Filed 7/31/13 P. v. Waters CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038708
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. C1066875, C1234642)

         v.

NEAL RAYMOND WATERS,

         Defendant and Appellant.



         Defendant Neal Raymond Waters pleaded no contest in Case No. C1234642 to
possession of child pornography. (Pen. Code, § 311.11, subd. (a).) 1 He also admitted
violating conditions of probation arising from a prior conviction (Case No. C1066875)
for failure to inform law enforcement of a new address as a sex offender. (§ 290.013,
subd. (a).) The trial court imposed a combined term of sixteen months in state prison and
terminated defendant’s probation. The court also struck several fees and fines after
finding defendant lacked the ability to pay. However, the court imposed a $500 fine
under section 290.3 in Case No. 1234642.
          On appeal, defendant contends trial counsel was ineffective for failing to object to
the $500 fine based on defendant’s inability to pay that fine. Alternately, he claims the
$500 fine should be reduced to $300 because the higher amount was unauthorized.

1
    All further statutory references are to the Penal Code.
       We reject defendant’s ineffective assistance of counsel claim. However, because
the amount of the fine was unauthorized, we reduce it to $300. As modified, the
judgment is affirmed.
                     FACTS AND PROCEDURAL BACKGROUND
       In June 2012, law enforcement conducted a probation search of defendant’s
residence and discovered child pornography on his computer. Defendant was charged by
felony complaint in Case No. 1234642 with possession of child pornography. He
pleaded no contest and received a combined sixteen-month prison sentence on the
pornography conviction and for his probation violation in Case No. C1066875 (his prior
case for failing to register as a sex offender). The trial court thereafter terminated his
probation. In addition, the trial court imposed a $500 fine under section 290.3 but waived
other discretionary fines based on defendant’s inability to pay.
                                       DISCUSSION
       I.     Ineffective Assistance of Counsel
       Defendant contends trial counsel rendered ineffective assistance of counsel by
failing to object to the imposition of the $500 fine, while the court waived other fees due
to his inability to pay. He argues that if counsel had objected, the trial court, having
found him unable to pay other fines, also would have found him unable to pay the $500
fine. Respondent argues that trial counsel made a tactical decision not to object to the
$500 fine under section 290.3 because defendant had the ability to pay all the fines—a
fact that would have been obvious if counsel had objected.
              A.     Standard of Review
       To prevail on a claim of ineffective assistance of counsel, defendant must show
that counsel’s performance was deficient, and that the deficient performance prejudiced
his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).)
Counsel’s performance is considered deficient when it falls below an objective standard
of reasonableness. (Id. at p. 688.) And the defense is prejudiced if there is a reasonable
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probability that the result would have been different. (People v. Mesa (2006) 144
Cal.App.4th 1000, 1007; see also Strickland, supra, 466 U.S. at p. 688.)
       A reviewing court must indulge a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” (Strickland, supra, 466
U.S. at p. 689.) “Tactical errors are generally not deemed reversible.” (People v. Hart
(1999) 20 Cal.4th 546, 623.) When the record sheds no light on why counsel acted or
failed to act in the manner challenged, the appellate court must reject the contention,
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” (Id. at pp. 623-624.)
              B.     Defense Counsel’s Performance Was Not Deficient
       Section 290.3 states that every person convicted of any offense specified in
subdivision (c) shall be punished by a fine, “unless the court determines that the
defendant does not have the ability to pay the fine.” (§ 290.3.) When a statute mandates
a fine but requires the court to consider the defendant’s ability to pay, the burden is on the
defendant to object or demand a hearing to determine the ability to pay. (People v.
McMahan (1992) 3 Cal.App.4th 740, 749.) Here, the court imposed a $500 fine and
defense counsel did not object.
       Trial counsel may have made a tactical decision not to object to the fine because
defendant could afford it. The record shows that defendant posted $15,000 bail after he
failed to register his new address as a sex offender, retained private counsel, paid for his
own electronic monitoring program, and earned $50,000 per year as a self-employed
photojournalist. Had counsel lodged an objection, the ensuing proceedings may have
revealed that defendant also had the ability to pay the discretionary fines the court had
waived. Defendant’s ability to pay also made it unlikely that counsel’s objection would
have succeeded. Therefore, defendant’s ineffective assistance of counsel claim fails.




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       II.    Whether the Fine Was Authorized
       Section 290.3 provides that “[e]very person who is convicted of any offense
specified in subdivision (c) of Section 290 shall [. . .] 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.” (§ 290.3.) Defendant argues, and
respondent concedes, that the court was not authorized to impose a fine of $500 because
defendant had not been convicted of a second or subsequent offense listed in subdivision
(c).
       We agree. Under section 290.3, the fine cannot exceed $300 because defendant
had only one conviction for an offense listed in subdivision (c). Defendant had a prior
conviction in Texas, but that offense does not qualify as a subsequent offense because
section 290.3 does not otherwise specify that out-of-state convictions qualify to increase
the amount of the fine. Furthermore, although defense counsel failed to object to the
amount of the fine below, the matter can still be raised on appeal because an unauthorized
sentence “constitutes a narrow exception to the general requirement that only those
claims properly raised and preserved by the parties are reviewable on appeal.” People v.
Scott (1994) 9 Cal. 4th 331, 354). A fine of $300 must be imposed because it is a
mandatory fee unless the defendant is unable to pay it. Since the record shows that
defendant can pay this fine, the judgment will be modified to reduce the fine to $300.




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                                    DISPOSITION
      The judgment is modified to reduce the $500 fine imposed under section 290.3 to
$300. As so modified, the judgment is affirmed.




                                 _______________________________
                                 Márquez, J.




      WE CONCUR:




      ______________________________
       Elia, Acting P. J.




      ____________________________________________
       Bamattre-Manoukian, J.




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