P. v.
Contreras
Filed 12/6/12 P. v. Contreras CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANDRES CONTRERAS,
Defendant
and Appellant.
B240066
(Los Angeles County
Super. Ct. No. TA119321)
APPEAL from a judgment of the Superior Court of
County. Ricardo R.
Ocampo, Judge. Reversed in part,
affirmed in part, and remanded with directions.
Jonathan B. Steiner and Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne and Shira B. Seigle, Deputy Attorneys
General, for Plaintiff and Respondent.
_____________________
Andres Contreras appeals from the judgment entered
upon his conviction of assault with intent to commit rape (Pen. Code,
§ 220, subd. (a)) by plea of no contest.
Pursuant to the plea agreement,
the trial court sentenced appellant to the middle term of four years in state
prison. It also imposed a $40 court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Govt. Code, § 70373),
76104.7),
title="">[2] a $240 restitution fine (Pen. Code,
§ 1202.4, subd. (b)), and imposed and stayed an equal parole revocation
fine (Pen. Code, § 1202.45).
Appellant contends that the DNA fine is improper because it is not a
“stand-alone fee†and thus may only be imposed when there are other properly
imposed fines to which the DNA fine can attach.â€
DISCUSSION
Appellant’s sole contention on this appeal is that the DNA
fine contained in section 76104.7 was not properly imposed. He argues that that fine can only be assessed
in conjunction with other specified fines and assessments, none of which was
imposed here. The People agree with
appellant. We do also.
At the time of sentencing, section
76104.7 provided in pertinent part:
“(a) 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), 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 . . . [¶] . . . [¶] This additional penalty does not apply to the
following: [¶] (1) Any restitution fine.â€
The trial court appears to have imposed a section
76104.7, subdivision (a)(1) DNA penalty.
That penalty is only imposed “in addition to†the similar penalty
imposed pursuant to section 76104.6, subdivision (a). This “in addition to†language suggests that
the penalty in section 76104.7 can only be imposed if the DNA penalty in
section 76104.6 is also imposed. Thus,
if the trial court’s oral pronouncement of judgment is construed to impose the
section 76104.7 penalty, it cannot be imposed here because the section 76104.6,
subdivision (a)(1) penalty was not imposed.
(People v.
Even if the trial court’s oral
pronouncement of judgment intended to impose the DNA penalty in section
76104.6, no DNA penalty under that section or section 76104.7 can be
imposed. All of the nonDNA penalties and
assessments imposed in this case specifically provide that the DNA penalties
are inapplicable to them. (Pen. Code,
§ 1465.8, [court operations assessment provides in subdivision (b) that,
“The penalties authorized by Chapter 12 (commencing with Section 76000) of
Title 8 of the Government Code . . . do not apply to this
assessmentâ€]; § 70373 [criminal conviction assessment provides in subdivision
(b) that, “The penalties authorized by Chapter 12 (commencing with Section
76000) . . . do not apply to this assessmentâ€]; Pen. Code,
§ 1202.4, subd. (b) [restitution fine provides in subdivision (e), “The
restitution fine shall not be subject to penalty assessments authorized
in . . . Chapter 12 (commencing with Section 76000) of
Title 8 of the Government Codeâ€]; Pen. Code, § 1202.45 [parole revocation fine
provides, “This additional parole revocation restitution fine shall not be
subject to penalty assessments authorized by . . . Chapter
12 (commencing with Section 76000) of Title 8 of the Government
Code, . . .â€].)
As a result there are no fines or
penalties that have been imposed against appellant to which the DNA penalty in
sections 76104.6 or 76104.7 can apply.
Therefore, the DNA penalty in section 76104.7 must be stricken.
DISPOSITION
The DNA penalty within section 76104.7 is stricken, and the
judgment is otherwise affirmed. On
remand the trial court is directed to correct the abstract of judgment
accordingly.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further statutory references are to the Government Code unless otherwise
indicated.
name="_ftn2" title="">[2] Though
not discussed by the parties, the oral pronouncement of judgment states only
that the trial court was imposing “a DNA Fee of $20.†It did not specify if that penalty was being
imposed under section 76104.6 or 76104.7, though the abstract of judgment and
minute order of the sentencing indicate that it was imposed under the latter
code section. Given our analysis, we
find no basis for a DNA penalty under either code section.
