Opinion · California Court of Appeal

People v. Walz

People v. Walz, 73 Cal. Rptr. 3d 494 (California Court of Appeal 2008)

Type
Opinion
Court
California Court of Appeal
Jurisdiction
California
Date
2008-03-14
Topic
litigation

*1367 Opinion MOSK, J. INTRODUCTION A jury convicted defendant and appellant Rondie Lamont Walz (defendant) of one count each of forcible rape (Pen. Code, § 261, subd. (a)(2)) 1 (count 1); forcible oral copulation (§ 288a, subd. (c)(2)) (count 2); sexual penetration by a foreign object (§ 289, subd.

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PEOPLE v. WALZ,160 Cal.App.4th 1364(2008)
73 Cal.Rptr.3d 494
THE PEOPLE, Plaintiff and Respondent, v. RONDIE LAMONT WALZ, Defendant
and Appellant.
No. B198077.
Court of Appeal of California, Second District.
March 14, 2008.
[CERTIFIED FOR PARTIAL PUBLICATIONfn*]


[EDITORS' NOTE: TEXT NOT CERTIFIED FOR PUBLICATION APPEARS WITH GRAY BACKGROUND BELOW.]
Appeal from the Superior Court of Los Angeles County, No. KA077269, Charles E. Horan, Judge.Page 1365
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1366
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.Page 1367
OPINION
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Rondie Lamont Walz (defendant) of one count each of forcible rape (Pen. Code, §261, subd. (a)(2))1(count 1); forcible oral copulation (§ 288a, subd. (c)(2)) (count 2); sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 3); and misdemeanor battery (§§ 242, 243, subd. (a)) (count 5). The trial court granted defendant's motion for a judgment of acquittal (§ 1118.1) on a charge of kidnapping to commit rape (§ 209, subd. (b)(1)), and the jury found the burglary allegations not true with respect to counts 1, 2, and 3.

The trial court sentenced defendant to 18 years in state prison, consisting of the middle term of six years on count 1, and full consecutive six-year middle terms on counts 2 and 3 pursuant to section 667.6, subdivision (c). The trial court sentenced defendant to a concurrent term of 180 days on count 5. The trial court awarded defendant 124 days of presentence credit, consisting of 108 days of actual custody and 16 days of conduct credit.2The trial court imposed a $2003sex offender fine (§ 290.3); a $200 restitution fine (§ 1202.4); a $200 parole restitution fine, stayed (§ 1202.45); and a $20 court security fee (§ 1465.8, subd. (a)(1)).

Defendant argues on appeal that the trial court erred by imposing full consecutive prison terms on counts 2 and 3. The People contend that the trial court erred in calculating the fines and assessments it imposed and by failing to impose additional mandatory fines, assessments, and surcharges. We vacate the $200 sex offender fine and remand for the trial court to determine whether to impose a $300 sex offender fine as prescribed in section 290.3,Page 1368subdivision (a) and to impose additional mandatory assessments and surcharges. In all other respects, we affirm the judgment.
BACKGROUNDfn*
A. The Prosecution Case On November 27, 2006, defendant came to the front door of the San Pedro residence of Jane Doe Number Two and solicited her to purchase a magazine subscription. Jane Doe Number Two agreed to purchase a subscription and went into her house to get her checkbook. Defendant followed her into the house without her permission. Defendant told Jane Doe Number Two that he had "a lot of sexual experience" and that she "should give him a chance." Jane Doe Number Two told defendant to leave her home. Defendant grabbed her by the waist and attempted to kiss her. Jane Doe Number Two pushed defendant away; he fled and got into the passenger seat of a white van, which immediately left the area. The next day, defendant came to the front door of the Riverside County home of Marisol Lopez and solicited her to purchase a newspaper or magazine subscription. Ms. Lopez told defendant she was not interested. When Ms. Lopez tried to shut her front door, defendant put his foot inside the door to prevent her from closing it. Ms. Lopez began calling her husband's name. Defendant fled. Four days later, on December 2, 2006, defendant came to the front door of Jane Doe Number One in Claremont. He solicited her to purchase a magazine subscription. Jane Doe Number One told defendant she was "not sure" if she wanted to buy a subscription, but agreed to let defendant take down her personal information to see if she could refer other prospective purchasers. Jane Doe Number One let defendant inside her house so he could write down the information. Defendant told Jane Doe Number One that she was beautiful and asked if she had a boyfriend. Defendant grabbed Jane Doe Number One by the arm and forced her into the living room; she tried to pull away and told defendant "[n]o" repeatedly. Defendant forced Jane Doe Number One onto the couch and penetrated her vagina digitally and with his penis. He removed her shorts and underwear and orally copulated her, then penetrated her a second time digitally and with his penis. Defendant left Jane Doe Number One's residence. Jane Doe Number One called a friend and told her what had happened; her friend contacted the police. Sometime after defendant's attack on Jane Doe Number One, both Jane Doe Number Two and Ms. Lopez saw defendant's photograph on television and contacted police. B. The Defense Case Defendant testified on his own behalf. He testified that he had worked for two years as an itinerant salesperson selling magazine subscriptions. He denied going to the home of Ms. Lopez. He admitted to selling Jane Doe Number Two a magazine subscription; he testified that she invited him into her home and denied assaulting her. Defendant also admitted he had gone to Jane Doe Number One's home; he testified that his sexual contact with her was consensual.
DISCUSSION
A. Full Consecutive Sentences Pursuant to Section 667.6, Subdivision (c)[fn*]
Defendant challenges the trial court's decision to impose full consecutive sentences on counts 2 and 3 pursuant to section 667.6, subdivision (c). That provision gives the trial court discretion to impose full-term consecutive sentences — rather than consecutive subordinate terms of one-third the middle term pursuant to section 1170.1 — when a defendant is convicted of specified violent sex offenses.4(§ 667.6, subd. (c); California Rules of Court, rule 4.426(b);5People v. Belmontes(1983)34 Cal.3d 335,345(Belmontes).) "In deciding whether to sentence consecutively or concurrently, and if consecutively, whether to do so under section 1170.1 or under the harsher full term provisions of subdivision (c) of section 667.6, the court is obviously making separate and distinct decisions. A decision to sentence under section 667.6, subdivision (c) is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively." (Belmontes, supra,34 Cal.3d at p. 347, fn. omitted.) "The ideal method of proceeding would be for the trial court first to decide generally between concurrent and consecutive terms, following the criteria listed in [former] rule 425 [now rule 4.425]. Once the court has decided to sentence a defendant to consecutive terms and has stated its reasons therefor, it then must decide whether the consecutive terms should be under the principal/subordinate scheme of section 1170.1 or under the full and separate term scheme of section 667.6, subdivision (c). If the latter is chosen, the reasons therefor should be stated for the record." (Id.at p. 348.) "The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c)." (Ibid., fn. omitted.)1. Abuse of DiscretionDefendant does not contend that the trial court failed to state its reasons for imposing full consecutive sentences in accordance withBelmontes, supra,34 Cal.3d at pp. 348-349. Instead, defendant argues that the reasons given by the trial court were inadequate. Defendant points out that he was a first-time sex offender, had only one prior conviction for misdemeanor petty theft, and "there was no threats [sic], harm or violence used" when he raped Jane Doe Number One and battered Jane Doe Number Two. "The decision to sentence a defendant under section 667.6, subdivision (c) rather than section 1170.1 is essentially a decision concerning consecutive sentencing, and the factors listed in [rule 4.425] are relevant to it." (Belmontes, supra,34 Cal.3d at pp. 346-347.) "The sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule 4.408." (Rule 4.426(b).) Any one aggravating factor is sufficient to support the trial court's decision to impose full consecutive sentences. (People v. Davis(1995)10 Cal.4th 463,552;Belmontes, supra,34 Cal.3d at p. 348;People v. Huber(1986)181 Cal.App.3d 601,628.) "In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citations.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford(1976)17 Cal.3d 8, 20.) The trial court cited the following factors, among others, to justify its decision to impose full consecutive sentences: (1) the manner in which the crimes were committed indicated premeditation (rule 4.421(a)(8)); and (2) defendant had engaged in violent conduct that indicated that he is a danger to society (rule 4.421(b)(1)). Substantial evidence supports both of these conclusions. There was evidence of three separate incidents over the course of six days, in locations more than 50 miles apart. In each incident, defendant made uninvited and unwelcomed sexual advances toward a young woman whom he believed to be home alone. In each incident, defendant gained or attempted to gain entry to the woman's house, although doing so was unnecessary to his professed purpose of selling magazine subscriptions. One incident resulted in a sexually motivated battery of Jane Doe Number Two; another resulted in the forcible rape of, and other forcible sexual contact with, Jane Doe Number One. There was thus a pattern to defendant's conduct that supports the conclusions that his actions were premeditated, and that defendant is a sexual predator who has engaged in violent conduct and who presents a continuing danger to society. Valid aggravating factors thus support the trial court's decision to impose full consecutive sentences on counts 2 and 3. We reject defendant's characterization of his crimes as lacking "threats, harm or violence" — defendant was convicted by a jury of rape "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." (§ 261, subd. (a)(2)) and "oral copulation . . . accomplished . . . by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." (§ 288a, subd. (c)(2).) To the extent defendant argues that his lack of a significant criminal record militates against imposing full consecutive sentences, "[t]he process of weighing the relative merits of aggravating and mitigating factors is for the trial court; we do not substitute our judgment on such matters." (People v. Calderon(1993)20 Cal.App.4th 82,87, fn. omitted; seePeople v. Scott(1994)9 Cal.4th 331,355["The reviewing court cannot . . . reweigh valid factors bearing on the decision below"]; see alsoPeople v. Carmony(2004)33 Cal.4th 367,378.) The trial court did not abuse its discretion by sentencing defendant pursuant to section 667.6, subdivision (c).2.SixthAmendment IssueDefendant next contends that the imposition of full consecutive sentences pursuant to section 667.6, subdivision (c) violated his rights to a jury trial under theSixthandFourteenthAmendments to the United States Constitution, as applied in the United States Supreme Court's decision inCunningham v. California(2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Defendant concedes, however, that this argument is, in effect, foreclosed by the California Supreme Court's decision inPeoplev. Black(2007)41 Cal.4th 799(Black II). We agree thatBlack II, supra,41 Cal.4th 799controls here. InBlackII, our Supreme Court held that the imposition of consecutive sentences based on aggravating factors not found by a jury does not violate theSixthAmendment as interpreted inCunningham, supra, 549 U.S. ___ [127 S.Ct. 856] and its predecessor cases,Apprendi v. New Jersey(2000)530 U.S. 466andBlakely v. Washington(2004)542 U.S. 296. (Black II, supra,41 Cal.4th at pp. 820-823.) The court inBlack IIstated, "In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. [Citations.] Factual findings are not required. [] The high court's decision inCunninghamdoes not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a `sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense' and does not `implicate[] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.' [Citation.]" (BlackII, supra,41 Cal.4th at pp. 822-823.) We are bound by that holding. (People v. Birks(1998)19 Cal.4th 108,116, fn. 6;Auto Equity Sales,Inc. v. Superior Court(1962)57 Cal.2d 450,455.) Defendant was not denied his right to a jury trial.

B.Defendant's Fines

1.Sex Offender Fines Pursuant to Section 290.3

At the time defendant was sentenced, section 290.3 provided, in relevant part, "Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, 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, unless the court determines that the defendant does not have the ability to pay the fine." (Former § 290.3, subd. (a).)6Defendant suffered three convictions in this case that subject him to the imposition of sex offender fines. (See former § 290, subd. (a)(2)(A), now § 290, subd. (c).) The trial court orally imposed one sex offender fine of $200.Page 1369

The People argue that the trial court was required by former section 290.3, subdivision (a) to impose a fine of $300 for one of defendant's qualifying convictions and additional fines of $500 each for defendant's other two qualifying convictions. The People, however, did not object in the trial court to the trial court's imposition of one $200 fine, nor did they appeal the trial court's sentencing choice. Defendant contends that the People forfeited any error. Accordingly, we must first determine whether any error in imposing the $200 fine is cognizable on appeal. If the $200 fine constitutes an unauthorized sentence because it varies from the amount prescribed by the statute, the error is jurisdictional, and the issue may be raised for the first time on appeal. (People v.Barnwell(2007)41 Cal.4th 1038,1048, fn. 7 [63 Cal.Rptr.3d 82,162 P.3d 596];People v. Talibdeen(2002)27 Cal.4th 1151,1157[119 Cal.Rptr.2d 922,46 P.3d 388];People v. Smith(2001)24 Cal.4th 849,852[102 Cal.Rptr.2d 731,14 P.3d 942];People v. Stewart(2004)117 Cal.App.4th 907,910[12 Cal.Rptr.3d 171].) On the other hand, if the trial court had discretion under section 290.3, subdivision (a) to impose a fine of less than the statutorily prescribed amount based on a determination that the defendant did not have the ability to pay the full amount of the fine, then the error is not jurisdictional but instead involves a discretionary sentencing choice, and was therefore forfeited by the People's failure to object in the trial court. (People v. Tillman(2000)22 Cal.4th 300,301-302[92 Cal.Rptr.2d 741,992 P.2d 1109]; seePeople v. Smith, supra,24 Cal.4th at p. 852;People v. Martinez(1998)65 Cal.App.4th 1511,1518-1519[77 Cal.Rptr.2d 492].)

We conclude that the $200 fine imposed by the trial court was unauthorized. "[A] sentence is generally `unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott(1994)9 Cal.4th 331,354[36 Cal.Rptr.2d 627,885 P.2d 1040].) Section 290.3, subdivision (a) states that a defendant convicted of a qualifying sex offense "shall . . . be punished by a fineofthree hundred dollars ($300) upon the first conviction or a fineoffive hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.) The statute does not authorize a fine of $200, and the language of section 290.3, subdivision (a) is not amenable to an interpretation granting a trial court discretion to impose a fine oflessthan the prescribed amount if it determines that the defendant does not have the ability to pay the full amount of the fine.

When the Legislature has granted trial courts discretion to set the amount of a fine within a range, it has used language that so indicates. Section 672, for example, provides that "the court may impose a fine on the offenderPage 1370not exceedingone thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies. . . ." (Italics added.) Similarly, section 261.5, subdivision (e)(3); section 286, subdivision (m); and section 288a, subdivision (m) all provide that "the judge may assess a finenot to exceed'$70. (Italics added.) Sections 266, 270, and 270.6 all provide for "a finenot exceeding" $2,000; section 266k, subdivision (a) provides for "an additional finenot toexceed" $5,000; section 270.5 provides for "a fine ofnot more than" $500; section 284 provides for a "finenot less than" $5,000; section 288, subdivision (e) provides for "an additional finenot to exceed'$10,000; section 290.4, subdivision (c)(2) provides for "a fine ofnotless thanfive hundred dollars ($500)and not more thanone thousand dollars ($1,000)." (All italics added.) The Penal Code contains numerous other examples of fines to be set in the trial court's discretion, subject to a specified maximum or minimum or within a specified span. (See, e.g., §§ 347b, 350, 351a, 365.5, subd. (c), 374.3, subd. (e), 374.4, subd. (d), 382.5, 383, 399.5, 404.6, subd. (b), 420.1, 422.6, subd. (c), 422.7, 466.3, subd. (a), 484b, 496d, 499c, subd. (c), 502, subd. (d).)

Section 290.3, subdivision (a) contains no such permissive language. Accordingly, section 290.3, subdivision (a) requires the trial court to impose a fine of the prescribed amount, or to impose no fine at all if it determines that the defendant does not have the ability to pay the fine. The trial court thus must impose fines in the amount of $300 for the first qualifying conviction and $500 for additional qualifying convictions,7or no fine if the trial court determines that the defendant does not have the ability to pay the fine. Accordingly, the trial court in this case exceeded its jurisdiction by imposing a $200 fine.

When imposing the fine, the trial court simply stated, "There's a 290 fine in the amount of $200. Court will impose that." The trial court made no express determination that defendant did not have the ability to pay the fine, and the probation report made no recommendation with respect to a sex offender fine. The trial court's minute order and the abstract of judgment are inconsistent with the trial court's oral pronouncement and reflect a $300 fine. Accordingly, we remand the matter to the trial court for it to impose a sex offender fine of $300 for defendant's first qualifying conviction, or no fine if the trial court determines that defendant does not have the ability to pay thePage 1371fine. Defendant will have the burden of proving that he does not have the ability to pay the fine. (People v. McMahan(1992)3 Cal.App.4th 740,749-750[4 Cal.Rptr.2d 708].)

With respect to the trial court's failure to impose $500 fines for defendant's other two qualifying convictions, the People have failed to demonstrate error. InPeople v. O'Neal(2004)122 Cal.App.4th 817[19 Cal.Rptr.3d 202], the court held that each qualifying conviction in a single proceeding constitutes a separate conviction for purposes of imposing sex offender fines pursuant to section 290.3. (O'Neal, at p. 822.) As noted above, a trial court is required to impose sex offender fines on each qualifying conviction "unless the court determines that thedefendant does not have the ability to pay the fine." (§ 290.3, subd. (a), italics added; seePeople v. Burnett(2004)116 Cal.App.4th 257,261[9 Cal.Rptr.3d 885] [imposition of fine is mandatory unless court determines that defendant does not have the ability to pay the fine];People v. McMahan, supra,3 Cal.App.4th at p. 749[same].) However, "[i]f a trial court fails, without explanation, to impose the section 290.3, subdivision (a) sex offender fine, that is not a jurisdictional error." (People v. Stewart, supra,117 Cal.App.4th at p. 911[on silent record, failure to impose sex offender fine implies finding that defendant does not have the ability to pay]; seePeople v. Burnett,supra,116 Cal.App.4th at p. 261[same].) "`Because factual issues come into play in determining whether a defendant has the ability to pay the section 290.3 fine, the failure to impose the fine is "not correctable without considering factual issues presented by the record or remanding for additional findings." [Citation.] On a silent record, we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine. [Citations.]'" (People v.Stewart, supra,117 Cal.App.4th at p. 911.) The trial court in this case imposed a sex offender fine for only one conviction. It did not state why it imposed no fines for defendant's other two convictions. The People did not object in the trial court to the trial court's failure to impose the additional fines. (People v. Burnett, supra,116 Cal.App.4th at p. 262; seePeople v. Tillman, supra,22 Cal.4th at pp. 301-302[People's failure to object forfeits assertion that trial court erred in making discretionary choice not to impose fines].) Accordingly, we must presume that the trial court determined that defendant does not have the ability to pay the two additional $500 fines. On remand, the trial court shall not impose any fines for the second and third convictions pursuant to section 290.3. (SeePeople v.Hanson(2000)23 Cal.4th 355,363[97 Cal.Rptr.2d 58,1 P.3d 650] [imposition of increased fines after appeal violates double jeopardy].)

2.Mandatory Assessments and Surcharges

The People argue that the trial court also erred by failing to impose a mandatory penalty assessment pursuant to section 1464, subdivision (a)(1); aPage 1372mandatory state surcharge pursuant to section 1465.7, subdivision (a); a mandatory state court construction penalty pursuant to Government Code section70372, subdivision (a); and a mandatory penalty assessment pursuant to Government Code section76000, subdivision (a)(1). These provisions require the imposition of additional penalties and surcharges upon every fine, penalty or forfeiture imposed for a criminal offense. (People v. Talibdeen, supra,27 Cal.4th at p. 1157;People v. McCoy(2007)156 Cal.App.4th 1246,1254,1257[68 Cal.Rptr.3d 134];People v. Stewart, supra,117 Cal.App.4th at pp. 910-911.) If the trial court imposes a sex offender fine on remand, it must also impose mandatory penalty assessments and surcharges based on the amount of that fine pursuant to these provisions. (Talibdeen, at p. 1157;McCoy, at pp. 1254, 1257;Stewart, at pp. 910-911.)

The trial court previously imposed a $200 restitution fine (§ 1202.4) and a $200 parole restitution fine, stayed (§ 1202.45). Pursuant to recently enacted legislative amendments, the penalty assessment and surcharge provisions cited above do not apply to restitution fines. (§ 1464, subd. (a)(3)(A); § 1465.7, subd. (a); Gov. Code, §70372, subd. (a)(3)(A); Gov. Code, §76000, subd. (a)(3)(A).) The amendments operate retroactively, and apply to this case. (People v. McCoy, supra,156 Cal.App.4th at p. 1257.) Accordingly, no additional assessments and surcharges shall be imposed based on the restitution fines.

Finally, we note that the trial court imposed one $20 court security fee pursuant to section 1465.8, subdivision (a)(1). The trial court should have imposed one $20 court security fee foreachof defendant's four convictions, for a total of$80. (People v. Schoeb(2005)132 Cal.App.4th 861,865-866[33 Cal.Rptr.3d 889]; see alsoPeoplev. Alford(2007)42 Cal.4th 749,758, fn. 6 [68 Cal.Rptr.3d 310,171 P.3d 32].) The trial court is to impose these fees on remand.
DISPOSITION
The sex offender fine imposed pursuant to section 290.3 is vacated. On remand, the trial court shall determine whether to impose one sex offender fine of $300, as prescribed by section 290.3, subdivision (a). If the trial court imposes that fine, it shall also impose mandatory penalty assessments and surcharges pursuant to section 1464, subdivision (a)(1); section 1465.7,Page 1373subdivision (a); and Government Code sections70372, subdivision (a) and 76000, subdivision (a)(1). The trial court shall also impose a $20 court security fee for each of defendant's four convictions, for a total of $80. In all other respects, the judgment is affirmed.

Armstrong, Acting P. J., and Kriegler, J., concurred.

Appellant's petition for review by the Supreme Court was denied June 11, 2008, S162390.Page 1374
  1. Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of Background and Discussion, part A. ↩
  2. All statutory references are to the Penal Code unless stated otherwise. ↩
  3. While this appeal was pending, the trial court corrected defendant's presentence credit by giving him one additional day of actual custody credit. ↩
  4. The transcript of the sentencing hearing states that the trial court imposed "a 290 fine in the amount of $200." The minute order and abstract of judgment, however, both reflect the imposition of a $300 sex offender fine pursuant to section 290.3. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v.Mitchell(2001)26 Cal.4th 181,185-186[109 Cal.Rptr.2d 303,26 P.3d 1040];People v. Zackery(2007)147 Cal.App.4th 380,385[54 Cal.Rptr.3d 198].) ↩
  5. See footnote,ante, page 1364. ↩
  6. See footnote,ante, page 1364. ↩
  7. Section 667.6, subdivision (c) provides in pertinent part, "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." The offenses specified in section 667.6, subdivision (e) include rape, oral copulation, and sexual penetration, the crimes of which defendant was convicted in counts 1, 2 and 3. (§ 667.6, subd. (e)(1), (3), (7).) ↩
  8. All rule references are to the California Rules of Court. ↩
  9. Defendant asserts that, at the time defendant committed his offenses in this case, former section 290.3, subdivision (a) provided for a $200 fine on the first conviction and a $300 fine for additional convictions. This is incorrect. The amendment to section 290.3, subdivision (a) raising the fines to $300 for the first conviction and $500 for additional convictions became effective on September 20, 2006, before defendant committed his crimes. (Stats. 2006, ch.337, § 18; see Historical and Statutory Notes, 48 West's Ann. Pen. Code (2008 supp.) foil. § 290.3, pp. 275-276.) Sections 290 and 290.3 were both amended effective October 13, 2007, but not in any respect material to this case. (Stats. 2007, ch.579, §§ 8, 35.) ↩
  10. We do not read the "or" in section 290.3 to mean fines for each conviction are alternative. Although "or" is normally used for the disjunctive (People v. Smith(1955)44 Cal.2d 77,78[279 P.2d 33]) that is not always so. (Mellinkoff, Mellinkoff's Diet, of American Legal Usage (1992) p. 449.) ↩