PEOPLE v. KIM (1995)

OPINION

Upon being sentenced to an aggregate term of ten years in state prison for three counts of a violation of Penal Code 1 section 288a committed upon three separate victims, defendant Loralie Kim appeals.   She challenges only the propriety of the section 290.3 fine and the restitution fine imposed pursuant to Government Code section 13967.   We will affirm.

DISCUSSION

1. Section 290.3 fine.

At the time of sentencing, section 290.3 provided, in relevant part:

“Every person convicted of a violation of any offense listed in subdivision (a) of Section 290,[2] in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, shall be punished by a fine of one hundred dollars ($100) upon the first conviction or a fine of two hundred dollars ($200) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.”  (See Historical Note, 48 West's Ann.Pen.Code (1995 pocket supp.) § 290.3, p. 119.)

 The trial court followed the recommendation contained in the probation report and imposed an “aggregate” $500 fine which presumably was reached by imposing $100 for count one and $200 each for counts three and six.   Defendant argues the sentencing court was only authorized to impose a $100 fine because she had suffered no prior convictions.   As will be explained below, the sentencing court's interpretation of section 290.3 was proper;  the $500 fine is not unauthorized by law.³

Although the issue presented is novel and legislative history reflecting intent on this limited point is nonexistent, the issue is, nevertheless, easily resolved.⁴  People v. Superior Court (Price) (1984) 150 Cal.App.3d 486, 488–489, 198 Cal.Rptr. 61, concisely enunciates the precepts upon which such an analysis is based:

“If no ambiguity, uncertainty, or doubt about the meaning of a statute appears, the provision is to be applied according to its terms without further judicial construction.   If, on the other hand, there is ambiguity, uncertainty, or doubt, the statutory language should be construed so as to effectuate the apparent legislative purpose.   In interpreting legislation, we must begin with the fundamental rule that a court should ascertain the intent of the Legislature.   The court should seek to effectuate the intent of the law, acting in a reasonable fashion to give the statute a sensible construction in accordance with the purpose of the lawmakers, to promote rather than defeat the policy underlying the legislation.   We recognize that in the construction of penal statutes, we must give the benefit of any doubt to the criminal defendant.”

Accurately defining three words—offense, conviction and subsequent—is crucial to the proper interpretation of the statute.   An offense is defined as “a breach of the criminal laws,” generally implying “a felony or a misdemeanor infringing public” rights.  (Black's Law Dict. (6th ed. 1990) p. 1081, col. 1.)  “A plea of guilty constitutes a conviction” (Stephens v. Toomey (1959) 51 Cal.2d 864, 869, 338 P.2d 182) and “subsequent” means “following in time, place, or order.”  (Webster's New World. Dict. (2d college ed. 1982) p. 1419.)   Thus, any pleas entered subsequent to the plea to the first count would be subsequent thereto and would, aphoristically, constitute a subsequent conviction.

 As noted earlier, “[i]f no ambiguity, uncertainty, or doubt about the meaning of a statute appears, the provision is to be applied according to its terms․”  (People v. Superior Court (Price), supra, 150 Cal.App.3d at p. 488, 198 Cal.Rptr. 61.)

We conclude that according to its terms, section 290.3 not only permitted the imposition of the fine as ordered by the trial court, but compelled it, absent the court's finding that defendant did not have the ability to pay it.⁵

Defendant was convicted of three qualifying offenses.   The trial court properly imposed an aggregate fine of $500:  $100 for the first offense (count one) and $200 for each of the subsequent offenses (counts three and six).   There was no error.

2. Restitution fine.***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise noted..  FN1. All statutory references are to the Penal Code unless otherwise noted.

2.   Section 288a is included within the list of offenses contained in section 290, subdivision (a)(2)(A).

3.   The People argue the issue was waived by defendant's failure to contest the fine at the time of sentencing.   However, because defendant asserts the fine was unauthorized by law and thus beyond the jurisdiction of the court, it may be challenged for the first time on appeal.  (See, e.g., People v. Neal (1993) 19 Cal.App.4th 1114, 1120, 24 Cal.Rptr.2d 129.)

4.   Section 290.3 was enacted in 1988 as part of legislation ordering persons required to register as sex offenders to pay an administrative fee to cover the costs associated with the registration process and requiring the Department of Justice to establish a pilot program entitled the “Serious Habitual Offender Program.”   The purposes of this legislation were “to:  identify serious habitual offenders from the sex registration files;  develop and maintain a comprehensive statewide file of serious habitual sex offenders;  and disseminate information about individuals in the Serious Habitual Offender File to the appropriate criminal justice agencies in a timely fashion in order to identify, apprehend, prosecute, and sentence serious habitual sex offenders.”   (Sen.Com. on Judiciary, Analysis of Sen.Bill No. 2334 (1987–88 Reg.Sess.) p. 2.)   Section 290.3, subdivision (a) is intended to:  “(1) increase fines for sex offenses which require registration by $100 for a first conviction of [sic ] $200 for second and subsequent conviction.  [¶] (2) specify that all monies collected in fines pursuant to this section will be transferred once a month into the General Fund.   These monies will be appropriated by the Legislature for funding for the Serious Habitual Offender Program, until July 1, 1994.”  (Sen.Com. on Judiciary, Analysis of Sen.Bill No. 2334, 3d reading June 3, 1988, p. 1.)

5.   Defendant's contention that the word “or” used in this section precludes this interpretation is not persuasive.   This conjunction simply means one cannot be fined both amounts for a single offense;  it does not mean that only one fine may be imposed regardless of the number of qualifying convictions.   An individual who has been convicted of multiple offenses as a result of a single prosecution should not stand in a better position that an individual who commits his or her offenses singly and is prosecuted over time in a series of one-count indictments, especially where, as here, each offense was committed on a different victim.

FOOTNOTE.   See footnote *, ante.

BUCKLEY, Associate Justice.

VARTABEDIAN, Acting P.J., and THAXTER, J., concur.