Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA053017. John S. Fisher, Judge.
Benjamin Owens, 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, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
A jury convicted defendant and appellant Giorgio Trabucco (defendant) of eight counts of receiving stolen property. (Pen. Code, § 496, subd. (a).) The trial court sentenced defendant to the low term of 16 months in state prison on one count, and imposed concurrent 16-month sentences on each of the remaining seven counts. The trial court also imposed a restitution fine of $200; a $200 parole revocation restitution fine, stayed; direct victim restitution of $1,300; a $20 DNA penalty; and a $20 court security fee. Defendant received 21 days of custody credit, consisting of 14 days of actual custody and 7 days of conduct credit. We modify the judgment to (1) impose a court security fee for each of defendant’s eight convictions; (2) strike the DNA penalty; and (3) correct the calculation of defendant’s presentence credits. We affirm the judgment as modified.
BACKGROUND
Bruce Johannesson, professionally known as C.C. DeVille, is the lead guitarist for the rock band Poison. In October 2005, Johannesson was incarcerated in the Los Angeles County Jail for approximately 24 hours on a misdemeanor D.U.I. charge. When he returned home, he discovered that someone had forced entry to his house, and that nearly two dozen guitars and some guitar amplifiers were missing. After reporting the crime to police, Johannesson alerted contacts within the music community that his guitars had been stolen.
Shortly thereafter, two of Johannesson’s guitars were discovered being sold on eBay. Guitars and amplifiers belonging to Johannesson also were discovered at Guitar Center and Sam Ash stores and at two pawn shops. The parties stipulated that defendant sold five of Johannesson’s guitars to Guitar Center and Sam Ash locations, and sold amplifiers belonging to Johannesson to two pawn shops. A guitar that had been custom made for Johannesson was recovered by police during a search of defendant’s home.
Defendant testified that Johannesson had authorized him to sell the guitars and amplifiers. He testified that Johannesson had gifted to him the guitar that was recovered by police from his house.
DISCUSSION
We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief raising no issues, but requesting this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436. On January 31, 2008, we gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. We received no response from defendant. We have conducted an independent review of the record.
Our review of the record indicates that defendant’s sentence was unauthorized in three respects. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) We may correct an unauthorized sentence on direct appeal. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Smith (2001) 24 Cal.4th 849, 852.)
First, the trial court imposed one $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1). The trial court should have imposed one $20 court security fee for each of defendant’s eight convictions, for a total of $160. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see also People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.)
Second, the trial court imposed a DNA penalty of $20 pursuant to Government Code section 76104.7. Subdivision (a) of section 76104.7 provides, “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 one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . .” Pursuant to recently enacted amendments, the DNA penalty does not apply to restitution fines. (Gov. Code, § 76104.7, subd. (c)(1).) The amendments operate retroactively, and apply to this case. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1257.) Because the only fine imposed by the trial court and not stayed was a restitution fine, the judgment must be modified to strike the DNA penalty.
Finally, the trial court incorrectly calculated defendant’s custody credits. Presentence custody credits are earned at the rate of six days for every four days of actual custody. (Pen. Code, § 4019, subds. (a)(4), (f).) Prior to sentencing, defendant spent three four-day periods in actual custody. Defendant was therefore entitled to 20 days of presentence credit, consisting of 14 days of actual custody and six days of conduct credit. (People v. Fabela (1993) 12 Cal.App.4th 1661, 1663-1664.)
DISPOSITION
The judgment is modified to (1) impose a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) for each of defendant’s eight convictions, for a total of $160; (2) strike the $20 DNA penalty imposed pursuant to Government Code section 76104.7; and (3) reflect that defendant is entitled to 20 days of presentence credit. The judgment is affirmed as modified. The clerk of the superior court is directed to correct the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: TURNER, P. J., ARMSTRONG, J.