Filed 12/11/15 P. v. Pena 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E061908
v. (Super.Ct.No. RIF1400813)
THOMAS PACHECO PENA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed with directions.
Doris M. LeRoy, 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, Barry Carlton and Adrianne S.
Denault, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted defendant and appellant Thomas Pacheco Pena of three counts of
engaging in sexual intercourse with a child under the age of 10 (Pen. Code1 § 288.7,
subd. (a), counts 1-3); three counts of engaging in oral copulation or sexual penetration
with a child under the age of 10 (id., subd. (b), counts 4-6); and one count of possessing
child pornography (§ 311.11, subd. (a), count 7.)
The trial court sentenced defendant to an indeterminate term of 122 years to life:
25 years to life on each of counts 1 through 3; 15 years to life on each of counts 4 through
6; and two years on count 7, all to run consecutively.
On appeal, defendant argues only that the trial court was not authorized to impose
a $500 fine pursuant to section 288, subdivision (e). We agree, and we order the trial
court to strike the fine.
FACTUAL AND PROCEDURAL BACKGROUND
The substance of defendant’s appeal does not require us to review the underlying
facts. It suffices to say that defendant, who was around 52 years old, videotaped himself
engaging in sexual intercourse, receptive and insertive oral copulation, and digital
penetration with his five-year-old niece.
At sentencing, the trial court imposed a $500 fine, payable to the division of adult
institutions pursuant to section 288, subdivision (e). Defendant did not object.
1 All further statutory references are to the Penal Code unless otherwise noted.
2
DISCUSSION
“Upon the conviction of any person for a violation of subdivision (a) or (b), the
court may, in addition to any other penalty or fine imposed, order the defendant to pay an
additional fine not to exceed ten thousand dollars ($10,000).” (§ 288, subd. (e).) It is
axiomatic that a court is bound to apply clear, unambiguous statutory language according
to its terms. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1154.) A court acts outside its
jurisdiction by imposing a statutorily unauthorized fine, and such error may always be
corrected on appeal, despite a defendant’s failure to object below. (People v. Allen
(2001) 88 Cal.App.4th 986, 998, fn. 27.)
Here, defendant was convicted under section 288.7, subdivisions (a) and (b), and
section 311.11, subdivision (a). It is clear that subdivision (e) of section 288 refers only
to convictions under subdivisions (a) and (b) of that same statutory section, namely,
section 288; subdivision (e) does not mention any fines related to the statutory sections
under which defendant was convicted, namely, sections 288.7 and 311.11. Defendant’s
failure to object at the time of sentencing does not hinder our ability to correct this
unauthorized fine.
The People concede the error and do not argue in opposition.
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DISPOSITION
The trial court is ordered to strike as unauthorized the $500 fine it purported to
impose on defendant pursuant to subdivision (e) of section 288. The trial court is
directed to amend the abstract of judgment accordingly and to forward a copy to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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