Unreported / Non-Citable
Background
Luis Alvarado Calderon was charged with five felony counts arising from the sexual assault of 12-year-old Jane Doe during a family party in June 2023: two counts of forcible lewd acts upon a child under 14 and three counts of aggravated sexual assault of a child by means of penetration, rape, and oral copulation. Calderon, then 28 and a cousin of the victim's stepfather, assaulted Doe in her brother's bedroom after the gathering; her mother discovered the assault, confronted Calderon, and the family called police.
In November 2025, Calderon pleaded no contest to the two lewd-acts counts and admitted two aggravating factors—a particularly vulnerable victim and abuse of a position of trust—in exchange for an agreed 18-year prison sentence. In January 2026 the trial court imposed the upper term of 10 years on the first count, consecutive to a middle term of eight years on the second. The court also imposed a $300 sex offender fine under Penal Code section 290.3 with $930 in related penalty assessments, despite expressly finding that Calderon was unable to pay any fines.
Calderon filed a timely notice of appeal. The Court of Appeal appointed counsel, who filed an opening brief raising no issues under People v. Wende. After advising Calderon of his right to file written argument on his own behalf, the court received no response and conducted an independent review of the entire appellate record under Wende and People v. Kelly.
The Court’s Holding
On independent review, the court identified one arguable issue: the $300 sex offender fine under Penal Code section 290.3 and the $930 in accompanying penalty assessments. After requesting supplemental briefing, it accepted the Attorney General's concession that they should be stricken because the trial court had found Calderon unable to pay. Penal Code section 290.3 authorizes the fine only 'unless the court determines that the defendant does not have the ability to pay the fine'; because the trial court expressly made that determination, citing People v. Kopp, the fine and assessments were improperly imposed.
The court distinguished the $300 restitution fine under Penal Code section 1202.4, which is legally required regardless of ability to pay, and, citing People v. Smith, held it could correct the error without remanding. It ordered the sex offender fine and penalty assessments stricken and directed the clerk of the trial court to prepare an amended abstract of judgment.
As to the remainder of the judgment, the court found no other arguable grounds for appeal. A no contest plea generally waives appellate challenges except those based on constitutional, jurisdictional, or legality-of-proceedings grounds, and Calderon had not sought a certificate of probable cause under Penal Code section 1237.5. Finding no other apparent error in the sentence or post-plea proceedings, the court concluded appellate counsel had complied with Wende and affirmed the judgment as modified.
Key Takeaways
- A trial court may not impose a sex offender fine under Penal Code section 290.3 after expressly finding that the defendant lacks the ability to pay it.
- The Court of Appeal may correct an improperly imposed fine on direct appeal without remanding for further proceedings.
- A no contest plea waives most appellate challenges unless the defendant obtains a certificate of probable cause from the trial court.
- In a Wende appeal where counsel raises no issues, the appellate court's independent record review may still identify arguable errors such as unauthorized fines.
- Penalty assessments attached to an unauthorized fine must also be stricken when the underlying fine is invalid.
Why It Matters
The decision reinforces that the sex offender fine under Penal Code section 290.3 is contingent on the defendant's ability to pay; when a trial court expressly finds inability to pay, imposing the fine is legal error correctable on appeal. It also illustrates Wende review safeguarding defendants even when appointed counsel identifies no arguable issues, since the court's own examination of the record uncovered a sentencing error that both parties agreed required correction.
The opinion further distinguishes mandatory restitution fines, which apply regardless of ability to pay, from discretionary fines like the sex offender fine, and advises practitioners to review abstracts of judgment for unauthorized fines where the trial court has made express findings about a defendant's financial circumstances.