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Filed 6/15/15 P. v. Murillo CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE MURILLO,

Defendant and Appellant. C076035

(Super. Ct. No. 10F07288)

A jury convicted defendant Rene Murillo on 11 counts of lewd or lascivious acts

with a child under the age of 14

. (Pen. Code

, § 288, subd. (a)

. ) 1 The jury also found that

defendant committed the acts against more than one victim

. ( § 667.61, subd. (e)(4 )

. )

The trial court sentenced defendant to an aggregate term of 90 years to life in state prison

, consisting of six consecutive terms of 15 years to life plus five concurrent terms of 15

1 Undesignated statutory references are to the Penal Code.2

years to life . The trial court also imposed various fees and fines, including a $600 fine

pursuant to section 243.4.

D efendant now contends the $600 fine imposed pursuant to section 243.4 i s

unauthor ized and must be vacated

. We agree the fine must be stricken . We will modify

the judgment to strike the $600 fine and affirm the judgment as modified.

DISCUSSION

Given the issue presented, it is unnecessary to recite the underlying facts

pertaining to defendant’s offenses.

At the sentencing hearing, the trial co urt indicated that it read and considered t he

probation department’s pre sentence investigation report which recommended, among
other things, that defendant pay a fine in the amount of $600 pursuant to s ection 243.4

. The trial court imposed the fine as rec ommended. There was no objection.

Section 243.4 pertains to sexual battery. Defendant contends the $600 fine must

be vacated because he was neither charged with

, nor convicted of

, sexual battery. Citing

People v. Scott (1994) 9 Cal.4th 331 ( Scott ), h e argues his contention is reviewable

despite his failure to object at trial because the fine “could not lawfully be imposed under

any circumstance in the particular case ” and thus constituted an unauthorized sentence.

( Id. at p. 354.)

The People agree t hat “ a fine pursuant to section 243. 4 was inapplicable in this

case.” However, relying on the language quoted above from Scott, supra

, 9 Cal.4th at

p. 354, the People argue that the $600 fine was authorized because it could have been

imposed under section 288, subdivision (e)

. Although the trial court could have impose d a fine under section 288,

subdivision (e) , it did not impose a fine pursuant to that statute

. We agree with

defendant that because he wa s neither c harged with

, nor convicted of

, any crime under

section 243.4, the fine imposed under that statute could not lawfully be imposed. Absent3

evidence of a clerical error, we do not have the authority to substitute one statute

for another. ( People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is modified to strike the $600 fine imposed pursuant

to section 243.4 , and the judgment is affirmed as modified. T he trial court is directed

to prepare an amended abstract of judgment reflecting the j udgment as modified, and

to forward a certified copy of the amended abstract of judgment to the Department

of Corrections and Rehabilitation.

MAURO , J.

We concur:

NICHOLSON , Acting P. J.

HOCH , J.