Filed 9/19/13 P. v. Gore CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
FRED JEFFREY GORE,
Defendant and Appellant. 2d Crim. No. B246962 (Super. Ct. No. 1298769)

(Santa Barbara County)

Fred Jeffrey Gore appeals a j udgment entered following his nolo contendere plea to assault w ith the intent to commit rape . (Pen. Code, § 220, subd. (a).) 1 We modify the judgment to reflect impos ition of a $540 fine pursuant to section 290.3, and otherwise affirm. ( People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1250.)
FACTS AND PROCEDURAL HISTORY On January 26, 2012, th e Santa Barbara County pr osecutor filed a second amended information charging Gore with ki dnapping to commit rape (count 1), and
assault with the intent to co mmit rape (count 2). (§§ 20 9, subd. (b)(1), 220, subd. (a)(1).) The criminal prosecuti on concerned the kidnapping an d sexual assault of K.C. in the early morning hours of July 9, 1999. On June 11, 2009, forensic investigation

1 All further statutory references are to the Penal Code unless otherwise stated.2 identified the DNA contained in semen depos ited on K.C.'s clothing as the DNA of
Gore. Gore was arrested an d this prosecution ensued. On September 6, 2012, Gore waived his constitutional rights and pleaded nolo contendere to count 2, assault with the in tent to commit rape. (§ 220, subd. (a)(1).) The trial court sentenced Gore to a six-year prison term and awarde d him three days of presentence custody credit. The court also ordered victim res titution and imposed a $1,440 restitution fine; a $1,440 parole revoca tion restitution fine (stayed); a $40 court operations assessment; a $750 sexual offend er fine; and a $30 criminal conviction assessment. (§§ 1202.4, subds. (f) & (b), 12 02.45, 1465.8, subd. (a), 290.3; Gov. Code, § 70373.) On the prosecutor's motion, th e court dismissed the remaining charge (count 1). Gore appeals and contends that th e trial court erred by imposing a $750 sexual offender fine pursua nt to section 290.3.
DISCUSSION Gore argues that the trial court should have imposed a $540 sexual offender fine instead of a $750 fine becau se in 1999, when he committed the crime, section 290.3, subdivision (a) authorized a $2 00 fine. He adds that applicable penalty assessments in 1999 added $340 to the $200 fine. (§ 1464, subd. (a); Gov. Code, § 76000, subd. (a)(1).) The Attorn ey General properly concedes. In 1999, section 290.3 required impos ition of a $200 fine upon the first conviction of a specified sexual offense. Se ction 1464, subdivision (a) then required a state penalty assessment of $10 for every $1 0 or fraction thereof of an imposed fine.
Government Code section 76 000, subdivision (a)(1) also then imposed a $7 penalty assessment for every $10 or fr action thereof of an imposed fine. Thus the trial court should have imposed a $540 sexual offe nder fine based upon 1999 law. ( People v. Valenzuela
, supra , 172 Cal.App.4th 1246, 1248 ["The prohibition ag ainst ex post facto laws applies to restitution fines"].) The fi ne imposed by the court is an unauthorized sentence that may be corrected on appeal. ( Id. at pp. 1248-1249.)3 We modify the judgment to impose a $54 0 fine pursuant to section 290.3. The trial court shall prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.4 Jean M. Dandona, Judge
Superior Court County of Santa Barbara

________________ ______________

Richard B. Lennon, under appoin tment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Ge neral, Susan Sullivan Pithey, Supervising Deputy Attorney Genera l, Rene Judkiewicz, Deputy Attorney General, for Plain tiff and Respondent.