fine imposed pursuant to section 290.3 and the order requiring defendant to register pursuant to section 290 shall be stricken from the abstract of judgment.
Richman, J. We concur:
Kline, P.J.
Lambden, J.