People v. Baker CA3

California Court of Appeal Sep 23, 2014 No. C073976Unpublished

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Holding. The court modified the defendant's sentence to reduce a DNA penalty assessment, strike an unauthorized no-visitation order, and correct the abstract of judgment to accurately reflect the statutory basis and components of the sex crime fine.

Issues

Whether the DNA identification fund penalty assessment must be based on the law in effect at the time of the offense.
Whether the abstract of judgment must correctly identify the statutory basis for a sex crime fine.
Whether a no-visitation order under Penal Code section 1202.05 is authorized for adult victims or attempted kidnapping offenses.

Disposition. affirmed as modified

Quotations verified verbatim against the opinion

“this penalty assessment must be imposed based on the date of the underlying offense, not the date of the defendant’s sentencing”

“The amended abstract of judgment must reflect that, in case No. CM036180, the sex crime fine is imposed pursuant to section 290.3.”

“We modify the judgment by striking the no-visitation order in its entirety.”

Filed 9/23/14 P. v. Baker CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C073976

Plaintiff and Respondent, (Super. Ct. No. CM036180, CM037789) v.

JOHN MICHAEL BAKER,

Defendant and Appellant.

In March 2013, defendant John Michael Baker pled guilty to forcible rape and admitted allegations that he kidnapped the victim for sexual purposes and that he had a prior strike conviction. (Case No. CM036180.) In exchange, a count of kidnapping and a prior serious felony allegation were dismissed with a Harvey1 waiver.

1 People v. Harvey (1979) 25 Cal.3d 754.

In a second case (case No. CM037789) defendant pled guilty to attempted kidnapping and admitted the strike allegation . In exchange, a count of assault with a firearm and an allegation that he personally used a firearm were dismissed with a Harvey waiver. Defendant was sentenced to prison for 26 years eight months. He was ordered to have no visitation with either victim pursuant to Penal Code2 section 1202.05. He was ordered to pay, among other things, a $300 sex crime fine plus penalty assessments including a DNA identification fund assessment of 40 percent ($120) pursuant to Government Code section 76104.7. The abstract of judgment lists the statutory authority for the fine as section 672, not section 290.3, and it does not list the components of the aggregate fine. Defendant contends, and the People concede: (1) the 40 percent penalty assessment must be reduced to 30 percent, the amount in effect at the time of the sex crime; (2) the abstract of judgment must be corrected to specify a sex crime fine under section 290.3, not section 672; (3) the abstract must be corrected to reflect all components of the sex crime fine and penalty assessments; and (4) the no-visitation order must be stricken as to both victims because (a) the rape victim was an adult, not a minor; and (b) the attempted kidnapping offense does not support a no-visitation order. We modify the judgment. FACTS The facts of defendant’s offenses are not at issue in this appeal and need not be set forth in this opinion. The forcible rape was alleged to have occurred on or about May 15, 2012. In an impact statement at sentencing, the victim stated that she was 42 years old.

People v. Baker CA3

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THE PEOPLE, C073976

JOHN MICHAEL BAKER,

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