P. v. Payne
Filed 3/21/13 P. v. Payne CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
AARON T. PAYNE,
Defendant and Appellant.
B242452
(Los Angeles
County
Super. Ct.
No. TA120886)
APPEAL
from a judgment of the Superior
Court of
County.
John Joseph Cheroske, Judge. Affirmed as modified.
Gloria
C. Cohen, 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, Linda C. Johnson and
Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Pursuant to a negotiated
contest to assault with a deadly weapon and admitted an allegation that he
personally inflicted great bodily injury.
(Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a).)
prior serious felony convictions. (Pen.
Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd.
(a)(1).) The trial court sentenced Payne
to state prison for an aggregate term of 17 years in accord with the plea agreement.
The trial
court imposed a series
of fines, fees and assessments, one of which is the subject of Payne’s current
appeal. The court imposed a $40 court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Gov. Code, § 70373), a restitution fine in the
amount of $4,080 (Pen. Code, § 1202.4, subd. (b)), and a corresponding
parole revocation fine, which was stayed (Pen. Code, § 1202.45). As relevant to Payne’s appeal, the court
ordered Payne to provide a deoxyribonucleic acid (DNA) sample and, to pay a DNA
penalty pursuant to Government Code section 76104.7 in the amount of $20.
DISCUSSION
Payne
contends the trial court erred in imposing the $20 DNA penalty pursuant to
Government Code section 76104.7. The
People concede error, and we rule that the DNA penalty must be stricken. The statutes prescribe two DNA
penalties. Government Code section
76104.6 provides that a trial court shall levy a DNA penalty, calculated in
relation to every fine, penalty or forfeiture imposed for all criminal
offenses, except as otherwise provided by law.
Under Government Code section 76104.7, a trial court shall impose a DNA
penalty, to be used for specifically stated purposes, in addition to a DNA penalty levied under Government Code section
76104.6. Here, because the trial court
did not impose a DNA penalty under Government Code section 76104.6, an
“additional†DNA penalty under Government Code section 76104.7 should not
have been imposed. (People v. Valencia (2008) 166 Cal.App.4th
1392, 1394-1396.)
The People
further recognize that a DNA penalty under Government Code section 76104.6 may
not be imposed now by way of Payne’s current appeal, to correct an error in
failing to impose a mandatory sentencing provision. There is no mandatory sentencing error
because a DNA penalty under Government Code section 76104.6 does not apply to
any of the fines and assessments imposed by the trial court. (See Pen. Code, §§ 1202.4, subd. (d),
1465.8, subd. (b); Gov. Code, §§ 70373, subd. (b), 76104.7, subd. (c); and
see also People v.
1394-1396.)
DISPOSITION
The $20 DNA
penalty imposed pursuant to Government Code section 76104.7 is stricken. The judgment is affirmed in all other
respects. The trial court is directed to
issue a new abstract of judgment in accord with this opinion.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES,
J.
name="_ftn1" title="">[1]
probation officer’s report indicates:
Los Angeles County Sheriff’s Department officers responded to a local
hospital where they spoke with the victim of a reported assault. According to the victim, he and Payne lived
at a group home for people with drug and alcohol abuse problems. Payne became angry when the lights were on in
the room. When the victim told Payne to
turn off the lights himself if he wanted them off, Payne responded, “Let’s take
it outside.†As soon as they got to
the front yard, Payne began punching the victim, then grabbed a milk crate and
began hitting the victim in the face with the milk crate. Paramedics responded to the scene, and took
the victim to the hospital. The victim
sustained a large U-shaped laceration on his forehead. The injury caused a flap of skin to hang down
over his face. The laceration required
52 stitches.
