Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F1560
SIMS, Acting P. J.Defendant Dale Allen Pierce, Jr., appeals from the trial court’s imposition of various fines and penalties following his conviction for receiving stolen property (Pen. Code, § 496 ) and driving under the influence of alcohol (Veh. Code, § 23152). The People concede error as to some of the charges. We shall modify the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On January 27, 2008, a police officer conducted a traffic stop of a vehicle driven by defendant. The officer smelled alcohol on defendant’s breath. Defendant initially refused to perform any field sobriety tests. Upon learning defendant was on parole and searching defendant, the officer found two California Identification cards and three Social Security cards belonging to victims whose car was stolen on January 6, 2008. More than an hour after the initial stop, defendant agreed to a breath test, which revealed a blood alcohol level of.072.
In May 2008, a jury found defendant guilty of receiving stolen property (§ 496, subd. (a)) and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)).
Defendant waived jury trial on the allegations that he had three prior prison terms (§ 667.5, subd. (b)) and two prior convictions for driving under the influence (Veh. Code, § 23540). The trial court found true the first two prior prison term allegations, but not the third. The court found true both prior DUI convictions.
On July 18, 2008, the trial court sentenced defendant to five years in prison as follows: The upper term of three years for the property crime, plus two consecutive one-year enhancements enhancements (§ 667.5, subd. (b)); and a one-year concurrent term for the DUI.
The trial court imposed a $40 court security fee (§ 1465.8), which is unchallenged on appeal.
The court also imposed a total of $2,405 in fines and penalties on the DUI conviction (which were not noted in the presentence report), broken down as follows:
$620
(Veh. Code, § 23536)
$ 50
(§ 1463.14)
$ 50
(§ 1463.16)
$ 20
(§ 1463.18)
$740
(§ 1464, subd. (a))
$ 74
(Gov. Code, § 76104.6)
$ 74
(Gov. Code, § 76104.7)
$111
(Gov. Code, § 70372)
$518
(Gov. Code, § 76245)
$148
(§ 1465.7).
Thus, the trial court imposed $2,405 in fines and penalties for the DUI conviction.
DISCUSSION
Defendant’s opening brief contends that some of the DUI fines and penalties were imposed erroneously. Defendant does not dispute the $620 DUI fine under Vehicle Code section 23536. He challenges the other DUI penalties and contends the total should be $1,891 instead of $2,405. The People concede trial court error but respond the total should be $2,015. Defendant’s reply brief states, “Appellant does not contest the aggregated amount suggested by respondent.”
We accept the People’s concession of trial court error, as stated in the respondent’s brief as follows:
The trial court incorrectly imposed fees pursuant to sections 1463.14, 1463.16, and 1463.18. These statutes instruct the county treasurer regarding allocation of money collected as criminal fines in DUI cases. Thus, of the criminal fines collected, $50 must be deposited in a special account to pay for blood alcohol tests (§ 1463.14), $50 must be deposited in a special account to pay for alcohol programs (§ 1463.16), and $20 must be deposited into the Restitution Fund (§ 1463.18). The trial court, however, incorrectly imposed these amounts as additional fines in calculating the state penalty assessment. No additional amounts should have been imposed under sections 1463.14, 1463.16, or 1463.18.
Next, the state penalty assessment imposed under section 1464, subdivision (a), should be $620, not $740. Section 1464, subdivision (a), provides that the court shall impose a state penalty of $10 for every $10 imposed as a fine for a criminal offense. Here, the court imposed a base fine of $620 under Vehicle Code section 23536. Therefore, the section 1464 penalty should have been $620.
Next, the two $74 penalties under Government Code sections 76104.6 and 76104.7 should each be reduced to $62. These statutes, which levy penalties to be used for county and state DNA Identification Funds, each set the amount of the penalty at $1 for every $10 of the base fine for the criminal offense. Since the base fine here is $620, these penalties should be $62 each.
Next, the state court construction penalty (Gov. Code, § 70372) should be $93, not $111. The statute sets the penalty at $5 for every $10 of the fine, but allows counties to reduce this penalty, and the parties agree Shasta County imposes $1.50 for every $10 of fine. (Gov. Code, § 70372, subd. (a); Uniform Bail & Penalty Schedules, Cal. Rules of Court, rule 4.102.) Thus, the parties agree this penalty should be $93.
Next, the trial court miscited Government Code section 76245 as authority for a $518 penalty. The cited statute merely sets forth the name of Shasta County’s court construction fund. It appears the court meant to impose the penalty under Government Code section 76000, which authorizes an additional county penalty of $7 for every $10 of fine. Since the base fine is $620, this penalty should be $434.
Finally, the trial court incorrectly imposed a $148 surcharge pursuant to section 1465.7, which provides for a 20 percent surcharge on the base fine used to calculate the state penalty assessment imposed under section 1464. The correct figure (20 percent of $620) is $124.
Thus, the trial court’s total of $2,405 for the DUI fines/penalties was incorrect.
The correct total of the DUI fines/penalties is $2,015.
DISPOSITION
The judgment is modified to show the following DUI fines and penalties: $620 (Veh. Code, § 23536); $620 (§ 1464); $62 (Gov. Code, § 76104.6); $62 (Gov. Code, § 76104.7); $93 (Gov. Code, § 70372); $434 (Gov. Code, § 76000); and $124 (§ 1465.7); for a total of $2,015.
The judgment is otherwise affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.