Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles Coutny No. LA052237, Darlene E. Schempp, Judge.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Trevor Juan Broadnax, appeals from his conviction of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and deadly weapon assault (§ 245, subd. (a)(1)) (count 2). The jurors also found defendant personally used a knife (§ 12022, subd. (b)(1)) and inflicted great bodily injury. (§ 12022.7, subd. (a).) The jury did not reach a decision as to the great bodily injury enhancement alleged in count 2. Defendant was sentenced to a life term in state prison, consecutive to four years imposed for deadly weapon use and great bodily injury infliction. The trial court also imposed three years on count 2, with execution stayed under section 654, subdivision (a). Defendant received credit for 690 days in pretrial custody plus 103 days of conduct credit for a total presentence custody credit of 793 days. Defendant was ordered to pay: a $500 restitution fine (§ 1202.4, subd. (b)); a $500 parole revocation restitution fine (§ 1202.45); a $20 deoxyribonucleic acid penalty (Gov. Code, §§ 76104.6, subd. (a), 76104.7, subd. (a)(1)); and a $20 court security fee. (§ 1465.8, subd. (a)(1).) We modify the judgment and affirm as modified.
All further statutory references are to the Penal Code except where otherwise noted.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The victim, Jeffrey Lewis, is a transgender individual; she is biologically a man, but lives as a woman. Ms. Lewis and defendant were former roommates and they had been good friends for several years. Their relationship had been occasionally intimate. But there was no committed relationship. At the time of the attack, on April 24, 2006, Ms. Lewis had been supportive of defendant, financially and otherwise, for some time. Ms. Lewis and Talib Hamidullah became roommates in November 2005. Two months later they became intimately involved. Ms. Lewis and Mr. Hamidullah shared a bedroom some nights. Mr. Hamidullah first met defendant shortly after becoming Ms. Lewis’s roommate. Defendant began staying in the apartment. Defendant stayed almost every night for about eight months. Mr. Hamidullah and defendant became friends. They shared an interest in weightlifting. But Mr. Hamidullah became unhappy about defendant staying rent-free in the apartment and not contributing to the expenses. Mr. Hamidullah told Ms. Lewis he was unhappy about the situation. Ms. Lewis agreed that defendant had over-stayed his welcome. In addition, defendant’s presence jeopardized Ms. Lewis’s lease. A week or two prior to April 24, 2006, Ms. Lewis told defendant he needed to move out. Around that same time, defendant expressed to Mr. Hamidullah a sense of animosity towards Ms. Lewis. Mr. Hamidullah testified, “[H]e stated that the things that [Ms. Lewis was] doing for him now, he ha[d] done for her in the past, and he doesn’t understand why she would ask him to move... and he was there for her before....” Defendant decided he did not really care for Ms. Lewis. Mr. Hamidullah asked defendant, “[W]here did that come from[?]”
On April 24, 2006, Mr. Hamidullah had been out of the apartment. He came home in the afternoon and fell asleep. He awoke when his bedroom door slammed open. Ms. Lewis was holding her neck. Ms. Lewis said: “‘Trevor just cut me. Trevor just cut my throat.’” Blood was flowing profusely from Ms. Lewis’s neck. She called the emergency operator. The tape of her call was played for the jury. Ms. Lewis ran out of the house, yelling at defendant. Mr. Hamidullah begged her to get back inside. Ms. Lewis was unconscious when the paramedics arrived.
A couple of weeks prior to the assault, Ms. Lewis had found a knife in her room. Defendant had slept in her room the preceding night. Ms. Lewis returned the knife to the kitchen. On April 24, 2006, defendant called Ms. Lewis on the telephone and said he was going to come by and get his things. According to Ms. Lewis, he sounded “very normal.” Defendant wanted to know if Ms. Lewis would be home and she said yes. Defendant arrived about 5 p.m. Defendant did not buzz at the gate as he usually did; instead, he knocked on Ms. Lewis’s door. This caught Ms. Lewis by surprise. She opened the door and let defendant into the apartment. Defendant said, “‘Hi,’” and Ms. Lewis responded, “‘What’s up?’” Ms. Lewis sat down at her computer. In Ms. Lewis’s opinion, she was very short with defendant. She was cordial, but with a “slight attitude” when speaking to defendant. As far as Ms. Lewis was concerned, defendant or another person familiar with her would have picked up on it. She was anxious for him to hurry up and move out of the apartment. Defendant walked past her to the kitchen saying he was going to get his things. Less than a minute later he came up behind Ms. Lewis and cut her throat. She felt a very sharp, excruciating, pain. Screaming she ran upstairs to Mr. Hamidullah’s room and kicked his bedroom door in. She told Mr. Hamidullah, “‘Trevor just cut my throat.’” By the time Ms. Lewis and Mr. Hamidullah got back downstairs, defendant had fled.
Edward Tumbleson, a firefighter paramedic with the Los Angeles Fire Department, arrived at the scene. Ms. Lewis had a gash in her throat from ear to ear. Mr. Tumbleson described the injury: “It was pretty severe. I didn’t think she was going to make it. We definitely had inner anatomy showing of the esophagus, all the external—everything was showing. We had a severe bleeding, so I was assuming that external jugulars [were] lacerated since there was a lot of blood loss. [¶]... [T]his patient was very critical—she was having difficulty breathing due to the laceration to her neck....” After she regained consciousness, Mr. Tumbleson asked Ms. Lewis, “‘Who did this to you?’” Ms. Lewis said, “Trevor Broadnax.” Mr. Tumbleson asked Ms. Lewis the same question three more times just to confirm her answer. A Los Angeles Police Department detective, Bernard Pulliam, interviewed her in the hospital on April 26, 2006, two days after the assault. Ms. Lewis told Detective Pulliam that defendant was her attacker.
Defendant testified Ms. Lewis called him on April 23, 2006. She sounded upset. She said Mr. Hamidullah was uncomfortable with her relationship with defendant. The following day, April 24, 2006, defendant went to Ms. Lewis’s apartment. He saw Mr. Hamidullah’s car in the garage. Defendant “hit the buzzer” but there was no response. He walked in through the underground garage because the gate was open. Defendant knocked at the door and Ms. Lewis let him in. Then she just went upstairs. Defendant went to the kitchen and got a drink of water. He returned to the foot of the stairs. He heard a muffled argument going on. He could hear Ms. Lewis and Mr. Hamidullah talking back and forth, but it sounded like they were behind a closed door. Their tone of voice was what defendant characterized as “aggressive” in nature. But defendant characterized Mr. Hamidullah as the more aggressive of the two. Then defendant heard a door slam and a crashing sound. Defendant ran upstairs. Mr. Hamidullah threw something at defendant. According to defendant: “He had this look on his face. His eyes were bloodshot. It looked like... he was really pissed off at me.” Mr. Hamidullah attacked defendant with a steel bar. Mr. Hamidullah said, “‘Get out of here you son of a bitch.’” Defendant was afraid and ran out of the apartment.
A 12-year-old neighbor was home at the time of the assault. He testified he heard screaming. The neighbor saw a black woman standing near the front gate. She was crying. A man shouted to her: “‘Come back in. I am going to get you.’” The woman went back into Ms. Lewis’s apartment. The neighbor heard a door slam. A Los Angeles Police Officer, Francois Reese, spoke to the neighbor on the day of the incident. The neighbor said that at about 4:18 p.m., he heard someone yelling and screaming and a door slam.
Defendant was later arrested. When arrested, defendant lied and claimed he was named Theo Moore. Defendant testified Theo Moore was the name he used as an actor. But defendant did not know why he gave the officers that name. When arrested, defendant was wearing the same clothes he had been wearing when he visited Ms. Lewis’s apartment. Defendant had cocaine in his possession at the time of his arrest. Ms. Lewis’s blood was found on defendant’s clothing and shoes, as well as on the knife. No fingerprints were found on the knife, but that was a common outcome according to Detective Pulliam.
III. DISCUSSION
A. Evidence of Willful, Deliberate, and Premeditated Attempted Murder
Defendant argues that there was insufficient evidence to support the finding that he committed willful, deliberate and premeditated attempted murder. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
The California Courts of Appeal have held: “‘Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. “[T]he test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented.” The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. “The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]”’” (People v. Ibarra (2007) 151 Cal.App.4th 1145, 1152, quoting People v. Villegas (2001) 92 Cal.App.4th 1217, fns. omitted; People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)
In People v. Koontz (2002) 27 Cal.4th 1041, 1080, quoting People v. Mayfield (1997) 14 Cal.4th 668, 767, our Supreme Court held: “A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. (§ 189 [‘willful, deliberate and premeditated killing’ as first degree murder].) ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly....” [Citations.]’ [Citation.]”
In People v. Anderson (1968) 70 Cal.2d 15, 26, our Supreme Court identified three categories of evidence available to sustain a finding of premeditated murder—planning, motive, and intent. The Supreme Court later clarified, “The Anderson analysis was intended only as a framework to aid in appellate review, it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way.” (People v. Perez (1992) 2 Cal.4th 1117, 1125; see also People v. San Nicolas (2004) 34 Cal.4th 614, 658; People v. Mayfield, supra, 14 Cal.4th at p. 768; People v. Sanchez (1995) 12 Cal.4th 1, 32, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.22.) In People v. Manriquez (2005) 37 Cal.4th 547, 577, the Supreme Court reiterated: “[W]e continue to apply the principle that ‘[t]he process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection....” [Citations.]’ [Citations.]” (Ibid., quoting People v. Hughes (2002) 27 Cal.4th 287, 370-371.) In People v. Smith (2005) 37 Cal.4th 733, 741-742, quoting People v. Arias (1996) 13 Cal.4th 92, 162, our Supreme Court held: “‘[I]f the jury found defendant's use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.’ [Citation.]... [M]otive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice.” (Original italics.)
Here, there was substantial circumstantial evidence to support the jurors’ willfulness, deliberation, and premeditation finding. Ms. Lewis was defendant’s close, and at times intimate, friend. Ms. Lewis had been supportive of defendant, financially and otherwise, for some time. She had allowed defendant to stay in her apartment, rent-free, for about eight months. But Ms. Lewis was involved in an intimate relationship with her roommate, Mr. Hamidullah. And Mr. Hamidullah was unhappy because defendant did not contribute to rent or other living expenses. About two or three weeks prior to the attack, Ms. Lewis asked defendant to move out of her apartment. Defendant expressed animosity towards Ms. Lewis because she wanted him to move. A couple of weeks prior to the attack, Ms. Lewis found a knife from the kitchen in her room. Defendant had slept there the preceding night. Ms. Lewis returned the knife to the kitchen. On the day of the attack, defendant telephoned Ms. Lewis to determine when she, as opposed to her roommate, Mr. Hamidullah, would be home. Defendant knocked on Ms. Lewis’s door, surprising her, rather than buzzing from the security gate as was usually done. Defendant entered Ms. Lewis’s apartment and was received by her in a manner that was cordial but not warm. He went directly to the kitchen and returned immediately with a knife. Defendant slit Ms. Lewis’s throat while her back was to him. The wound was very severe. The decision to retrieve a knife in order to perpetrate the assault supported a premeditation and deliberation finding. (People v. Koontz, supra, 27 Cal.4th at pp. 1081-1082; People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.) A rational juror could conclude from the manner of killing alone that defendant intended Ms. Lewis’s death would result. (People v. Memro (1995) 11 Cal.4th 786, 863-864; People v. Hawkins (1995) 10 Cal.4th 920, 956-957, disapproved on another point in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Vorise (1999) 72 Cal.App.4th 312, 318-319.)
B. Instructional Error
Defendant argues the trial court had a sua sponte duty to instruct the jury concerning willfully false statements and consciousness of guilt. The prosecutor argued evidence defendant gave police a false name. CALJIC No. 2.03 states: “If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” Defendant did not request the instruction and the trial court had no sua sponte duty to give it. (People v. Najera (2008) 43 Cal.4th 1132, 1139; see People v. Carter (2003) 30 Cal.4th 1166, 1197-1198; People v. Collie (1981) 30 Cal.3d 43, 63-64; Bench Note to CALCRIM No. 371 (2008) p. 138.) Defendant has therefore forfeited the issue. (People v. Marks (2003) 31 Cal.4th 197, 236-237; People v. Weaver (2001) 26 Cal.4th 876, 986; People v. Arias, supra, 13 Cal.4th at p. 171.) People v. Atwood (1963) 223 Cal.App.2d 316, 332-333, on which defendant relies, does not compel a different result. (People v. Najera, supra, 43 Cal.4th at p. 1139, fn. 3; People v. Carter, supra, 30 Cal.4th at pp. 1197-1198.) Even if not forfeited, any error in giving CALJIC No. 2.03 was harmless under any prejudice-based standard of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.) Ms. Lewis knew her attacker very well. Immediately following his assault on her, Ms. Lewis thought she was going to die. She ran up the stairs and told Mr. Hamidullah: “‘Trevor just cut me. Trevor just cut my throat.’” Paramedics responded to the scene. Mr. Tumbleson, a firefighter paramedic, did not think Ms. Lewis would survive. Mr. Tumbleson asked the victim three or more times, “‘Who did this to you?’” And each time Ms. Lewis told Mr. Tumbleson, “Trevor Broadnax.’” Two days later, a Los Angeles Police Department detective interviewed Ms. Lewis in the hospital. Ms. Lewis told Detective Pulliam that defendant had slit her throat. Ms. Lewis’s blood was found on defendant’s clothing and shoes.
C. Impeachment Evidence
Defendant contends a reversal of his conviction is required because the trial court disallowed impeachment with respect to Ms. Lewis’s record of two arrests for petty theft—on August 20, 1998, and January 27, 2001. There was no record of a conviction in either matter. The trial court ruled, “[I]f there are no convictions, I would not allow any inquiry.” This was not an abuse of discretion. (People v. Quartermain (1997) 16 Cal.4th 600, 623; People v. Wheeler (1992) 4 Cal.4th 284, 296-297.) Even if the exclusion of such impeachment evidence was an abuse of discretion, in light of the overwhelming evidence of defendant’s guilt, it is not reasonably probable the verdict would have been more favorable to defendant had the evidence of the victim’s prior petty theft arrests been admitted. (People v. Marks, supra, 31 Cal.4th at p. 299; People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Evidence Of The Contents of Defendant’s Gym Bag
On direct examination, defendant testified that when he moved out of Ms. Lewis’s apartment: he left a gym bag behind; the gym bag contained “two sweat suits, some socks, some underwear, just little things like that”; and because he worked out twice a day, he changed his clothes frequently. The prosecutor, Deputy District Attorney Frederick Mesropi, sought on cross-examination to ask defendant about: other items found in the gym bag, including three vials and multiple syringes; and his knowledge and use of steroids. Defense counsel objected on relevance and undue prejudice grounds. Defense counsel asserted there was no evidence the vials contained steroids. Defense counsel explained: “I think they are prejudicial. Under 352, inference of what is described, what I have heard as steroid rage or roid-rage, some theory apparently Mr. Mesropi has to explain why Mr. Broadnax would have committed this heinous act. And there is no evidence he was under the influence of anything or that he acted subject to any drug or anything like that. So I would ask that the court exclude that.” The trial court ruled: “[Y]ou cannot call them steroids, but... [¶]... You can ask what they were for [¶]... Because it goes to his credibility of saying yesterday that he only had gym clothes.” Defendant subsequently testified, without objection, that the items in his gym bag that he had not testified to earlier included, among other things: a brown vial containing liquid and the writing QV on it; a second brown clear vial with trembline QV written on it; a third vial containing a white tablet labeled Genason; and at least four or five syringes.
On appeal, defendant argues the foregoing evidence was irrelevant and prejudicial. Defendant asserts: “While the prosecutor never mentioned the word ‘steroids’ before the jury, the description of the vials labeled ‘QV’ and ‘Trembline [sic] QV’ and the presence of syringes clearly informed the jury of the nature of contents of the vial and permitted the jury to infer that appellant was, in fact, a steroid user and may have been under the influence of steroids at the time of the attack. Furthermore, even if none of the jurors were familiar with steroids or the types typically used by bodybuilders, to increase their body mass, the fact that [defendant] had what appeared to be narcotics and syringes in his gym bag was irrelevant to any material issue and any slight probative value was greatly outweighed by the prejudicial impact. Reversal of [defendant’s] conviction is, therefore, required.”
A trial court has discretion to admit or exclude relevant evidence offered for impeachment under Evidence Code section 352. (People v. Rodriguez, supra, 20 Cal.4th at p. 9; People v. Douglas (1990) 50 Cal.3d 468, 509.) A trial court’s Evidence Code section 352 ruling as to relevance and undue prejudice is reviewed for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 612; People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; People v. Rowland (1992) 4 Cal.4th 238, 264.) We find no abuse of discretion. The testimony was solicited to show that defendant was dishonest when he said his gym bag contained clothing and things of that sort. It did not, as defendant contends, support any reasonable inference as to steroid use or induced rage contributing to the crime. There was no reference to steroids. And there was no mention or inference of steroid induced rage. The same analysis applies to defendant’s constitutional contention. (People v. Partida (2005) 37 Cal.4th 428, 436; People v. Garcia (2008) 168 Cal.App.4th 261, 275.) Even if the trial court abused its discretion, given the compelling evidence in this case, there is no reasonable probability of a result more favorable to defendant. (People v. Marks, supra, 31 Cal.4th at p. 222; People v. Watson, supra, 46 Cal.2d at p. 836.)
E. Cumulative Error
Defendant argues the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Watson (2008) 43 Cal.4th 652, 705; People v. Boyette (2002) 29 Cal.4th 381, 467-468; People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692.) Defendant received a fair trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey, supra, 2 Cal.4th at p. 454; People v. Miranda (1987) 44 Cal.3d 57, 123, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
F. Court Security Fee
Following our request for further briefing, the Attorney General contends the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each of the two counts for which defendant was convicted. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Two section 1465.8, subdivision (a)(1) court security fees must be imposed.
G. Deoxyribonucleic Acid Penalties
The trial court imposed a $20 deoxyribonucleic acid penalty. Government Code section 76104.6, subdivision (a) provides for the imposition of a $10 penalty for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act to be levied on every fine, penalty, or forfeiture imposed in felony and other cases. Government Code section 76104.7 provides for an additional deoxyribonucleic acid state-only penalty. The Government Code section 76104.7, subdivision (a)(1) deoxyribonucleic acid state-only penalty is only imposed in addition to the similar penalty imposed pursuant to Government Code section 76104.6, subdivision (a). We asked the parties to brief the question whether it was error to impose the penalty. We agree with the Attorney General that no Government Code section 76104.6, subdivision (a) or Government Code section 76104.7, subdivision (a) penalty may be imposed on a section 1465.8, subdivision (a)(1) court security fee, or on the restitution and parole revocation restitution fines (§ 1202.4, subd. (e); People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.) The $20 deoxyribonucleic acid penalty must be reversed and stricken. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The $20 deoxyribonucleic acid penalty is reversed and stricken. An additional $20 section 1465.8, subdivision (a)(1) court security fee must be imposed. The judgment is affirmed in all other respects. Upon remittitur issuance and the modification of judgment, the clerk is to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: ARMSTRONG, J. KREIGLER, J.