Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH-45499
RUVOLO, P. J.
Appellant Dwayne Bruce Lee appeals from the judgment entered after a jury convicted him of one count of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).) He contends reversal is required because evidence of a prior sexual offense was erroneously admitted, and that error occurred in the court’s imposition of sentence. Finding no reversible error, we affirm the judgment. However, we remand for the limited purpose of resentencing.
All further undesignated statutory references are to the Penal Code.
I. FACTS
A. Prosecution’s Case
In or about 1996, Pamela B. and appellant began corresponding with each other while appellant was in prison. Pamela believed that appellant was in prison for attempting to kill the man who was responsible for his younger brother’s death. Eventually Pamela fell in love with appellant, and she frequently visited him in prison. On numerous occasions, she brought her two young daughters, K. and D., with her when she visited appellant. At some point, while appellant was still incarcerated, he and Pamela were married. Once released from prison, appellant went to live with Pamela, K., and D. At the time of trial, K. and D. were 20 and 17 years old, respectively.
1. Sexual Offenses Against K.
When appellant first came to live with Pamela and her daughters, K. was eight years old and in the third grade. Pamela worked as a bus driver; she left the house about 4:00 or 5:00 a.m. and did not return until around 6:00 p.m. Soon after appellant moved in, he began waking K. in the morning after Pamela had left for work, and would ask her to “spoon” with him in the bed he shared with her mother; he told K. it would “help him sleep.” While in bed together, appellant would touch K. in ways that she did not want to be touched, including putting his finger in her vagina, rubbing her vagina, touching her buttocks and other parts of her body. K. would tell appellant to stop, and she cried every time he touched her. Appellant would tell K. not to cry, and he would pull her back if she tried to get out of the bed. Appellant also forced K. to stroke his erect penis. K. would remain in bed with appellant for an hour and half to two hours every day. At appellant’s instruction, K. would return to her bedroom before her younger sister, D. awoke.
Approximately two to three months after the touching began, appellant started putting his penis in K.’s vagina. K. remembered that the first time it happened, she had gone into appellant’s bedroom and a pornographic movie was playing on the television; appellant told her to watch the movie. After touching K. all over her body, including her buttocks, breasts, and vagina, appellant got on top of her and put his penis in her vagina, which hurt K.. Although K. cried and told him to stop, appellant continued to have intercourse with K. for 30 to 40 minutes. After this incident, appellant would have sex with K. every day after her mother left for work. This pattern occurred for approximately four years. K. estimated that appellant had sex with her “hundreds of times.”
In the fall of 2001, when she was 13 years old, K. began to feel nauseous. One day, appellant handed K. a pregnancy test and told her to take it. After taking the test, appellant took it from her without ever telling K. the results. A week later, appellant picked K. up from school and drove her to Planned Parenthood to take another pregnancy test. K. was “shocked” to learn that she was four months pregnant. Appellant had been the only person with whom she had had sex. While at Planned Parenthood, K. said she wanted to get an abortion. Later, during the drive back home, appellant asked K. if she really wanted to get an abortion and told her that if she decided to keep the baby, she would have to lie and tell her mother that someone else was the father. K. told appellant that she wanted to get an abortion, that she was too young at age 13 to have a baby, and she did not want to have a child by her “father.” On December 13, 2001, appellant drove K. to an abortion clinic, where she had an abortion.
In April 2002, the family moved to Las Vegas, where appellant continued to sexually molest K. on a daily basis, sometimes up to three or four times a day. The assaults finally stopped when appellant was imprisoned for a parole violation. While appellant was incarcerated, Pamela, K. and D. moved back to California.
In January 2006, in the course of an argument with Pamela, D. revealed that appellant had molested her. K. also confirmed that she had been molested by appellant. In September 2006, K., at her mother’s urging, reported appellant’s conduct to the police. K. explained that she had not come forward sooner because she thought no one would believe her.
2. Sexual Offenses Against D.
D. was four or five years old when appellant came to live with her, Pamela, and K.. A few months after appellant moved into her home, once or twice a day in the afternoon, almost every day, appellant would ask her to lay with him in his bed to help him fall asleep. While in the bed, appellant would lift D.’s shirt and touch her breasts. He also touched the outside and inside of D.’s vagina. While they were “spooning, ” appellant would rub his penis against D.’s buttocks.
Eventually, appellant’s offenses against D. escalated to where he would lay on top of her and rub his penis against her vagina. On more than 10 occasions, appellant put his penis in D.’s vagina, which hurt her and caused her to bleed. The assaults would often occur in the afternoon, before K. returned home from school. Appellant continued to molest D. when the family moved to Las Vegas. The molestations finally stopped when appellant was sent back to prison.
D. testified that appellant’s conduct frightened her. She added that appellant was “bigger” than she was, and he hit her. D. explained that she did not tell Pamela about appellant’s conduct “[b]ecause it would hurt her [mother] to know that her husband was touching” her. D. confirmed that, at the preliminary hearing, she testified that if she believed someone was hurting her mother, she would want to hurt them back. D. believed that appellant had hurt her mother.
D. described her relationship with appellant as “ [v]ery rocky, ” stating that they “would always get into it.” She was angry with appellant for molesting her. D. believed that appellant favored her sister, K. Pamela confirmed that appellant had favored K., explaining that K. “could do no wrong, whereas D. [w]ould do everything wrong and would get chastised.” Pamela confirmed that D.’s relationship with appellant was “[t]umultuous.”
In September 2007, about a year after K. first contacted the police, D. spoke to the police about appellant’s conduct because she “didn’t want to see nobody else get hurt by him.” She explained that she did not initially talk to the police because there was no point to bring it up since appellant was out of their lives. She denied that her mother pressured her into speaking to the police and testifying at trial.
3. Uncharged Offenses
a. Jane Doe 1
Jane Doe 1 (JD1) testified that in 1987 she was 16 years old and lived in Oakland, across the street from appellant’s grandmother. One night, around midnight, appellant climbed through JD1’s open bedroom window. Appellant got into bed with JD1 and rubbed her buttocks through her pajamas. When she asked him what he was doing, he told her that she had “grown to be a beautiful young woman....” Appellant wanted to get under the covers with JD1, but she held them tightly against her body. JD1 said that she was not frightened because she knew appellant and knew that if she remained calm and asked to him to leave, he would leave. Appellant told JD1 that if she screamed, they both would be in trouble. JD1 asked appellant to leave, and he left about 15 minutes later.
b. Jane Doe 2
In 1991, Jane Doe 2 (JD2), who was then 18 years old, was sexually assaulted by appellant. JD2 testified that on evening of October 8, 1991 at 8:30 p.m., she was inside a laundromat in Redwood City, when a stranger approached her. The stranger, later identified as appellant, began to talk to JD2. Appellant asked if she would be interested in playing basketball with him sometime in the future. At some point, he left the laundromat for a quick trip to a liquor store. When he returned, he offered JD2 a beer and t-shirt. JD2 did not drink the beer. JD2 felt that appellant was “coming on” to her, and explained that that it “quickly... became a very uncomfortable situation.”
Eventually, appellant left the laundromat. When JD2 went outside about an hour later, appellant grabbed the top of her shirt with both hands and threw her to the ground. As she cried out in pain, he picked her up and threw her down again, at least 10 to 12 more times. JD2 was in shock and did not have a chance to regain her bearings.
Appellant then dragged JD2 to an alleyway, where he lifted her up and pushed her body down onto the spikes at the top of an iron gate; the spikes went through her clothing and pushed into her back. Appellant then pulled her down, and jammed her body between a fence and a brick building, where he grabbed her breasts, buttocks, and vagina. Repeatedly he told her, “you’re going to have to suck my dick.” Appellant grabbed JD2’s face, as he pushed her against a wall. He undid his pants and exposed his penis. As appellant had one hand on his penis, JD2 was able to break free from his grip and run away. Appellant chased her through the street, forcing JD2 to dodge cars as she ran. Eventually, JD2 got away from appellant. About an hour later, the police apprehended appellant and JD2 positively identified him as the man who had assaulted her.
B. Defense
Appellant, who was 47 years old at the time of trial, testified in his own defense. He admitted he had prior felony convictions for grand theft, attempted burglary, burglary, attempted robbery, and attempted forcible oral copulation. Appellant explained that his previous convictions were the result of guilty pleas because he was “guilty, ” whereas he took the instant case to trial because he was “innocent.”
Appellant was sentenced to 12 years 8 months in prison for assaulting JD2. He explained that he was 28 years old at the time of the assault, and he had been drinking. When asked if he grabbed JD2’s neck and dragged her, he replied, “If that’s what she said, I guess so.” When asked further details about the assault he replied, “I pled guilty to it. We already know what happened.” Similarly, appellant did not deny the incident with JD1. Rather, he explained that he just “did something dumb.”
Appellant claimed that Pamela knew he was in jail for sexually assaulting a woman. He also claimed that Pamela knew he was required to register as a sex offender as a condition of his probation, and that she had even assisted him in the registration process. On cross-examination, however, appellant denied saying that Pamela knew he was a registered sex offender.
Appellant denied that he ever had a sexual encounter with either K. or D. He claimed that both girls lied about being molested. Although he admitted to helping K. get an abortion, appellant said that K. lied about him being the father of the baby.
II. PROCEDURE
By second amended information, appellant was charged with two counts of continuous sexual abuse of a child under the age of 14, occurring from March 24, 1998, to April 1, 2002. (§ 288.5, subd. (a), count 1 (K.) & count 2 (D.)). The information alleged enhancements for offenses against separate victims. (§§ 667.6, subd. (a), 667.61, subd. (e)(5).) The information also alleged that appellant had suffered six prior convictions.
Pursuant to appellant’s admission, the trial court found true the six prior convictions. The jury convicted appellant of one count of sexual abuse on K. and acquitted him of the other count pertaining to D.
The trial court sentenced appellant to an indeterminate term of 25 years to life for his continuous sexual abuse of K., plus three five-year determinate terms under section 667, subdivision (a)(1) based on three of his six prior convictions.
III. DISCUSSION
A. Prior Misconduct
Before trial, appellant asked the court to exclude testimony from JD2 regarding the 1991 sexual assault. The trial court denied the request, ruling the testimony was admissible under Evidence Code section 1108. The court ruled that the probative value of JD2’s testimony would exceed any undue prejudice. In so ruling, the court explained that “[t]he [L]egislature was clear when they drafted and passed [Evidence Code section] 1108, that where sexual offenders had histories of these types of offenses, if they come back on serious sexual charges, they were going to give the courts broad discretion in this area. [Appellant] has exhibited those propensities and I feel under the law the legal, factual and appropriate basis is to allow the [p]rosecutor to use [this evidence]. Sexual molestation and sexual abuse cases are very, very, difficult cases to prove especially when there’s delayed disclosure, and I feel this is the proper and appropriate legal ruling to allow the DA” to use this evidence.
Appellant contends the trial court abused its discretion in admitting JD2’s testimony under Evidence Code section 1108. We disagree.
As a general rule, evidence of uncharged crimes is inadmissible to prove a defendant’s conduct on a particular occasion. (Evid. Code, § 1101.) The Legislature has created an exception to this rule, however, in Evidence Code section 1108, which provides in pertinent part, “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” Our Supreme Court upheld the constitutionality of section 1108 against a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 910-922, relying in part on the trial court’s discretion to exclude unduly prejudicial evidence.
“Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. ‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. ‘It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.’ [Citation.]” (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) However, our Legislature has determined that in criminal sexual offense cases, the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed by the policy considerations favoring its admission, and that “the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]” (Id. at pp. 181-182.)
Appellant contends that under the facts of this case, the trial court abused its discretion under Evidence Code section 352, which provides that a court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury.” For purposes of Evidence Code section 352, the term prejudice “ ‘applies to evidence which uniquely tends to evoke an emotional bias against a defendant as an individual and which has very little effect on the issues....’ [Citations.]” (People v. Callahan (1999) 74 Cal.App.4th 356, 371.)
Turning to the first element of Evidence Code section 352, admitting the evidence of the prior crime did not require an undue consumption of time. JD2’s entire testimony, including her direct and cross-examination, covers only 10 pages of the reporter’s transcript.
As to the second element, appellant contends that “JD2’s account of a savage and unprovoked sexual attack was far more inflammatory” than the evidence presented by K. and D.. Appellant argues that JD2’s “profoundly disturbing testimony presented [him] as a brutal and scarily unpredictable sexual predator.” We note that there are obvious differences between the prior incident involving JD2 and the charged offenses. However, Evidence Code section 1108 contains no predicate requirement that there be an unusually high degree of similarity. (See People v. Soto (1998) 64 Cal.App.4th 966, 984.) Clearly, “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 (Frazier); see also People v. Mullens (2004) 119 Cal.App.4th 648, 659 (Mullens).) Indeed, Frazier concludes that “[i]t is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.” (Frazier, supra, at pp. 40-41; accord, Mullens, supra, 119 Cal.App.4th at p. 659; see also Evid. Code § 1108, subd. (d)(1)(A); §§ 314, 647.6.) Thus, evidence can be presented to permit a reasonable inference that “the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses.” (People v. Reliford (2003) 29 Cal.4th 1007, 1012.)
We disagree that the prior sexual offense and the current offense were so dissimilar that evidence of the prior misconduct should have been excluded as substantially more prejudicial than probative. “The fact that defendant committed a sexual offense on a particularly vulnerable victim in the past logically tends to prove he did so again with respect to the current offenses.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480 (rejecting argument that court erred in admitting evidence of prior rape of developmentally disabled woman in molestation case involving two young male victims).) Under these circumstances, we see no abuse of discretion in admitting JD2’s testimony.
People v. Harris (1998) 60 Cal.App.4th 727 (Harris), upon which appellant relies, does not persuade us otherwise. The defendant there, a mental health nurse, was charged with several sex offenses against women who had been admitted to a mental health care facility at which the defendant worked. (Id. at pp. 730-732.) At trial, the court admitted evidence of a prior offense that had occurred 23 years earlier, in which the victim had been found unconscious, naked from the waist down, with blood on her vagina and mouth area, and appellant had been discovered hiding nearby, with blood on the inside of his thighs and on his penis. (Id. at pp. 734, 739.) It was stipulated that the defendant had been convicted of burglary with great bodily injury. (Id. at p. 735.) The jury received only a partial and redacted account of the crime. (Id. at pp. 733-734.) The reviewing court concluded the evidence should not have been admitted under Evidence Code sections 1108 and 352, concluding the evidence was inflammatory in the extreme, and that the redacted version of the evidence would have caused confusion and speculation, was remote in time, and had no meaningful similarity to the offenses for which the defendant was being tried. (Harris, supra, at pp. 737-741.) In so holding, the court also noted that the jury could have concluded that the defendant was never punished for the prior rape, and thus might have been inclined to punish him by convicting him of the charged offenses. (Ibid.) Although recognizing that admission of the evidence did not consume much time during trial (ibid.), the court concluded that evidence that the appellant was a violent sex offender had little relevance to the “ ‘breach of trust’ sex crimes.” (Id. at p. 741.) Under those circumstances, the Harris court found an abuse of discretion in the admission of the evidence of the prior conduct. (Id. at p. 741.)
While this case is similar to Harris in some respects, it is markedly different in other respects. First, evidence that appellant sexually assaulted an adult woman once was not that inflammatory when compared to evidence that appellant repeatedly raped two young children over the course of four years. Second, there was little danger that evidence of the prior offense confused the jury. Also, because appellant was convicted of the prior offense, the jurors would see no need to punish him further for that crime. Third, the prior offense was not remote; it occurred just eight years before the charged offenses. Finally, although the prior offense and charged offenses were dissimilar, we believe on balance that the probative value of the prior offense was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. It is true that the evidence that appellant committed a violent sexual assault against a stranger was damaging to his defense. However, “ ‘[p]rejudice’ as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609....) ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People v. Karis (1988) 46 Cal.3d 612, 638....) [¶] The prejudice that section 352 ‘ “is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” [Citation.]’ (People v. Zapien (1993) 4 Cal.4th 929, 958....) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)
Here, the split verdict reflects that the jury was not so emotionally biased against appellant that it wanted to punish him by convicting him of both the charged offenses. Furthermore, although JD2’s testimony may have been damaging, its evidentiary value in establishing appellant’s propensity to commit sex offenses was substantial. (See People v. Memro (1995) 11 Cal.4th 786, 865.) As discussed, JD2’s testimony was presented in a relatively straightforward manner, and was no more inflammatory than the evidence about the charged offenses, which involved daily sexual assaults of minor children over a four-year period. Accordingly, we conclude that the evidence of appellant’s offenses against JD2 was properly admitted under Evidence Code section 1108.
Even assuming the trial court erred by admitting JD2’s testimony, we would nevertheless conclude the error was harmless. As appellant concedes, this case “came down to a credibility contest.” Contrary to appellant’s suggestion, the jury’s split verdict does not indicate that the jury acted from prejudice or passion. Rather, the split verdict reflects that the jury resolved the basic credibility dispute against appellant with respect to his offenses against K.
Appellant’s reliance on People v. Brown (1993) 17 Cal.App.4th 1389 (Brown) is unavailing. In Brown, the appellate court reversed a child molestation conviction after the trial court admitted evidence of a defendant’s prior uncharged acts of molestation. (Id. at pp. 1397-1398.) In reversing the conviction, the court held that the evidence of uncharged crimes of molestation was not admissible under Evidence Code section 1101 to provide the defendant’s identity since identity was not disputed. (Id. at pp. 1391, 1396.) The court also held that this evidence was not admissible to bolster the credibility of a detective’s testimony, who claimed that the defendant admitted he molested the victim. (Id. at pp. 1396-1397.)
Here, the evidence of uncharged misconduct, appellant’s prior sexual offense against JD2, was not admitted solely on a collateral issue. Rather, it was admitted under Evidence Code section 1108 to show appellant’s propensity to commit sexual offenses, and thus was directly probative on the key issue in the case, i.e., whether appellant committed the charged offenses. This crucial distinction makes Brown, supra, 17 Cal.App.4th 1389 inapposite.
Finally, even without JD2’s testimony, the jury still would have heard evidence about appellant’s conduct towards JD1, as well as the uncharged offenses that occurred in Las Vegas. Thus, on this record any error in admitting JD2’s testimony was harmless because it is not reasonably probable that appellant would have achieved a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; Mullens, supra, 119 Cal.App.4th at pp. 658-659 [error in admission or exclusion of evidence following exercise of discretion under Evid. Code, § 352 in considering whether to admit evidence under Evid. Code, § 1108 is reviewed under Watson harmless error test; Harris, supra, 60 Cal.App.4th at p. 741 [same].)
B. Sentencing
1. Enhancements
Appellant argues that the trial court violated his right to due process and fair notice when it imposed enhancements under section 667, subdivision (a), that were not alleged in the information. The Attorney General concedes that the matter must be remanded for resentencing because the trial court imposed enhancements that were not specifically enumerated in the information. The Attorney General further asserts that that trial court erroneously failed to impose the enhancements that were pleaded and proven at trial. (See, e.g, § 667.5, subds. (a), (b).)
Accordingly, we conclude the proper remedy is to remand this case to the trial court, so that it may restate its sentencing choices to conform to the matters alleged in the information and proven at trial.
2. Sex Offender Fines and Penalty Assessments
Both parties claim error in the impositions of fines and assessments at sentencing. Appellant argues that the trial court violated the prohibition against ex post facto punishment by imposing a fine greater than was authorized at the time he committed the charged offense. The Attorney General asserts that although the trial court properly calculated the sex offender registration fine, the matter must be remanded to impose mandatory penalty assessments, a state surcharge, and a state court construction penalty fine. For the reasons explained below, we conclude that a remand is necessary.
At sentencing, the trial court imposed a $300 fine pursuant to section 290.3. Appellant argues that the fine should be reduced to $200.
At the time of the offense, section 290.3, subdivision (a) provided: “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 violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (Stats. 1995, ch. 91, § 121, p. 346, italics added.)
Section 290.3, subdivision (a) currently provides for a $300 fine for the first conviction and a $500 fine upon the second and each subsequent conviction.
As previously noted, appellant was convicted in 1991 for violating section 220, subdivision (a), which is a qualifying offense specified in section 290, subdivision (c). Thus, appellant’s instant conviction for violating section 288.5, subdivision (a), which is also a qualifying offense under section 290, subdivision (c), constitutes his second conviction. Accordingly, the trial court properly imposed a $300 fine under the law existing at the time appellant committed the charged offenses.
Section 290, subdivision (c), provides in relevant part, “The following persons shall be required to register: [¶] Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state... of a violation of... Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6... or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.”
Appellant’s section 290.3 fine was also subject to assessments under Government Code sections 70372 and 76000, and sections 1464 and 1465.7. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530; People Valenzuela (2009) 172 Cal.App.4th 1246, 1249 (Valenzuela); People v. Walz (2008) 160 Cal.App.4th 1364, 1371-1372 (Walz).) These assessments were not imposed, and there was no finding made below that they should not be imposed because of appellant’s inability to pay them.
Although section 290.3 fines are mandatory, the court has the authority to omit these fines if it “determines that the defendant does not have the ability to pay the fine.” (§ 290.3, subd. (a).) Because the record before us does not permit us to evaluate whether the trial court made this determination, remand is the appropriate remedy to allow the court to reconsider this issue. (Valenzuela, supra, 172 Cal.App.4th at pp. 1249-1250; Walz, supra, 160 Cal.App.4th at pp. 1370-1371.)
IV. DISPOSITION
The matter is remanded to the trial court for the sole purpose of permitting the trial court to consider: (1) the appropriate sentencing enhancements alleged in the information and proven at trial; and (2) the associated assessments to be imposed according to former section 290.3, subdivision (a). The trial court should also determine whether appellant has the ability to pay said fines and their associated assessments. After consideration of these issues, the superior court clerk is directed to amend the abstract of judgment to conform to the trial court’s order and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: REARDON, J.SEPULVEDA, J.