P. v. Payne CA2/8

Filed 3/21/13 P. v. Payne CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B242452

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA120886) v.

AARON T. PAYNE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles 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.

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Pursuant to a negotiated plea agreement, Aaron Payne pleaded no 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).)1 Payne further admitted a prior strike and two 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