Filed 5/2/18 P. v. Compton CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES ALBERT COMPTON,

Defendant and Appellant.

F076275

(Super. Ct. No. VCF346782)


OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Charles Albert Compton pled no contest to two counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). On appeal, he contends that the court erred in imposing a restitution fine pursuant to section 294, subdivision (b). We find merit to this contention and modify the judgment accordingly.
FACTS
Between May 12, 2012, and May 11, 2013, Compton molested his girlfriend’s 13-year-old niece.
On May 10, 2017, the Tulare County District Attorney filed an information charging Compton with two counts of lewd and lascivious conduct with a child under the age of 14.
On August 7, 2017, Compton entered his no contest plea to the two counts in exchange for a stipulated prison term of eight years.
On August 30, 2017, the court sentenced Compton to the stipulated eight-year prison term: the aggravated term of eight years on one conviction and a concurrent six-year term on the remaining conviction, with both terms to be served concurrently with a prison term Compton was already serving. In addition to imposing a restitution fine of $4,800 (§ 1202.4) and a parole revocation fine in the same amount, the court imposed a $1,000 restitution fine pursuant to section 294, subdivision (b).
DISCUSSION
Compton contends the court erred when it imposed a $1,000 restitution fine pursuant to section 294, subdivision (b), because that section does not apply to a violation of section 288, subdivision (b). Respondent concedes.
Section 294, subdivision (b) provides:
“Upon conviction of any person for a violation of Section 261, 264.1, 285, 286, 288a, or 289 where the violation is with a minor under the age of 14 years, the court may, in addition to any other penalty or restitution fine imposed, order the defendant to pay a restitution fine based on the defendant’s ability to pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the county children’s trust fund for the purpose of child abuse prevention.”
Compton was not convicted of an offense that is listed under section 294, subdivision (b). Thus, the court imposed an unauthorized sentence when it ordered him to pay $1,000 pursuant to subdivision (b) of that section.
DISPOSITION
The judgment is modified to strike the $1,000 fine the court imposed pursuant to section 294, subdivision (b). The trial court is directed to prepare an amended abstract of judgment that omits this fine and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.