People v. Cota CA6

Filed 7/10/14 P. v. Cota CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040332 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1239992)

v.

JAIME COTA,

Defendant and Appellant.

Defendant Jaime Cota pleaded no contest to several sex offenses all of which were alleged to have occurred in May 2000. He was sentenced to a total of five years in prison and ordered to pay various fines and penalties, including a $300 fine, plus penalty assessment pursuant to Penal Code section 290.3, subdivision (a).1 On appeal, Cota argues this fine must be reduced because at the time the offenses were committed the fine provided under section 290.3, subdivision (a) was only $200. He also argues that the corresponding penalty assessment must be recalculated to reflect the lower fine. The People concede the issues, and we agree the concession is appropriate. We will therefore modify the judgment to reflect the proper fine and penalty assessment and affirm the judgment as modified.

1 Further unspecified statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND2 On May 15, 2000, Santa Clara County Sheriff’s deputies responded to a report of a rape. The victim was a woman in her late 40s who requires a wheelchair to get around. She lived in a special housing complex and was taking out her garbage one evening when a man approached her from behind. The man told her to be quiet or he would hurt her. He directed her to return to her apartment, and he followed, redirecting her wheelchair when she tried to go a different direction. The man pushed her wheelchair into the apartment, then assaulted her in her bedroom. She provided a description of the subject to the deputies, and a DNA sample was obtained from a bite mark on the victim’s breast. However, no immediate match was made and no suspect identified. In March 2011, the Department of Justice notified the Santa Clara County Crime Laboratory that a “DNA CODIS hit”3 had been made, implicating Cota. Cota was interviewed by a detective in March 2012, who determined Cota was a maintenance worker at the victim’s apartment complex in May 2000. Cota agreed to provide a DNA sample, which matched the sample taken from the victim, and he was subsequently arrested. Cota was charged by information with two counts of forcible oral copulation (§ 288a, subd. (c)(2), counts 1 & 3), one count of forcible digital penetration (§ 289, subd. (a)(1), count 2) and one count of attempted forcible rape (§ 664, 261, subd. (a)(2), count 4). The information further alleged that the forcible oral copulation and digital penetration were committed in the commission of a kidnapping and burglary within the