Prosecutor did not misstate intent element of charged offense, so defense counsel’s failure to object could not constitute deficient performance. Defendant, a 33-year-old woman, French kissed, groped, and kissed the breasts of a female family member a little before and after the girl’s 14th birthday. A jury convicted defendant of committing lewd and lascivious acts (Pen. Code, § 288), and the trial court placed her on probation with a suspended eight-year prison sentence. Defendant appealed, arguing trial counsel was ineffective for not objecting to the prosecutor’s argument during rebuttal that section 288 does not require “intent to sexually exploit” a minor. Held: Affirmed. Section 288 prohibits willfully and lewdly committing a lewd or lascivious act on the body of a child with intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. Here, defendant argued section 288 also contains a second intent element, i.e. the “intent to sexually exploit.” However, the text of section 288 says nothing about a further “intent to exploit,” and where the plain text is unambiguous, it is controlling. To the extent defendant argued she had an altruistic motive for her conduct (i.e. allowing the minor to “explor[e] [her] sexuality with someone she’s comfortable with”), motive is not the same as intent. Because the prosecutor did not misstate the elements of section 288, trial counsel was not ineffective for failing to object.

The trial court did not err in imposing but staying both a probation revocation restitution fine and a parole revocation restitution fine. The trial court sentenced defendant to prison for eight years, then suspended execution of the sentence and placed defendant on five years of formal probation. Defendant argued that the trial court erred in imposing but staying both a probation revocation restitution fine and a parole revocation restitution fine. Whenever a court imposes a sentence that includes a period of probation, it must assess a probation revocation restitution fine that is suspended unless and until probation is revoked. (Pen. Code, § 1202.44.) Where, as here, the trial court imposes a prison sentence but suspends execution of that sentence in order to place the defendant on probation, courts are split as to whether a parole revocation fine should also be imposed (and suspended) at that time. Applying principles of statutory interpretation, and disagreeing with People v. Hunt (2013) 213 Cal.App.4th 13, the court concluded that both fines should be imposed and stayed under these circumstances. The plain language of section 1202.45 requires that the parole revocation fine be imposed whenever a sentence is imposed that includes a period of parole. A defendant is “sentenced” when a judgment imposing punishment is pronounced, even if execution of the sentence is suspended. Because defendant was sentenced to prison, which automatically includes a parole term, the parole revocation fine should have been assessed in this case, even though execution of the sentence was suspended.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B291127.PDF