Filed 7/30/14 P. v. Dorrough 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067238
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF267446)
                   v.

ALTON EUGENE DORROUGH,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
         Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Kane, J. and Detjen, J.
       Defendant Alton Eugene Dorrough was convicted by plea agreement of several
counts related to sexual abuse of a minor. On appeal, he contends a $1,000 restitution
fine imposed by the trial court was not applicable to his case. The People concede and
we agree. Accordingly, we will strike the fine.
                              PROCEDURAL SUMMARY
       On May 9, 2012, the Tulare County District Attorney charged defendant with
23 counts of various types of sexual abuse against a minor. He initially pled not guilty to
all counts. Then the prosecutor agreed to accept a plea deal of 25 years. Over the
prosecutor’s objection, however, the trial court reduced the offer to 20 years. Defendant
accepted the offer and pled no contest to all counts.
       About one month later, the prosecutor informed the court that because some of the
counts required consecutive terms, the 20-year sentence was not possible.
       Defendant withdrew his plea and accepted a new offer of 25 years, pleading no
contest to count 15 (Pen. Code, § 288, subd. (b)(1)),1 count 16 (§ 288, subd. (b)(1)),
count 17 (§ 288, subd. (a)), and a new count 24 (§ 288.3, subd. (a)). The court dismissed
the remaining counts. The court imposed various fines and fees, including a $1,000
restitution fine pursuant to section 294, subdivision (b).2
                                       DISCUSSION
       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

1      All statutory references are to the Penal Code.
2      The court stated: “Pursuant to Penal Code Section 294[, subdivision ](b),
[defendant is] ordered to pay $1,000. That’s to be collected by the Department of
Corrections who shall deposit such amounts as received into the California Children’s
Trust Fund for the purposes of child abuse … prevention.”



                                              2.
       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.”
       Under the final plea agreement, defendant was not convicted of any of the crimes
listed in section 294, subdivision (b). Therefore, as the parties agree, the restitution fine
imposed under that section must be stricken.
                                      DISPOSITION
       The $1,000 restitution fine imposed pursuant to section 294, subdivision (b) is
stricken. In all other respects, the judgment is affirmed. The superior court is directed to
prepare an amended abstract of judgment and forward certified copies to the appropriate
entities.




                                              3.
