Filed 2/2/16 P. v. Juarez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062145

v.                                                                       (Super.Ct.Nos. RIF1300523 &
                                                                                        RIF1301145)
RICARDO JUAREZ,
                                                                         OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Irma Asberry, Judge.

Affirmed as modified.

         Robert L.S. Angres, 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, Peter Quon, Jr. and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant Ricardo Juarez was sentenced to three years and eight months in prison

for possessing child pornography and committing lewd acts on a child under age 14.

Defendant challenges the $500 fine imposed under Penal Code section 2941 as

unauthorized. The People concede the point and this court agrees.

                                   FACTS AND PROCEDURE

       In 2012, defendant was found in possession of video recordings of him having

consensual sex with his younger sister a few years earlier. At the time the recordings

were made, defendant was about 17 years old and his sister was about 13.

       On May 1, 2014, a jury found defendant guilty of possessing child pornography

(§ 311.11, subd. (a)), but deadlocked on two counts of committing a lewd act on a child

under age 14 (§ 288, subd. (a)).

       On July 18, 2014, a second jury found defendant guilty of the two lewd act counts

and found true an allegation that defendant engaged in substantial sexual conduct with

the victim in both counts (§ 1203.066, subd. (a)(8)).

       On September 19, 2014, the trial court sentenced defendant to three years and

eight months in prison and imposed various fines, including “a restitution fine in the

amount of $500 to the Restitution Fund for Children’s Trust.”

       This appeal followed.




       1   All section references are to the Penal Code unless otherwise indicated.
                                         DISCUSSION

        Section 294, subdivision (a), authorizes a trial court to impose upon a defendant

 convicted of violating sections “273a, 273d, 288.5, 311.2, 311.3, or 647.6” a “restitution

 fine based on the defendant’s ability to pay not to exceed five thousand dollars ($5,000),

 upon a felony conviction . . . to be deposited in the Restitution Fund to be transferred to

 the county children’s trust fund for the purposes of child abuse prevention.” Subdivision

 (b) authorizes the imposition of this fine on defendants convicted of violating sections

 “261, 264.1, 285, 286, 288a, or 289” where the victim is under age 14 years.

        As stated above, defendant was convicted of violating sections 311.11 and 288,

 neither of which is listed in section 294. Thus, the $500 fine was improper and must be

 stricken.

                                        DISPOSITION

        The judgment is modified by striking the section 294 restitution fine imposed by the

trial court. As modified, the judgment is affirmed. The superior court clerk is directed to

issue an amended abstract of judgment and shall provide a copy to the parties and to the

Department of Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                        RAMIREZ
                                                                                            P. J.
       We concur:

       McKINSTER
                            J.

       MILLER
                            J.
