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People v. Springs

Court of Appeals of California, Third District, Butte.
Nov 4, 2003
No. C043231 (Cal. Ct. App. Nov. 4, 2003)

Opinion

C043231.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. DANIEL CURTIS SPRINGS, Defendant and Appellant.


Daniel Curtis Springs (defendant) appeals from a judgment of conviction imposing, inter alia, an aggregate $ 400 fine pursuant to Penal Code section 290.3, subdivision (a) (section 290.3(a)) based on his conviction of two counts of committing a lewd act upon a child (§ 288, subd. (a)) (section 288(a)). Defendant argues the fine violates the ex post facto provisions of the federal Constitution. For the reasons stated below, we shall conclude the fine was authorized under the facts of this case, and that defendant waived his claim of error by failing to object to the amount of the fine during sentencing.

Undesignated statutory references are to the Penal Code.

FACTUAL BACKGROUND

The complaint alleged the section 288(a) violations occurred between August 1, 1990, and July 1997. Defendant entered his plea of no contest to the section 288(a) violations prior to a preliminary hearing. At the change of plea hearing, defendant stipulated to a factual basis for the plea. Thus, there was no testimony regarding the precise dates when the offenses occurred.

The probation report, however, provides factual context. The report relates that the victim stated the molestations commenced in 1990, when she was seven years old, and continued until 2000, when she was 17 years old. The probation report recounted the victims account of molestations occurring in 1990, 1993, 1996, 1997, 1998, and 2000.

The probation report recommended the court assess a fine of $400 pursuant to section 290.3(a). Without objection from defendant, the court ordered defendant to pay the $400 fine pursuant to section 290.3(a) as set forth in the probation report. Neither the court nor the probation report specified how the section 290.3(a) fine had been calculated.

Although the court imposed the fine (as well as state and county penalty assessments) at the sentencing hearing, neither the sentencing minute order nor the abstract of judgment memorializes the courts ruling.

DISCUSSION

Section 290.3(a) provides in pertinent part: "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." As originally enacted in 1988, the fine for the first conviction was set at $100, with a $200 fine for each subsequent conviction. (Stats. 1988, ch. 1134, § 1, p. 3637.) In 1995, the fines were increased to their current level of $200 for the first conviction and $ 300 for each subsequent conviction. (Stats 1994, ch. 866, § 1, p. 4355; ch. 867, § 3.5; p. 4395.)

Even though the two counts alleging a violation of section 288(a) were brought and tried in the same action, each count constitutes a separate conviction for purposes of section 290.3(a). A contrary construction would require us to add the "brought and tried separately" concept utilized in the three strikes legislation. (§ 667, subd. (a)(1).) Had the Legislature intended section 290.3 to include such a requirement, it would have said so. (People v. Fuhrman (1997) 16 Cal.4th 930, 939; People v. Allison (1995) 41 Cal.App.4th 841, 844-845.) We also note that our interpretation of section 290.3(a) avoids the untenable anomaly of imposing a single fine on a defendant who is simultaneously prosecuted for a series of sexual offenses, while imposing multiple fines on another defendant who commits the same offenses but is subject to multiple prosecutions.

Defendant contends imposition of an aggregate $ 400 fine pursuant to section 290.3(a) constitutes an ex post facto violation because the conduct upon which his convictions were based may have predated the 1995 amendment of section 290.3(a). He asks us to reduce the aggregate fine to $300, consisting of a $100 fine for the first conviction, and a $200 fine for the second. We find this contention unpersuasive.

As defendant acknowledges, failure to object to imposition of a section 290.3(a) fine at sentencing waives the issue for appeal. (People v. McMahan (1992) 3 Cal.App.4th 740, 750; see People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).)

Defendant insists, however, that the instant section 290.3(a) fine was unauthorized, and thus may be raised for the first time on appeal. The People even note the $400 aggregate fine "does not appear to be consistent with either version of section 290.3." The record, though, reveals the parties are mistaken.

The People reason as follows: "Had the offenses occurred prior to the law change, the appropriate fine would have been $300 ($100 for the first offense and $200 for the second offense). (§290.3 (1994 version).) Had the offenses occurred after the law change, the appropriate fine would have been $ 500 ($200 for the first offense and $300 for the second offense). (§ 290.3.) However, in the present case, the court assessed a fine of $400. Should the court rule that [defendant] has not waived his argument, the matter of the fine should be remanded to the trial court for clarification."

In Scott, supra, the Supreme Court explained that "a sentence is generally `unauthorized where it could not lawfully be imposed under any circumstance in the particular case." (Scott, supra , 9 Cal.4th 331, 354.) In such circumstances, "[a]ppellate courts are willing to intervene in the first instance because such error is `clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.]" (Ibid.)

The complaint in the present case alleged the section 288(a) violations occurred between the years 1990 and 1997. Defendant stipulated to a factual basis for the plea. The probation report (to which defendant did not object) confirmed that the section 288(a) violations occurred both before and after the 1995 amendment to section 290.3(a). Thus, there was a factual basis for the probation department (and the superior court in turn) to conclude one of the violations occurred prior to 1995 and another violation occurred thereafter. The appropriate fine in such circumstances would be $400, consisting of $100 for the first offense (pre-1995) and a $300 fine for the second offense (post-1995). It follows that the $400 fine was authorized, and that the error of which defendant complains is illusory, since it depends on a factual scenario (both § 288(a) offenses occurring prior to 1995) that was not established in the superior court. Rather than a case of clear and correctable error, this is a case of no error at all. If defendant wished to argue to the contrary, he should have done so in the superior court. His failure to do so brings him squarely within the ambit of the waiver rule.

DISPOSITION

The judgment is affirmed. The court is directed to issue an amended sentencing minute order and abstract of judgment to reflect the imposition of the Penal Code section 290.3, subdivision (a) fines and applicable penalty assessments.

We concur: DAVIS, J. RAYE, J.


Summaries of

People v. Springs

Court of Appeals of California, Third District, Butte.
Nov 4, 2003
No. C043231 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Springs

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL CURTIS SPRINGS, Defendant…

Court:Court of Appeals of California, Third District, Butte.

Date published: Nov 4, 2003

Citations

No. C043231 (Cal. Ct. App. Nov. 4, 2003)