Opinion
B229408
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. TOMMY ALFRED SANDERS, Defendant and Appellant.
Julie Sullwold for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. TA113034
APPEAL from a judgment of the Superior Court of Los Angeles County. Joel Wallenstein, Temporary Judge. Modified with directions and affirmed.
Julie Sullwold for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
Tommy Alfred Sanders appeals the judgment entered following his conviction based on his no contest plea to willful failure to file a change of address (Pen. Code, § 290.013, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends and the People acknowledge the DNA penalty assessment imposed under Government Code section 76104.7 should be stricken. We agree and strike the $20 penalty assessment and order the abstract of judgment corrected accordingly.
FACTS
Because appellant does not challenge the sufficiency of the evidence, we summarize the case without unnecessary detail.
Appellant suffered a prior conviction for which he was required to register as a sex offender. Appellant changed his residence but failed to file a change of address, within the meaning of section 290.013, subdivision (a). He pled no contest.
The court sentenced appellant to two years in state prison and imposed a $200 victim restitution fine (§ 1202.4, subd. (b)), a $30 court security fee (§ 1465.8), a $30 court construction fine (Gov. Code, § 70373), a $20 DNA penalty assessment (Gov. Code, § 76104.7), and imposed and stayed a $200 parole revocation fee (§ 1202.45).
DISCUSSION
Appellant contends the trial court erred when it imposed a $20 DNA penalty assessment under Government Code section 76104.7. Respondent concedes that appellant is correct and that the DNA penalty assessment should be stricken.
Government Code section 76104.7, subdivision (a), provides in pertinent part: "Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), . . . in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ." In this case, the trial court did not impose an assessment under Government Code section 76104.6. Consequently, an assessment under Government Code section 76104.7 cannot be imposed.
Moreover, there was no fine, penalty, or forfeiture imposed that supported a DNA penalty assessment under either Government Code section 76104.6 or Government Code section 76104.7. The trial court imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b), and imposed and stayed a parole revocation restitution fine in the same amount pursuant to section 1202.45. By its express terms, the DNA penalty assessment does not apply to a restitution fine. (Gov. Code, § 76104.7, subd. (c)(1).) Nor does it apply to the court security fee imposed under section 1465.8. (See § 1465.8, subd. (b) ["The penalties authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and the state surcharge authorized by Section 1465.7, do not apply to this charge"]; see also People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.) Finally, the criminal conviction assessment for court facilities imposed under Government Code section 70373 does not carry a DNA penalty assessment. (Gov. Code, § 70373, subd. (b).) Thus, the $20 DNA penalty assessment must be stricken.
DISPOSITION
The judgment is modified to strike the $20 DNA penalty assessment under Government Code section 76104.7. The Clerk of the Superior Court of Los Angeles County is directed to prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________, J.
DOI TODD
We concur:
_______________, P. J.
BOREN
_______________, J.
CHAVEZ