P. v.
Filed 6/27/12 P. v. Pickering CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT PICKERING,
Defendant and
Appellant.
2d Crim. No.
B235918
(Super. Ct. Nos. TA104159, TA119002)
(Los Angeles County)
Robert
Pickering appeals the judgment entered after he pled no contest to four counts
of commercial burglary (Pen. Code,
The trial court sentenced appellant to five years in
$200 restitution fine (§ 1202.4, subd. (b)), a $160 court security
assessment (§ 1465.8, subd. (a)(1)), a $120 criminal conviction assessment
(Gov. Code, § 70373), and a $20 DNA penalty assessment (Gov. Code,
§ 76104.7). The court also imposed
and stayed a $200 parole revocation restitution fine (§ 1202.45) and
awarded appellant 10 days presentence custody credit.
Appellant's sole
contention on appeal is that the court erred in imposing a $20 DNA penalty
assessment pursuant to Government Code section 76104.7. The People correctly concede the point.
Government Code sections
76104.6 and 76104.7, which were enacted for the purpose of implementing the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69),
state in pertinent part that an additional penalty shall be levied "upon
every fine, penalty, or forfeiture imposed and collected by the courts for all
criminal offenses." (Gov. Code,
§§ 76104.6, subd. (a), 76104.7, subd. (a).) Here, the court did not impose any fine,
penalty, or forfeiture for which the additional penalty is authorized. The statutes expressly provide that the
penalty does not apply to restitution fines imposed under sections 1202.4 and
1202.45. (Gov. Code, §§ 76104.6,
subd. (a)(3)(A), 76104.7, subd. (c)(1).)
Criminal conviction assessments imposed under Government Code section
70373 are also excluded (Gov. Code, § 70373, subd. (b)), as are court
security assessments imposed under section 1465.8 (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396). Because these are the only fines and
assessments imposed against appellant, the $20 DNA penalty assessment is
unauthorized and must be stricken.
DISPOSITION
The $20 DNA penalty
assessment imposed under Government Code section 76104.7, is stricken. The superior court clerk shall prepare an
amended abstract of judgment reflecting this modification and forward a
certified copy to the Department
of Corrections and
Rehabilitation. As so
modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Joel
Wallenstein, Judge
Superior
Court County of Los Angeles
______________________________
Lenore De Vita, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Yun K. Lee, Deputy Attorney General, for Plaintiff and
Respondent.
are to the Penal Code.
appellant's probation following his no contest plea to grand theft person (§
487, subd. (c)). The court imposed a
16-month state prison term and ordered it to run concurrent to the five-year
sentence imposed in case number TA119002.
