Full Opinion

Filed 11/6/26 P. v. Calderon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIXTH APPELLATE DISTRICT THE PEOPLE, H054094 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2307951) v. LUIS ALVARADO CALDERON, Defendant and Appellant. Luis Alvarado Calderon was charged with three counts of aggravated sexual assault of a child, including by means of rape, as well as two counts of forcible lewd acts against a child. Calderon entered into a plea agreement in which he pleaded no contest to the lewd acts charges in exchange for an agreed-upon sentence of 18 years, which the trial court imposed. Calderon appealed, and we appointed counsel to represent him. Counsel filed an opening brief stating the case and the facts, but raising no issues. We advised Calderon of his right to file written argument on his own behalf, but received no response. We have reviewed the full appellate record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). (See also People v. Kelly (2006) 40 Cal.4th 106 (Kelly).) In light of this review, we requested supplemental briefing concerning a sex offender fine and penalty assessments imposed on Calderon, which the Attorney General conceded should be stricken because the trial court found Calderon unable to pay them. As explained below, we accept that concession. Otherwise, we find no arguable issue for appeal. Accordingly, we affirm the judgment, but strike the sex offender fine and related penalty assessments. I. BACKGROUND A. The Offenses In June 2023, Jane Doe was 12 years old, and she lived with her mother, stepfather, and brother. One night her family hosted a party for relatives, and after midnight, because her room had been given to relatives visiting from out of town, Doe went to her brother’s room to sleep. A cousin of Doe’s stepfather, Calderon was 28 years old at the time of the party. At some point early in the morning, he woke Doe up, said he had been told to sleep in the same room, and laid down next to her. Doe fell back asleep but awoke to Calderon rubbing her chest under her clothing. Terrified, Doe pretended to be asleep, but Calderon began pulling her shorts down, and she pulled them back up and pushed his hands away. Then, Calderon groped Doe’s chest and groin, penetrated her vagina with his hand and his penis, and orally copulated her. Doe resisted, but did not flee because she feared Calderon would beat her. After about an hour of these assaults, Doe’s mother entered the room, and Calderon stopped. He pretended to be asleep, but Doe’s mother saw that her daughter’s shorts were pulled down and told her to leave the room. Shortly afterwards, Doe told her mother what had happened, her mother and stepfather confronted Calderon, and they called the police. Calderon waived his rights and made a statement to police. Initially, he denied assaulting Doe or even interacting with her, but later he attempted to convince the officers that he had a consensual sexual encounter with his 12-year-old step-cousin (once 2 removed) in her brother’s bedroom. Calderon continued to deny that he had penetrated Doe, but also said that he was not able to ejaculate because his penis became soft. B. The Charges Calderon was charged with five crimes: (1) two counts of forcible lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); counts 1 & 5); (2) aggravated sexual assault of a child by means of penetration (id., § 269, subd. (a)(5); count 2); (3) aggravated sexual assault of a child by means of rape (id., § 269, subd. (a)(1); count 3); and (4) aggravated sexual assault of a child by means of oral copulation (id., § 269, subd. (a)(4); count 4). There were no enhancement allegations. C. The Plea and Sentence In November 2025, Calderon pleaded no contest to the two counts of forcible lewd acts and admitted two aggravating factors on the first count: a particularly vulnerable victim and abuse of a position of trust. (See Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.421(a)(3), (11).) In return, he was to receive a sentence of 18 years in prison. In January 2026, per the plea agreement, the trial court imposed the upper term of 10 years on the first lewd act count, consecutive to the middle term of eight years on the second lewd act count, for a total of 18 years in prison, with credit for 943 days of custody and 141 days of good time. The trial court also imposed various fines, fees, and assessments. The court found that Calderon was unable to pay any fines and announced its “intent to only impose those that … are legally required.” Nevertheless, the court imposed a $300 sex offender fine under Penal Code section 290.3 and an accompanying “penalty assessment” as well as a $300 restitution fine under Penal Code section 1202.4, subdivision (b)(2). The court also imposed but then suspended a $300 parole revocation restitution fine under Penal Code 3 section 1202.45. Finally, the court waived any other fees because of Calderon’s inability to pay. The abstract of judgment specified that the penalty assessments imposed in connection with the sex offender fine totaled $930. Calderon filed a timely notice of appeal. II. DISCUSSION We have reviewed the entire record under Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106. We find one issue for appeal: the $300 sex offender fine under Penal Code section 290.3 and accompanying $930 in penalty assessments. As the Attorney General conceded in supplemental briefing, the sex offender fine under Penal Code section 290.3 and accompanying penalty assessments should be stricken because the fine is required only where the defendant has the ability to pay and the trial court found Calderon unable to pay. We agree: Referencing People v. Kopp (2025) 19 Cal.5th 1, the trial court expressly found that Calderon was unable to pay any fines and stated that it intended to impose only “legally required” fines. The $300 restitution fine under Penal Code section 1202.4 is legally required. (Kopp, at p. 13.) The $300 sex offender fine under Penal Code section 290.3 and related penalty assessments are not. To the contrary, Penal Code section 290.3 authorizes the sex offender fine “unless the court determines that the defendant does not have the ability to pay the fine.” (Pen. Code, § 290.3, subd. (a).) The trial court expressly made that determination. As a consequence, the $300 sex offender fine and the $930 in related assessments were improperly imposed and should be stricken. (See People v. Smith (2001) 24 Cal.4th 849, 854 [“the Court of Appeal may correct this error [mistakenly imposing a fine] without remanding for further proceedings”].) Our review reveals no other grounds for appeal. As a general rule, a guilty or no contest plea waives all appellate challenges except those based on constitutional, 4 jurisdictional, or other grounds concerning the legality of the proceedings. (People v. Richardson (2021) 65 Cal.App.5th 360, 369; People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) In addition, absent a certificate of probable cause from the trial court, “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere.” (Pen. Code, § 1237.5.) Here, Calderon pleaded no contest, and he did not seek a certificate of probable cause, instead declaring in his notice of appeal that his appeal challenged the sentence and other matters occurring after the plea. In addition, other than the fine and penalty assessments discussed above, there is no apparent error in the sentence or post-plea proceedings. Accordingly, we conclude that, other than the sex offender fine and related penalty assessments, Calderon has no arguable grounds for appeal and his appellate counsel has complied with his responsibilities. (Wende, supra, 25 Cal.3d at p. 441.) III. DISPOSITION The $300 sex offender fine imposed under Penal Code section 290.3 and $930 in related penalty assessments are stricken. As modified, the judgment is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment and to send a copy to the Department of Corrections and Rehabilitation. 5 ____________________________ BROMBERG, J. WE CONCUR: ____________________________________ LIE, ACTING P. J. ____________________________________ ADAMS, J. People v. Calderon H054094