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Name: People v. Burnett
Case #: C042540
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/27/2004
Subsequent History: Rehg Den. 3/24/04

Appellant entered into a negotiated plea agreement where he pleaded guilty to one violation of Penal Code section 288, subd. (b)(1) as well as two other offenses, in exchange for remaining charges and enhancements to be dismissed. He was sentenced to prison, and restitution fines, a crime prevention fine, and victim restitution were ordered. Appellant was ordered to register as a sex offender and to submit blood samples. The appellate court requested supplemental briefing on whether the failure to impose a sex offender fine, pursuant to Penal Code section 290.3, is an unauthorized sentence subject to correction on appeal. Appellant argued that it must be presumed that the trial court made the requisite finding that he did not have the ability to pay, and therefore the failure to impose the fine was not unauthorized. The prosecutor argued that the sex offender fine is mandatory, and therefore the trial court’s failure to impose it was an unauthorized sentence. The appellate court here agreed with appellant’s argument. The trial court does not have to impose the fine if appellant has no ability to pay, and it must be presumed the trial court made the requisite findings to support its judgment. Further, the implied finding of inability to pay is supported by substantial evidence. The omission of a sex offender fine pursuant to section 290.3 on a silent record does not constitute an unauthorized sentence which may be corrected on appeal.