Filed 5/15/18 P. v. Medina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

HORACIO TRIDADO MEDINA,

Defendant and Appellant.

F074082

(Super. Ct. No. CRL011262)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.
Benjamin Owens, 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, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Defendant Horacio Tridado Medina contends on appeal that the trial court erred in ordering him to register as a sex offender and pay an associated fine. The People concede and we agree. We reverse the registration order, strike the fine, and remand to the trial court.
BACKGROUND
On February 5, 2016, defendant was convicted by jury trial of use of a minor as an agent (Health & Saf. Code, § 11380, subd. (a); count 1) and unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c); count 3). The trial court found true allegations that defendant had suffered four prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)).
On June 9, 2016, at the sentencing hearing, the trial court granted defendant’s Romero motion and struck three of the prior conviction allegations, leaving one prior conviction allegation and two prior prison term allegations. The court sentenced defendant to 21 years four months in prison: on count 1, the upper term of nine years, doubled pursuant to the Three Strikes law, plus two one-year prior prison term enhancements; on count 3, eight consecutive months, doubled pursuant to the Three Strikes law. The court ordered defendant to register pursuant to section 290 and Health & Safety Code section 11590, and ordered him to pay $300 pursuant to section 290.3. The court stated:
“… He is to register—I am making that finding that he register under Section 290. And I have looked at and heard the evidence, obviously, in the case, and I am ordering him to register as a sex offender under that Penal Code section.”
The clerk asked the court if defendant needed “to pay the $300 fine pursuant to [section] 290.3.” The court stated:
“Yes. [¶] There’s a $300 fine under [section] 290 that you’re ordered to pay, and you’re also ordered to register as a drug offender.”
DISCUSSION
I. Registration
According to section 290, subdivision (c), the following persons are required to register as a sex offender:
“Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.”
A person convicted of having unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (a) is not included in this list. Accordingly, as the parties agree, defendant was not required to register pursuant to section 290.
We note that the trial court could have required, in its discretion, that defendant register as a sex offender pursuant to section 290.006. When ordering discretionary sex offender registration, “ ‘the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender.’ ” (People v. King (2007) 151 Cal.App.4th 1304, 1308.)
II. Fine
Section 290.3, subdivision (a) provides:
“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, unless the court determines that the defendant does not have the ability to pay the fine.”
Because defendant was not convicted of an offense specified in section 290, subdivision (c), he was not required to pay the fine pursuant to section 290.3.
DISPOSITION
The trial court’s order that defendant register as a sex offender pursuant to Penal Code section 290 is reversed. The $300 fine pursuant to Penal Code section 290.3 is stricken. The matter is remanded to the trial court to consider in its discretion whether defendant should be required to register pursuant to Penal Code section 290.006. In all other respects, the judgment is affirmed.