P. v. Murray
Filed 1/18/13 P. v. Murray CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
LATRICE
STARVEL MURRAY,
Defendant and Appellant.
B240207
(Los Angeles County
Super. Ct. No. TA112263)
APPEAL
from a judgment of the Superior Court of
County, Pat Connolly, Judge.
Reversed in part; affirmed in part.
James
R. Bostwick, Jr., 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, Steven D. Matthews,
Roberta L. Davis and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted defendant, Latrice
Starvel Murray, of petty theft with a prior conviction. (Pen. Code,
name="_ftnref2" title="">[2] Defendant’s three-year
sentence was doubled under sections 667, subdivisions (b) through (i) and
1170.12, and enhanced one year pursuant to section 667.5, subdivision (b). Defendant's total
sentence is seven years. Although
she admitted the truth of four prior convictions allegations, defendant argues:
she never admitted that she served time in state prison for any of those
convictions; she did not admit she remained free of prison custody for a period of five
years; and the prosecution offered no evidence to that effect. We disagree.
The
information alleged defendant had served a prior separate prison term within
the meaning of section 667.5, subdivision (b):
“It is further alleged as to count(s) 1 pursuant to Penal Code section
667.5(b) that the defendant(s), LATRICE STARVEL MURRAY, has suffered the
following prior conviction(s): [¶] [a petty theft conviction on January 19,
2005, in Los Angeles Superior Court case No. LA047400] [¶]
and that a term was served as described in Penal Code section 667.5 for
said offense(s), and that the defendant did not remain free of prison custody
for, and did commit an offense resulting in a felony conviction during, a
period of five years subsequent to the conclusion of said term.†Defendant, who was represented by counsel,
admitted the prior conviction allegation: “[F]irst, the allegation that you suffered a
prison prior, within the meaning of Penal Code section 667.5(b), in case L like
lamb, A like apple, 047400, for a violation of Penal Code section 666, and a
conviction date of . . . January 19, 2005. [¶] . . . [¶] [Deputy District Attorney Richard J.]
Dreiling: Are you willing
to . . . stipulate that you suffered that prior conviction? [¶]
The Defendant: Yes. [¶]
Mr. Dreiling: Does counsel
join? [¶] [Deputy Public Defender Delia] Metoyer: Yes.â€
We
consider defendant’s admission in light of the totality of the
circumstances. (People v. Carrasco (2012) 209 Cal.App.4th 715, 725; see
356.) Under the totality of the
circumstances, defendant admitted she served a prior separate prison term
within the meaning of section 667.5, subdivision (b). (See People
v. Ebner (1966) 64 Cal.2d 297, 303-304; People
v. Carrasco, supra, 209 Cal.App.4th at pp. 724-725; People v. Jones (2009) 178 Cal.App.4th 853, 859, fn. 3;
51, 61; People v. Welge (1980) 101
Cal.App.3d 616, 623-624.)
The
trial court orally imposed “a [deoxyribonucleic acid] fee of $20.†The abstract of judgment includes a
“[deoxyribonucleic acid] fine of $20.00 per [Government Code section]
76104.7.†This was error. No deoxyribonucleic acid penalty can be
imposed on: a restitution fine (§ 1202.4,
subd. (e)); a parole revocation restitution fine (§ 1202.45); a court
security fee (§ 1465.8, subd. (b)); or a court facilities assessment (Gov.
Code, § 70373, subd. (b)). (See
Cal.App.4th 1392, 1395-1396.) Nor can
the order be construed as entered under section 295, subdivision (j); no
section 1203.1c, 1203.1e, or 1203.1m cost order was imposed. The $20 deoxyribonucleic acid fine must be
reversed.
The
$20 deoxyribonucleic acid fine is reversed.
In all other respects, the judgment is
affirmed. Upon remittitur issuance, the
clerk of the superior court shall: amend
the abstract of judgment to delete the deoxyribonucleic acid fine; and deliver
a copy of the
amended abstract of judgment to the
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK,
J.
KRIEGLER, J.
references are to the Penal Code.
committed the present offense, section 666 read: “Every person who, having been convicted of
petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code,
burglary, carjacking, robbery, or a felony violation of Section 496 and having
served a term therefor in any penal institution or having been imprisoned
therein as a condition of probation for that offense, is subsequently convicted
of petty theft, then the person convicted of that subsequent offense is
punishable by imprisonment in the county jail not exceeding one year, or in the
state prison.†(Stats. 2000, ch. 135, §
134.)
