People v. Gonzalez CA6

Filed 5/18/15 P. v. Gonzalez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041229 (Monterey County Plaintiff and Respondent, Super. Ct. No. MS041857A)

v.

EFRAIN GONZALEZ,

Defendant and Appellant.

Defendant Efrain Gonzalez, convicted of forcible rape following a court trial, challenges as unauthorized certain of the penalty assessments imposed in connection with a sex offender fine as part of his sentence. The People concede the penalty assessments at issue are unauthorized. We modify the judgment and affirm the judgment as modified. I. FACTUAL AND PROCEDURAL BACKGROUND On October 29, 2003, 17-year-old Jane Doe slept over at her friend Oscar’s house. The following morning, defendant, Oscar’s father, offered to drive Doe home in his van. On the way, he stopped the van and raped Doe in the back. He then dropped her off near her school. She reported the crime to police, but they were unable to locate defendant. Defendant’s DNA was found in a sample taken from her vagina following the rape. The district attorney for the County of Monterey filed a complaint on June 23, 2004, charging defendant with forcible rape (Pen. Code, § 261, subd. (a)(2)).1 Defendant was arrested nearly 10 years later, on December 4, 2013. The parties waived a jury trial; 1 All further statutory references are to the Penal Code unless otherwise noted.

defendant did so on the condition that, if convicted, he would be sentenced to no more than six years in prison. In June 2014, following a one-day bench trial, the court found defendant guilty of forcible rape. The court sentenced defendant to a term of six years in prison. The court imposed various fines and fees. As recommended by the probation report, the court imposed a $200 section 290.3 base sex offender fine and $930 in related penalty assessments for a total of $1,130. The penalty assessments imposed include: (1) a $300 state penalty assessment (§ 1464, subd. (a)(1)); (2) a $210 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)); (3) a $60 state surcharge (§ 1465.7); (4) a $150 state court construction penalty (Gov. Code, § 70372); (5) a $60 emergency medical services penalty (id., § 76000.5); (6) a $30 DNA penalty (id., § 76104.6, subd. (a)(1)); and (7) a $120 state-only DNA penalty (id., § 76104.7). Defendant timely appealed. II. DISCUSSION Defendant argues, and the People concede, that the trial court committed several errors in imposing penalty assessments at sentencing. First, the court imposed a $300 state penalty assessment pursuant to section 1464, subdivision (a)(1). That fee should have been $200, equal to the $200 section 290.3 base fine. (§ 1464, subd. (a)(1) [“there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses”].) Second, the court imposed three penalty assessments--the $30 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)), the $120 state-only DNA penalty (id., § 76104.7), and the $60 emergency medical services penalty (id., § 76000.5)--that had not been enacted at the