People v. Shoemaker CA3

Filed 4/19/16 P. v. Shoemaker CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE,

Plaintiff and Respondent, C077899

v. (Super. Ct. No. CRF13588)

DAVID JOSEPH SHOEMAKER,

Defendant and Appellant.

Defendant David Joseph Shoemaker appeals the judgment imposed following his pleas of no contest to two counts of oral copulation of a minor. Specifically, he appeals the trial court’s order that he pay a restitution fund fine of $3,360, contending the trial court violated ex post facto prohibitions when it calculated his restitution fund fine utilizing a minimum fine not in effect at the time he committed the crimes. Based on counsel’s failure to object, we conclude defendant has forfeited this issue. Defendant also contends the trial court erred by imposing $60 per count for the additional DNA penalty assessment attached to the sex offender fine. The People properly concede this point. We conclude the assessment must be reduced to $30 per count.

1

The People contend the trial court erred in not imposing a mandatory state-only DNA penalty assessment on the sex offender fine. We agree and remand the matter to the trial court for further proceedings to determine the proper amount of the state-only DNA penalty assessment and defendant’s ability to pay the increased assessment. In all other respects, the judgment is affirmed. BACKGROUND Between October 8, 2010 and October 7, 2012, defendant repeatedly orally copulated a minor. The minor was 15 years old when defendant began sexually molesting her. An information charged defendant with seven sexual offenses against multiple victims. (Pen. Code, §§ 288.5, subd. (a), 289, subd. (a)(1)(C), 261, subd. (a)(2)/264, subd. (c)(2), 288a, subd. (c)(2)(C), 243.4, subd. (a).)1 Defendant pleaded no contest to two counts of unlawful oral copulation upon one minor who was then 14 years or older, accomplished against the victim’s will, by means of duress (§ 288a, subd. (c)(2)(C)), in exchange for a stipulated sentence of 12 years in prison. Pursuant to the People’s motion, the trial court dismissed the remaining counts. In accordance with the plea agreement, the trial court sentenced defendant to serve a prison term of 12 years. The trial court ordered defendant to pay a $3,360 restitution fund fine (§ 1202.4) and imposed and stayed a corresponding $3,360 parole revocation fine (§ 1202.45). The trial court also ordered defendant to pay $1,140 as to each count under section 290.3 and the attendant penalty assessments. Specifically, the trial court imposed a $300 base fine (§ 290.3), a $300 state penalty assessment (§ 1464, subd. (a)(1)), an additional $210 penalty (Gov. Code, § 76000, subd. (a)(1)), a $60 state surcharge (§ 1465.7), a $150 state court construction penalty (Gov. Code, § 70372), a $60