People v. Pena CA4/2

• Court: California Court of Appeal
• Decided: December 11, 2015
• Docket: E061908
• Status: Unpublished

Opinion

Filed 12/11/15 P. v. Pena CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E061908

v. (Super.Ct.No. RIF1400813)

THOMAS PACHECO PENA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.

Affirmed with directions.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S.

Denault, Deputy Attorneys General, for Plaintiff and Respondent.

1 A jury convicted defendant and appellant Thomas Pacheco Pena of three counts of

engaging in sexual intercourse with a child under the age of 10 (Pen. Code1 § 288.7,

subd. (a), counts 1-3); three counts of engaging in oral copulation or sexual penetration

with a child under the age of 10 (id., subd. (b), counts 4-6); and one count of possessing

child pornography (§ 311.11, subd. (a), count 7.)

The trial court sentenced defendant to an indeterminate term of 122 years to life:

25 years to life on each of counts 1 through 3; 15 years to life on each of counts 4 through

6; and two years on count 7, all to run consecutively.

On appeal, defendant argues only that the trial court was not authorized to impose

a $500 fine pursuant to section 288, subdivision (e). We agree, and we order the trial

court to strike the fine.

FACTUAL AND PROCEDURAL BACKGROUND

The substance of defendant’s appeal does not require us to review the underlying

facts. It suffices to say that defendant, who was around 52 years old, videotaped himself

engaging in sexual intercourse, receptive and insertive oral copulation, and digital

penetration with his five-year-old niece.

At sentencing, the trial court imposed a $500 fine, payable to the division of adult

institutions pursuant to section 288, subdivision (e). Defendant did not object.

1 All further statutory references are to the Penal Code unless otherwise noted.

2 DISCUSSION

“Upon the conviction of any person for a violation of subdivision (a) or (b), the

court may, in addition to any other penalty or fine imposed, order the defendant to pay an

additional fine not to exceed ten thousand dollars ($10,000).” (§ 288, subd. (e).) It is

axiomatic that a court is bound to apply clear, unambiguous statutory language according

to its terms. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1154.) A court acts outside its

jurisdiction by imposing a statutorily unauthorized fine, and such error may always be

corrected on appeal, despite a defendant’s failure to object below. (People v. Allen

(2001) 88 Cal.App.4th 986, 998, fn. 27.)

Here, defendant was convicted under section 288.7, subdivisions (a) and (b), and

section 311.11, subdivision (a). It is clear that subdivision (e) of section 288 refers only

to convictions under subdivisions (a) and (b) of that same statutory section, namely,

section 288; subdivision (e) does not mention any fines related to the statutory sections

under which defendant was convicted, namely, sections 288.7 and 311.11. Defendant’s

failure to object at the time of sentencing does not hinder our ability to correct this

unauthorized fine.

The People concede the error and do not argue in opposition.

3 DISPOSITION

The trial court is ordered to strike as unauthorized the $500 fine it purported to

impose on defendant pursuant to subdivision (e) of section 288. The trial court is

directed to amend the abstract of judgment accordingly and to forward a copy to the

Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

HOLLENHORST J.

McKINSTER J.