28 Cal. App. 5th 701
Cal. Ct. App. 5th2018Background
- Defendant Ralph Acosta, Jr. was convicted after a bench trial of (1) lewd or lascivious act on a child under 14 (Pen. Code § 288(a)) and (2) contacting a minor with intent to commit a sexual offense (Pen. Code § 288.3(a)).
- Victim was an 8‑year‑old girl (Jane Doe); her 5‑year‑old sister witnessed parts of the incident but was not listed in the charging information.
- Trial court found the § 288.3 conviction premised on intent to commit § 288, not § 273a, and sentenced Acosta to 8 years on count 1 and a concurrent 4 years on count 2.
- At sentencing the court imposed two statutory sex‑offender fines under § 290.3 ($300 and $500) plus assessments/fees, without making express findings on ability to pay; defense did not object or request a hearing.
- The court issued a 10‑year criminal protective order listing both Jane Doe and her sister as protected persons; Acosta did not object to inclusion of the sister.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penal Code § 654 barred separate sentence on § 288.3 (double punishment) | Acosta: same intent/objective for both offenses; § 654 requires stay of punishment on count 2 | Prosecution/Court: convictions are distinct and court treated § 288.3 as concurrent; no § 654 objection raised below | Court: affirmed sentencing; no stay required and concurrent term proper (unpublished portion) |
| Whether counsel was ineffective for failing to object to § 290.3 fines and request ability‑to‑pay hearing | Acosta: counsel’s failure to object was deficient and prejudicial; remand for ability‑to‑pay hearing warranted | Court: counsel may have had reasonable tactical bases; probation report suggested ability to pay; prejudice not shown | Court: ineffective assistance claim rejected; counsel not shown constitutionally deficient; remand not required; but courts encouraged to inquire sua sponte about ability to pay |
| Whether trial court had authority to include victim’s sister in criminal protective order | Acosta: court lacked authority because sister was not charged as a victim in the information | Prosecution/Court: sister experienced impact/witnessed incident; court may protect persons under § 136.2(i)(1) | Court: issuance of protective order including Jane Doe 2 was within court’s authority (unpublished portion) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established two‑prong ineffective assistance test)
- In re Thomas, 37 Cal.4th 1249 (defendant bears burden to show counsel’s performance deficient on appeal)
- People v. Lopez, 42 Cal.4th 960 (appellate courts usually cannot resolve ineffective‑assistance claims absent record explanation)
- People v. Walz, 160 Cal.App.4th 1364 (failure to object at sentencing waives challenge to fines on appeal)
- People v. O'Neal, 122 Cal.App.4th 817 (trial court may impose § 290.3 fine for each qualifying conviction)
- People v. McMahan, 3 Cal.App.4th 740 (defendant ordinarily should affirmatively seek hearing on inability to pay)