Filed 7/1/14 P. v. Smith CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----




THE PEOPLE,                                                                                  C074762

                   Plaintiff and Respondent,                                    (Super. Ct. No. F13000105)

         v.

SAMSON JAMES SMITH,

                   Defendant and Appellant.




         Defendant Samson James Smith pled no contest to continuous sexual abuse of a
child under age 14. An allegation of substantial sexual conduct was dismissed.
Defendant was sentenced to prison for 12 years and was ordered to pay a $280 restitution
fine, a $280 restitution fine suspended unless parole is revoked, a $40 court operations
fee, a $30 court facilities assessment, a $50 AIDS education fee, a $35 installment
account/administration fee, and a $735 fine including penalty assessments and
surcharges.



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        Defendant contends, and the People concede, the trial court erroneously imposed
the $735 fine and penalty assessment and the $50 AIDS education fee. Defendant further
contends the $280 restitution fines must be reduced to $200 and the $35 installment
account fee must be stricken or reduced to $30. We modify the judgment.
                                          FACTS
        Between December 22, 2001, and November 21, 2005, defendant engaged in three
or more acts of lewd and lascivious conduct upon a child under the age of 14 years.
        The offenses came to light several years later. The felony complaint was filed in
March 2013. Defendant entered his plea in June 2013 and was sentenced in August
2013.
                                      DISCUSSION
                                              I
                  Penal Code Section 672 Fine And Penalty Assessments
        Defendant contends, and the People concede, the trial court erred when it imposed
a $735 fine, including penalty assessments, pursuant to Penal Code1 section 672. We
accept the People’s concession.
        As the parties recognize, section 672 “was meant to provide a fine for offenses for
which another statute did not impose a fine.” (People v. Breazell (2002) 104 Cal.App.4th
298, 304.) Defendant’s offense is not within this provision because section 290.3,
subdivision (a) prescribes a fine for any offense specified in section 290, subdivision (c),
including defendant’s violation of section 288.5. Thus, the $735 fine and penalty
assessments are unauthorized and must be stricken. (E.g., People v. Andrade (2002)
100 Cal.App.4th 351, 354.) The trial court’s finding that defendant had no ability to pay
a section 290.3 fine does not alter our conclusion.




1       Undesignated statutory references are to the Penal Code.

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                                              II
                                 DNA Penalty Assessment
       Defendant contends in the alternative that, if the section 672 fine is not invalid in
its entirety, the $80 DNA penalty assessment upon that fine must be stricken because the
authorizing statute was enacted in 2006 following his commission of the offense between
December 2001, and November 2005. The People’s concession regarding the previous
argument renders the present contention moot.
                                             III
                                    AIDS Education Fee
       Defendant contends, and the People concede, the $50 AIDS education fee was
unauthorized and must be stricken. “Section 288.5 is not among the enumerated offenses
to which the AIDS education fee applies. [Citation.]” (People v. Ogg (2013)
219 Cal.App.4th 173, 186.) We accept the People’s concession and shall strike the
unauthorized fee. (People v. Andrade, supra, 100 Cal.App.4th at p. 354.)
                                             IV
                                      Restitution Fines
       Defendant contends the $280 restitution fine and $280 parole revocation
restitution fine must be modified to $200, which was the statutory minimum at the time
defendant committed his offenses. (See Stats. 2011, ch. 358, § 1 [increasing the
minimum fine over a period of years].) Defendant reasons that the fines are
“punishment” for purposes of the ex post facto clauses (e.g., People v. Hanson (2000)
23 Cal.4th 355, 360-361) and that the court, having elected in its discretion to impose
“minimum” restitution fines, could not impose $280 fines for an offense occurring
between 2001 and 2005 without violating ex post facto principles. The record does not
support defendant’s claim.
       Prior to 2011, former section 1202.4 mandated imposition of a restitution fine of
no less than $200 and no more than $10,000 on every person convicted of a felony unless

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the trial court found compelling and extraordinary reasons for not doing so. A fine in any
amount greater than the statutory minimum and up to the statutory maximum was within
the trial court’s discretion. (People v. Avila (2009) 46 Cal.4th 680, 729.)
       Thus, the trial court could have lawfully imposed $280 fines simply by exercising
its discretion in favor of fines that exceeded the statutory minimum. Express findings by
the court as to the factors bearing on the amount of the fine were not required. (People v.
Avila, supra, 46 Cal.4th at p. 729.) Because the $280 fines were authorized by statute,
defendant’s failure to object that the trial court misperceived the applicable statutory
minimum forfeits his claim on appeal. (Ibid; People v. Scott (1994) 9 Cal.4th 331, 354.)
                                              V
                                  Installment Account Fee
       Defendant contends the $35 installment account fee was unauthorized and must be
stricken or alternatively reduced to the statutory maximum of $30. We disagree.
       The probation report recommended a “$35 Installment account fee.” At
sentencing, the trial court orally imposed an “installment account fee” of $35. The $35
fee is referred to as an “administration fee” in the clerk’s minutes and on the abstract of
judgment.
       Section 1205, subdivision (e), provides in relevant part that “[t]he defendant shall
pay to the clerk of the court or the collecting agency a fee for the processing of
installment accounts. This fee shall equal the administrative and clerical costs, as
determined by the board of supervisors, or by the court, depending on which entity
administers the account.”
       Defendant claims section 1205, subdivision (e) “is inapplicable because there is no
indication that an installment plan was established.” But there is no indication that
defendant intended to, or had the ability to, pay all of his fines, fees and penalty
assessments immediately rather than over a period of time. Rather, as we have noted,
defendant’s counsel argued that he had no ability to pay a sex crime fine or a fee for the

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presentence probation report. Moreover, defendant filed a “Statement of Assets” form
indicating he had no employment, no income, no cash, no savings, and no assets other
than a boat he believes is in another person’s name. The trial court could infer from
defendant’s lack of current resources that he would be unable to meet his financial
obligations without an installment plan.
       Because the $35 fee is properly treated as an installment account fee, it is not
subject to section 1205, subdivision (e)’s limitation on fees for accounts that are not to be
paid in installments. The subdivision provides: “The defendant shall pay to the clerk of
the court or the collecting agency the fee established for the processing of the accounts
receivable that are not to be paid in installments. The fee shall equal the administrative
and clerical costs, as determined by the board of supervisors, or by the court, depending
on which entity administers the account, except that the fee shall not exceed thirty dollars
($30).” (Italics added.) Because defendant is properly subject to an installment account
fee, his contention that the $35 fee must be reduced to $30 has no merit.
                                      DISPOSITION
       The judgment is modified by striking the $735 fine and penalty assessments and
by striking the $50 AIDS education fee. As so modified, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment and to forward a
certified copy to the Department of Corrections and Rehabilitation.



                                                        ROBIE                  , J.
We concur:


      BLEASE                , Acting P. J.



      DUARTE                , J.


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