People v. Hernandez CA CA4/1

Filed 10/1/15 P. v. Hernandez CA CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067440

Plaintiff and Respondent,

v. (Super. Ct. No. SWF1103171)

THOMAS HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Mark A.

Mandio, Judge. Affirmed in part and reversed in part with directions.

Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Thomas Hernandez was convicted of four counts of child
molestation and sentenced to what is effectively lifetime imprisonment. The four charges

arose from defendant's molestation of two different victims (two charges per victim).

Because each victim alleged more than two incidents that could support the charges, the

trial court gave jurors a standard unanimity instruction, informing them they must either

find all of the allegations against defendant true, or they must reach a unanimous

agreement regarding which alleged acts supported each count against defendant.

Defendant argues this instruction and others did not adequately inform the jurors

that defendant could only be convicted on counts 1 and 2 for assaulting Jane Doe I and on

counts 3 and 4 for assaulting Jane Doe II. Defendant claims there is a reasonable

likelihood the jury convicted defendant on one or more counts for acts against the wrong

victim. Defendant also maintains the court failed to adequately respond to a question

from the jury regarding the unanimity instructions by simply referring the jury back to the

instructions the court had given.

Defendant also argues that an instruction that motive is not an element of the

charged offenses reduced the burden of proof against him because motive is identical to

the intent element of the charged offenses.

Lastly, defendant claims fines imposed against him violate the ex post facto

provisions of the federal and state Constitutions and are incorrectly calculated. We agree

with defendant that one of the fines imposed on defendant does violate the ex post facto

clause. However, as the People assert, the trial court also erred in failing to impose other

mandatory fines on defendant. Accordingly, we reverse and remand in part, with

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instructions to recalculate and impose the appropriate fines; in all other respects, we

affirm.

PROCEDURAL OVERVIEW

In early 2012, the Riverside County District Attorney charged defendant with five

counts of violating of Penal Code section 288, subdivision (a) in early December, 2012.1

The first two counts concerned lewd acts committed against Jane Doe I on or about the

year 1998. Counts 3 and 4 concerned lewd acts committed against Jane Doe II occurring

on or about the years 2000 through 2007. Count 5 charged a lewd act from 2005

committed against Jane Doe III. The court dismissed count 5 on the district attorney's

motion. The jury convicted defendant on all four remaining counts in late July 2013. In

early September 2013, the court sentenced defendant to 40 years plus 300 years to life.

FACTUAL OVERVIEW

In 1989, defendant pled guilty to committing four acts of child molestation in

violation of section 288, subdivision (a). Defendant remarried in 1996 and moved into a

home in Lake Elsinore, California with his wife B. Hernandez (B.H.) sometime in 1998

or 1999.

Jane Doe I (JD1) is B.H.'s niece (defendant's niece by marriage) and was born in

1992. During the 1990's, JD1 lived in Lake Elsinore and frequently visited defendant's

residence. The first incident of sexual molestation involving JD1 occurred when she was

approximately six years old. Defendant had an inflatable swimming pool that JD1

1 All further references to code sections are to the Penal Code unless otherwise
noted.
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frequently enjoyed. One day, defendant took JD1 into a backyard shed after she was

done swimming. Even though JD1 was old enough to dry herself off with a towel,

defendant insisted he had to dry her off himself and had her disrobe in the shed. While

drying her off with the towel, defendant began rubbing JD1's genitalia. JD1 tried pushing

his hand away, but defendant resumed touching her genitalia. Defendant rubbed JD1's

genital area for approximately one minute before penetrating her vagina with one of his

fingers. JD1 screamed, and defendant left the shed as JD1's older sister came over to see

what was happening. JD1's sister told JD1 not to tell anyone, and JD1 complied by not

telling any adults about what happened that day. This incident was one of three or four

virtually identical incidents that occurred over the course of the summer of 1998.

Another incident of sexual molestation occurred during the following school year.

JD1 was asleep on a couch at defendant's home when she was awakened to defendant

rubbing her buttocks through her clothing. JD1 sat up and defendant continued to touch

her, putting his hand on her thigh. Defendant stopped touching JD1 when he heard B.H.

entering the room. Sometime around 1998 or 1999, JD1 was separated from her parents

and stopped seeing defendant.

Jane Doe II (JD2) was born in 1995 and was 18 years old at the time of

defendant's trial. She is B.H.'s granddaughter (defendant's step-granddaughter). JD2

moved from Fresno to Lake Elsinore with her family sometime around the year 2000.

JD2 was approximately five or six years old at that time.

Sometime in 2000 or 2001, JD2 spent the night at defendant's house. JD2 went to

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sleep on a couch and awoke to defendant entering the room. JD2 was lying face down on

the couch and wearing a shirt and overalls. Defendant undid the straps on JD2's overalls

and pulled them and her underwear down, exposing her buttocks. JD2 was frightened

and did not understand what was going on or what to do; in response to defendant

touching her, every muscle in her body tensed up and she lay motionless on the couch.

Defendant touched JD2 with his fingers and then placed his penis on top of her buttocks.

After some time passed, defendant removed his penis, patted JD2 on the back and put her

clothes back on. JD2 did not tell her mother or anyone else about the molestation

because she did not know what happened and did not want to get in trouble.

Another incident occurred when JD2 was in third or fourth grade. JD2 was riding

her tricycle outside defendant's home when he picked her up and began repeatedly

kissing her on her mouth while she squirmed and tried to push him away. After a few

minutes, JD2 managed to get free from defendant and ran into the house. A third incident

occurred during a family gathering at defendant's home while JD2 was in fifth or sixth

grade. JD2 was alone in defendant's kitchen retrieving something from the refrigerator.

Defendant came up behind JD2, put his arms around her, and put his hand down her

pants. JD2 felt defendant's hand touch her as he moved up her thigh and towards her

genitalia. JD2 moved away from defendant and exited the room. As she left, defendant

stated, " 'You know it feels good.' "

JD2 finally disclosed the molestations in 2007, when she was 11 or 12 years old

and still in fifth or sixth grade. JD2's parents had gone to a wedding and left JD2 in the

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care of Suzanne Youngquist (Youngquist), a friend of JD2's mother and B.H.. JD2 was

watching television with Youngquist's children when an episode of "America's Most

Wanted" about child sex abuse aired. JD2 became visibly upset during the broadcast and

disclosed the abuse after some questioning from Youngquist. Youngquist called the

police, and JD2 was interviewed by police officers. B.H. did not believe JD2's

accusations and was angry with Youngquist for contacting the police. JD2's parents also

appeared to disbelieve the allegations. During a meeting between B.H., Youngquist, and

D.M. (JD2's mother), D.M. told JD2 she started all this and to "shut the fuck up." The

friendship between Youngquist and JD2's family ended over the course of the following

days. A police report filed in 2007 stated that JD2's family was uncooperative with the

police investigation. No charges were brought against defendant in 2007.

In 2007, JD1 disclosed to a counselor at juvenile hall that defendant had sexually

molested her but no action was taken. In 2009, JD1 saw defendant again at Thanksgiving

dinner with her mother's side of the family. By that time JD1 had turned 16. At the

dinner, defendant hugged JD1, groped her breasts, and attempted to kiss her as she

pushed him away. In 2011, JD1 contacted the Riverside County Sheriff's Department

about the molestations. JD1 was spurred into action by a telephone conversation she had

with a cousin. Because they were hearsay, the specifics of the conversation were not

introduced at trial, nevertheless, JD1 testified she realized after the conversation that she

"wasn't alone." The Riverside County Sheriff's Department reopened the investigation of

defendant and arrested him soon after.

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 At trial, the prosecution presented testimony regarding prior sexual offenses

committed by defendant. Jane Doe IV (JD4) was defendant's niece by marriage and lived

in the same Los Angeles County neighborhood as defendant during the 1980's. She

testified at trial regarding sexual assaults that supported the charges defendant pled guilty

to in 1989. JD4 testified that sometime around 1986, she was sleeping face down on

defendant's couch, when she awoke to defendant removing her pants and underwear. He

then sodomized her by inserting his penis into her anus. In total, defendant sodomized

JD4 25 to 30 times between 1986 and 1988 or 1989 when JD4 finally disclosed the

sexual abuse to her mother. JD4 was eight or nine years old when defendant pled guilty.

Defendant's daughter, Jane Doe V (JD5) also testified at trial regarding uncharged

sexual assaults that occurred in the 1980's while she was living with defendant in Los

Angeles County. When JD5 was eight or nine years old, defendant got on top of her and

put his penis between her legs, rubbing his penis against her outer genitalia and buttocks

until he ejaculated. Defendant abused JD5 in this manner several times between

approximately 1980 and 1985. When she was about 11 years old, JD5 disclosed the

abuse to her mother, but her mother did not believe her. At age 13 or 14, JD5 and

defendant got into a physical altercation, which brought an end to defendant's abuse. JD5

was unaware of the abuse of JD4 or of defendant going to prison for sexual abuse until

about 1999 or 2000. JD4 and JD5 did not know JD1, JD2, or Jane Doe III.

The defense called as witnesses B.H. and her daughter D. Interiano, who had lived

with her and defendant. B.H. testified she was aware of defendant's criminal history

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when she married him but believed he was a changed man. B.H. and Interiano

contradicted aspects of JD1's story; they stated that defendant was rarely home during the

day, that children were never dried off in the shed and that the shed had no room inside it

for defendant and JD1 to maneuver around.

B.H. also essentially claimed that Youngquist fabricated the story of JD2 being

molested by defendant. She claimed that the real reason JD2 became upset at

Youngquist's home was because Youngquist made JD2 eat some food that caused her to

become ill. According to B.H., Youngquist's daughter talked to JD2 about how she had

been sexually molested and this conversation inspired in JD2 the notion that she too had

been molested. B.H. maintained that at a meeting between JD2, B.H., JD2's parents, and

Youngquist, Youngquist interrupted JD2 to add details to JD2's story. B.H. also claimed

that JD2 denied telling Youngquist that defendant touched her with his penis while

Youngquist insisted that JD2 told her that.

Interiano testified that she had been molested as a child, and, based upon that

experience, she believed JD2 was lying because JD2's demeanor and behavior did not

change in response to the molestations. B.H. acknowledged being aware of allegations

raised by JD1, JD2, and Jane Doe III (another granddaughter of B.H. who accused

defendant of molesting her, but who did not testify at trial), but insisted all of these

claims were fabricated. During closing arguments, defense counsel argued that

Youngquist and JD2 likely discovered that defendant was a sex offender on the Megan's

Law website and implied that Youngquist, JD1, JD2, JD4, and JD5 had conspired to

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frame defendant.

ANALYSIS

A. Instructions on Unanimity and Response to Jury Questions

1. Relevant Facts

The trial court, without objection from defense counsel, gave the jury adapted

versions of CALCRIM instruction Nos. 207 (Proof Need Not Show Actual Date) and

3501 (Unanimity: When Generic Testimony of Offense Presented). The version of

CALCRIM No. 207 the trial court provided stated: "It is alleged in Counts 1 and 2 that

the crimes against Jane Doe 1 occurred on or about the year 1998 and in Counts 3 and 4

that the crimes against Jane Doe 2 occurred on or about the year 2000 through the year

2007. The People are not required to prove that the crime took place exactly at those

times but only that it happened reasonably close to those times." The version of

CALCRIM No. 3501 the trial court provided stated: "The defendant is charged with

committing a lewd or lascivious act on a child under 14 years of age in Counts 1 and 2

sometime during 1998 and in Counts 3 and 4 sometime in the period between the year

2000 through and including the year 2007. [¶] The People have presented evidence of

more than one act to prove that the defendant committed these offenses. You must not

find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the

defendant committed at least one of these acts and you all agree on which act he

committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that

the defendant committed all the acts alleged to have occurred during this time period and

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have proved that the defendant committed at least the number of offenses charged."

During deliberation, the jurors requested "[c]larification of each count [sic] as

applied to each vict[i]m." After consulting with counsel, the trial court decided the best

way to answer the question would be to direct the jurors to read CALCRIM Nos. 207 and

3501. Defense counsel proposed including a sentence in the answer directing the jury to

ask a more specific question if the instructions did not satisfactorily answer their

question. The trial court decided not to include this language because the court did not

believe the jury needed any prompting to ask more questions.

2. Discussion

Section 1259 permits review of an instructional error that adversely impacts a

defendant's constitutional rights, even if the defendant does not object at trial. (People v.

Smith (1992) 9 Cal.App.4th 196, 207, fn. 20.) However, no review is required if a jury is

unlikely to understand the disputed instruction in the manner defendant claims produced

a violation of his substantial rights. (People v. Milosavljevic (2010) 183 Cal.App.4th

640, 648.) " ' "[T]he correctness of jury instructions is to be determined from the entire

charge of the court, not from a consideration of parts of an instruction or from a particular

instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) " ' "The absence

of an essential element in one instruction may be supplied by another or cured in light of

the instructions as a whole." ' " (Ibid.) "We assume the jurors are intelligent persons

capable of understanding and correlating all jury instructions given them." (People v.

Milosavljevic, supra, at p. 649.)

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 "The court is under a general obligation to 'clear up any instructional confusion

expressed by the jury,' but '[w]here . . . the original instructions are themselves full and

complete, the court has discretion . . . to determine what additional explanations are

sufficient to satisfy the jury's request for information.' " (People v. Dykes (2009) 46

Cal.4th 731, 802.) "When the trial court responds to a question from a deliberating jury

with a generally correct and pertinent statement of the law, a party who believes the

court's response should be modified or clarified must make a contemporaneous request to

that effect; failure to object to the trial court's wording or to request clarification results in

forfeiture of the claim on appeal." (Ibid.)

The CALCRIM No. 207 instruction plainly states that counts 1 and 2 pertain to

crimes committed against JD1 sometime around 1998 and that counts 3 and 4 concern

crimes committed against JD2 sometime between 2000 and 2007. The CALCRIM No.

3501 instruction states that counts 1 and 2 pertain to crimes committed in 1998 and

counts 3 and 4 pertain to crimes committed between 2000 and 2007. Read together, these

instructions leave no ambiguity as to which charges pertain to each victim and what

evidence can support each charge.

Defendant nonetheless complains that a statement made by the prosecutor during

closing arguments likely created confusion among the jury and contributed to the alleged

inadequacy of the instructions. The prosecutor stated: "If they did four counts or more

than four counts, but only have four to choose from, we hold them accountable for Count

1, for Count 2, 3 and 4." Arguably, the prosecutor's statement was misleading in that it

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failed to impart to the jury that to find defendant guilty on all four counts the jury must

find not just that four of the alleged acts are true, but it also must find true at least two

acts pertaining to each victim.

Nevertheless, "arguments of counsel generally carry less weight with a jury than

do instructions from the court. The former are usually billed in advance to the jury as

matters of argument, not evidence . . . and are likely viewed as the statements of

advocates; the latter, we have often recognized, are viewed as definitive and binding

statements of the law." (Boyde v. California (1990) 494 U.S. 370, 384.) While the

prosecutor did a poor job of explaining how the requirement of unanimity would work in

the context of multiple victims, the actual instructions themselves are unambiguous.

With respect to the jury's question, we note again that it is presumed juries are

intelligent and are capable of reading instructions and correlating different instructions

together. (People v. Milosavljevic, supra, 183 Cal.App.4th at p. 649.) Referring the jury

to the combined set of instructions likely resolved any questions regarding which counts

pertained to which victim. Thus, the court's response was proper as the instructions

themselves fully explained to the jury which counts pertained to which victim.

In sum, in giving CALCRIM instruction Nos. 207 and 3501 the trial court

adequately advised the jury on unanimity and did not err in referring the jury to those

instructions in response to the jury's question.

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 B. Effect of Instructions on Motivation on Specific Intent Element of Charged

Offenses

1. Relevant Facts

The trial court also instructed the jury with CALCRIM No. 370: "The People are

not required to prove that the defendant had a motive to commit any of the crimes

charged. In reaching your verdict you may, however, consider whether the defendant had

a motive. [¶] Having a motive may be a factor tending to show that the defendant is

guilty. Not having a motive may be a factor tending to show the defendant is not guilty."

The court instructed the jury that to find defendant guilty of any of the four

charged counts, they must find: "1A. The defendant willfully touched any part of a

child's body either on the bare skin or through the clothing; [¶] 2. The defendant

committed the act with the intent of arousing, appealing to, or gratifying the lust,

passions, or sexual desires of himself or the child; [¶] AND [¶] 3. The child was under the

age of 14 years at the time of the act. The touching need not be done in a lewd or sexual

manner. [¶] Someone commits an act willfully when he or she does it willingly or on

purpose. It is not required that he or she intend to break the law, hurt someone else, or

gain any advantage. [¶] Actually arousing, appealing to, or gratifying the lust, passions,

or sexual desires of the perpetrator or the child is not required."

2. Legal Principles

Jury instructions violate the due process clause of the Fourteenth Amendment to

the United States Constitution if there is a "reasonable likelihood" the jury understood the

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instructions as lowering the burden of proof for conviction below the reasonable doubt

standard. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) In general, motive is not an element

of a crime. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1126 (Maurer).) However,

in People v Maurer, the Court of Appeal found that motive was an element of

misdemeanor child annoyance in violation of section 647.6. The jury instructions for

child annoyance stated that to find the defendant guilty, the jury must find that " '[s]uch

acts or conduct were motivated by an unnatural or abnormal sexual interest.' " (Id. at p.

1125, italics added.) The court found that "motive" and "motivated" meant the same

thing and that, therefore, a CALJIC No. 2.51 instruction (equivalent to the CALCRIM

No. 370 instruction given in this case) that motive was not an element of the charged

offense lowered the burden of proof required for conviction. (People v. Maurer, supra, at

pp. 1126-1127.) Some sentencing enhancements or special circumstances also may have

motive as an element. Special circumstance for murder for financial gain requires the

jury to find " '[t]he murder was intentional and carried out for financial gain.' " (People v.

Hamilton (1989) 48 Cal.3d 1142, 1178 ["Carried out 'for' financial gain implies

motive"].)

Subsequent cases concerning whether "motive" is synonymous with "intent" in

jury instructions have rejected such claims while distinguishing People v. Maurer. In

response to such an argument, our state high court stated that " 'Motive, intent, and

malice--contrary to defendant's assumption--are separate and disparate mental states. The

words are not synonyms. Their separate definitions were accurate and appropriate.'

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[Citation.] Motive describes the reason a person chooses to commit a crime. The reason,

however, is different from a required mental state such as intent or malice." (People v.

Hillhouse (2002) 27 Cal.4th 469, 504.) In later cases, the high court has reached the

same conclusion where defendants claim that an instruction on motive negated a specific

intent requirement for the charged offense. (People v. Cash (2002) 28 Cal.4th 703, 739

[motive not element of special circumstance charge of murder with intent to commit

robbery]; People v. Guerra (2006) 37 Cal.4th 1067, 1135 [motive not element of special

circumstance charge of murder with intent to commit rape]; People v. Wilson (2008) 43

Cal.4th 1, 21-22.) When "the instructions as a whole [do] not refer to motive and intent

interchangeably," there is "no reasonable likelihood that the jury understood those terms

to be synonymous." (People v. Guerra (2006) 37 Cal.4th 1067, 1135.)

The Court of Appeal rejected a similar argument claiming a CALCRIM No. 370

instruction lowered the burden of proof for both the substantive offense of criminal street

gang participation and gang-related sentence enhancements and special circumstances.

(People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140.) The court in discussing

the distinction between intent and motive stated: "[W]e could say that when A shot B, A

was motivated by a wish to kill B, which in turn was motivated by a desire to receive an

inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was

motivated by a plan to avoid the wrath of a creditor. . . . The jury instructions given here,

however, were well adapted to cope with the situation. By listing the various 'intents' the

prosecution was required to prove (the intent to kill, the intent to further gang activity),

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while also saying the prosecution did not have to prove a motive, the instructions told the

jury where to cut off the chain of reasons. This was done without saying anything that

would confuse a reasonable juror." (Id. at p. 1140.)

3. Analysis

Our state high court has clearly stated that intent and motive are distinct: intent is

the mental state required for the crime and motive is the reason a criminal chooses to

commit a crime. This may at times be a fine distinction, but it is a valid distinction

nonetheless. The instruction in this case required the jury to find defendant had the

mental state (intent) to sexually arouse or appeal to the sexual desires of himself or the

victims to convict; it did not require the jury to find underlying reasons (motive) behind

defendant's decision to act in this manner, such as a specific infatuation with the victims

or a general predilection towards pedophilia. This particular specific intent "is no more a

'motive' in legal terms than is any other specific intent. We do not call a premeditated

murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the

victim's death." (People v. Fuentes, supra, 171 Cal.App.4th at p. 1139.)

Defendant argues that the specific intent required for conviction of committing

lewd and lascivious acts belongs to a special category of offenses that require motive as

an element of the crime itself, akin to the murder for financial gain special circumstance.

We find this line of argument unconvincing.

The murder for financial gain special circumstance in almost every case will

require an evaluation of the murderer's finances and relationship with the victim,

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circumstances several steps removed from the murder itself and the intent to kill. In

contrast, a touching that has been charged as a lewd and lascivious act against a child will

typically be a touching that has an apparent sexual connotation that serves as

circumstantial evidence of intent (defendant's mental state at the time of the crime) even

if an alternative nonsexual explanation for the touching might exist. Evidence of motive

(a reason for the sexual touching that goes beyond the mere immediate mental intent

necessary for the crime) such as past sexual offenses that demonstrate pedophilic

tendencies can bolster the prosecution's case as to intent and may make a difference in the

jury's verdict, but motive is not an element of the crime itself.

Furthermore, the instructions given to the jury did not describe the specific intent

element as a motive or motivation, nor did they otherwise use intent and motivation

interchangeably. Therefore, there is no reasonable likelihood that the jury misapplied the

instructions in the manner defendant claims.

C. Imposition of Fines

At sentencing, the trial court imposed the following fines that are challenged by

defendant: (1) $1,800 payable to the Division of Adult Institutions pursuant to section

290.3; (2) a restitution fine of $280; and a parole revocation fine of $280, which was

stayed by the trial court. Defendant contends that all three fines violate the ex post facto

clause of the United States Constitution (art. I, § 9, cl. 3) because the fines were

calculated under the statutes as they existed in 2011 when defendant was sentenced and

not under the statutes that were in effect when defendant committed the offenses between

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1998 and 2007. Defendant also contends that the section 290.3 fine was miscalculated as

applying to four convictions rather than one.

The People concede that the section 290.3 fine violated the ex post facto clause

and should be recalculated but contend the trial court was correct to count each of the

four counts as four separate convictions for the purpose of calculating the fine. The

People also contend the trial court failed to impose other mandatory fines and fees and

request that we remand the case back to the trial court to determine which originally

omitted fines and fees apply to defendant and the appropriate amount of those fines and

fees.

1. Fine Imposed under Section 290.3

In 1995, our state Legislature adopted section 290.3, which imposed an additional

fine for persons convicted of sex offenses, including violations of section 288. The fine

was set at $200 for the first conviction and $300 for each subsequent conviction. (Stats.

1995, ch. 91, § 121.) Effective September 20, 2006, section 290.3 was amended to

increase the fine to $300 for the first conviction and $500 for each subsequent conviction.

(Stats. 2006, ch. 337, § 18.) Because section 290.3 fines are punitive, the ex post facto

clause applies to fines imposed under the statute. (People v. Voit (2011) 200 Cal.App.4th

1353, 1372; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248.)

Defendant was convicted of four violations of section 288 subdivision (a). The

$1,800 fine was presumably calculated at $300 for the first offense and $500 each for the

other three offenses. The first two counts against defendant are alleged to have occurred

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sometime around 1998. Counts 3 and 4 were for acts that occurred between 2000 and

2007. The three acts that could have supported those charges were: the touching of

defendant's penis against JD2's buttocks that occurred sometime in 2000 or 2001; the

forced kissing of JD2 that occurred sometime between 2001 and 2004; and an incident

that occurred between 2005 and 2007 where defendant put his hand down JD2's pants.

Because we have two counts and three acts that could each support a count of child

molestation, we cannot be certain as to which act pertains to which count. Even if we

could be certain as to which act pertains to which count, we cannot be certain beyond a

reasonable doubt that any of these acts occurred after the 2006 amendment to section

290.3 became effective in 2007. Therefore, imposing the fine as calculated under the

2006 amendment violates the ex post facto clause.

We now turn to the question of whether the court should have counted one or four

convictions for the purpose of calculating the fine for defendant. Defendant argues that

for the purposes of section 290.3, a conviction is a judgment and each count is simply

part of one judgment/conviction, not a separate conviction in and of itself. In support of

this contention, defendant cites the principle that when civil penalties are involved a

conviction means not just the verdict by the jury but also the judgment pronounced by the

court. (Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 418

(Younger).) Defendant urges that we ignore People v. O'Neal (2004) 122 Cal.App.4th

817 (O'Neal), which held that each count a defendant is found guilty of is a conviction

under section 290.3.

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 We find this argument unavailing as Younger and the line of cases it was citing

concerned whether penalties such as disbarment or disqualification from public office

could be imposed after the jury had rendered a verdict, but before final judgment was

pronounced by the court. (Younger, supra, 71 Cal.App.3d at pp. 414-422.) These cases

do not support defendant's contention that for purposes of assessing a fine under section

290.3, multiple counts would count as one conviction just because they each belong to a

single judgment.

As pointed out in O'Neal, treating every judgment as a single conviction

regardless of how many counts it contains would result in fines being imposed out of

proportion to the actual culpability of the offender. (O'Neal, supra, 122 Cal.App.4th at

p. 822.) In a case where a defendant sexually assaults multiple victims, the fine imposed

would be contingent upon whether prosecutors initiated a single proceeding against the

defendant or instituted separate proceedings for different victims. In the context of a

single proceeding, a defendant who is convicted of hundreds of counts of child

molestation would be assessed the same punitive fine as someone convicted of just one

count. Such results would be bizarre and unjust, and it is exceedingly unlikely the

Legislature intended such a result. The interpretation of section 290.3 adopted by the

court in O'Neal was correct, and defendant is liable for a section 290.3 fine on all four

counts.

2. Restitution and Parole Revocation Fines

Defendant contends that fines imposed upon him under sections 1202.4 and

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1202.45 also violate the ex post facto clause. Section 1202.4 mandates that a felon shall

pay a restitution fine of no less than $240 and no greater than $10,000. (§ 1202.4, subd.

(b)(1).) Section 1202.45 mandates that a parole revocation fine must match the

restitution fine. (§ 1202.45.) At the time defendant committed his crimes, the amount of

the restitution fine ranged from $200 to $10,000. (See People v. Souza (2012) 54 Cal.4th

90, 143 [explaining former § 1202.4].) Defendant impliedly assumes the court intended

to impose the minimum fine, but defendant points to nothing in the trial record to support

this notion. The fine imposed by the court was within the range authorized by statute at

the time defendant committed his crimes and, thus, no violation of the ex post facto

clause occurred.

3. Fines and Fees Not Imposed by Trial Court

The People contend the trial court failed to impose certain mandatory fines and

fees and request that we remand this case back to the trial court with an instruction to

hold a hearing regarding whether these fines and fees are applicable. Specifically, the

People request that the trial court consider imposing criminal justice administration and

booking fees pursuant to Government Code sections 29550.1 and 29550.2; a state penalty

assessment under Penal Code section 1464, subdivision (a); and a county penalty

assessment under Government Code section 76000, subdivision (a). The People also

point to some additional punitive fines that might be applicable to defendant that the

court failed to rule upon: a 20 percent state surcharge pursuant to Penal Code section

1465.7, subdivision (a), effective September 30, 2002; a 30 percent state courthouse

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construction penalty, pursuant to Government Code section 70372, effective January 1,

2003; a 10 percent penalty to implement DNA collection pursuant to Government Code

section 76104.6, subdivision (a)(1), effective November 3, 2004; and a 20 percent

additional penalty if authorized by the county board of supervisors for emergency

medical services, pursuant to Government Code section 76000.5, subdivision (a)(1),

effective January 1, 2007.

Defendant does not respond to this claim in his reply brief, but he does contend

that the case should be remanded back to trial court to determine his ability to pay any

newly assessed fees. (People v. McMahan (1992) 3 Cal.App.4th 740, 749; People v.

Burnett (2004) 116 Cal.App.4th 257, 261.)

"Section 1202.4, subdivision (a)(2) provides, 'Upon a person being convicted of

any crime in the State of California, the court shall order the defendant to pay a fine in

the form of a penalty assessment in accordance with Section 1464.' Section 1464,

subdivision (a) states in pertinent part, '[T]here shall be levied a state penalty, in an

amount equal to ten dollars ($ 10) for every ten dollars ($ 10) or fraction thereof, upon

every fine, penalty, or forfeiture imposed and collected by the courts for criminal

offenses . . . .' (Italics added.) Government Code section 76000, subdivision (a) provides

for an additional assessment as follows: 'In each county there shall be levied an

additional penalty of seven dollars ($ 7) for every ten dollars ($ 10) or fraction thereof

which shall be collected together with and in the same manner as the amounts established

by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and

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collected by the courts for criminal offenses . . . .' " (People v. Stewart (2004) 117

Cal.App.4th 907, 910.) "The trial court's failure to impose section 1464, subdivision (a)

and Government Code section 76000, subdivision (a) penalty assessments is a

jurisdictional error which can be corrected for the first time on direct appeal." (Ibid.)

"[T]here is no ability-to-pay proviso for the section 1464, subdivision (a) and

Government Code section 76000, subdivision (a) penalty assessments." (Id. at p. 911.)

Penalty assessments under Penal Code section 1464 do not apply to restitution fines or

"[a]ny penalty authorized by Chapter 12 (commencing with Section 76000) of Title 8 of

the Government Code." (Pen. Code, § 1464, subd. (a)(3).) Penalty assessments under

Government Code section 76000 are not assessed upon any fine imposed under Penal

Code section 1464 or restitution fines. (Gov. Code, § 76000, subd. (a)(3).)

Government Code section 29550.1 provides that "[a]ny city, special district,

school district, community college district, college, university, or other local arresting

agency whose officer or agent arrests a person is entitled to recover any criminal justice

administration fee imposed by a county from the arrested person if the person is

convicted of any criminal offense related to the arrest." (Gov. Code, § 29550.1.)

Government Code section 29550.2 provides that "[a]ny person booked into a county jail

pursuant to any arrest by any governmental entity not specified in section 29550 or

29550.1 is subject to a criminal justice administration fee for administration costs

incurred in conjunction with the arresting and booking if the person is convicted of any

criminal offense relating to the arrest and booking." (See People v. Rivera (1998) 65

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Cal.App.4th 705, 708.) The retroactive application of these fees does not violate the ex

post facto clause because the fine is based upon actual costs incurred by the government

in arresting and booking the defendant and thus is not punitive. (See People v. Batman

(2008) 159 Cal.App.4th 587, 591; People v. Rivera, supra, at pp. 707-712.) The

imposition of fees under Government Code section 29550.2 does require a finding by the

trial court that defendant is able to pay. (People v. Pacheco (2010) 187 Cal.App.4th

1392, 1400; Gov. Code, § 29550.2, subd. (a).) As defendant was arrested by the

Riverside County Sheriff's Department, Government Code section 29550.2 would apply.

We find the trial court erred in failing to apply mandatory penalty assessments

against defendant under Penal Code section 1464 and Government Code section 76000.

The court might also have erred in failing to impose a fee pursuant to Government Code

section 29550.2, though as the imposition of this fee requires an ability to pay by

defendant, the court may have simply exercised its discretion to not impose a fee

defendant could not pay. The record is unclear on this matter.

As to the other fines the People request, because these fines are punitive their

applicability depends on whether the court can determine beyond a reasonable doubt that

any of the offenses defendant was convicted of occurred after the fines became effective.

Otherwise, the imposition of these fines violates the ex post facto clause. (See People v.

Voit, supra, 200 Cal.App.4th at p. 1374.) Counts 1 and 2 occurred sometime in 1998, so

none of these punitive fines apply to fees collected on these counts. Counts 3 and 4

regarded crimes committed against JD2 between 2000 and 2007. There were three acts

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committed against JD2 that could support the two charges: one occurred in either 2000 or

2001 when she was five or six years old, and another occurred when JD2 was either in

second or third grade (assuming JD2 was in kindergarten or 1st grade in 2000 or 2001,

this act could have occurred anywhere between late 2001 and 2004). The final act

occurred sometime when JD2 was in fifth or sixth grade. JD2 testified that she was in

fifth or sixth grade when she revealed the molestations to Youngquist in 2007. Of the

additional punitive fines the People mention, the oldest is a surcharge pursuant to Penal

Code section 1465.7, subdivision (a), which became effective September 30, 2002. At

least one, perhaps two, of the acts against JD2 occurred before that date, and we cannot

be certain as to which (minimum of) two of the acts the jury found true. Thus, the fines

pursuant to Penal Code section 1465.7, subdivision (a) and Government Code sections

70372, 76000.5 subdivision (a)(1) and 76104.6, subdivision (a)(1) are inapplicable.

Because the trial court did not impose the Penal Code section 1464 and

Government Code section 76000 fines, its assessment of defendant's ability to pay the

Penal Code section 290.3 fine did not take into account these other mandatory fines.

Since the imposition of these fines increases the total amount of fines defendant is

expected to pay over that imposed at trial, on remand the trial court must make a

determination as to defendant's ability to pay. (People v. Valenzuela, supra, 172

Cal.App.4th at pp. 1249-1250.) We will also remand to the trial court the question of

whether defendant owes any fees to the County of Riverside as pursuant to Government

Code section 29550.2.

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 DISPOSITION

The judgment is reversed in part and remanded for the purpose of recalculating

and imposing fines under Penal Code sections 290.3 and 1464 and Government Code

sections 29550.2 and 76000, consistent with the views we have expressed. The trial court

is directed to correct the abstract of judgment to reflect the recalculated fines and to

forward a certified copy of the corrected abstract of judgment to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

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