P. v. Gonzalez CA2/3

Filed 5/16/13 P. v. Gonzalez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B241693
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA120514)
v.
STEVE GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur M. Lew, Judge. Modified and, as so modified, Affirmed.
Benjamin Owens, 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, Michael R.
Johnsen and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________
Steve Gonzalez appeals the judgment entered following his conviction by
jury of stalking, three counts of criminal threats and two misdemeanor counts of
disobeying a court order. (Pen. Code, § 646.9, subd. (a), 422, 166, subd. (a)(4).)
The trial court sentenced Gonzalez to prison and ordered him to pay, inter alia,
a $20 DNA penalty assessment pursuant to Government Code section 76104.7.
We order the judgment modified to strike the penalty assessment and, as so
modified, affirm.
DISCUSSION1
At sentencing, the trial court ordered Gonzalez to pay a $240 court security
assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $180 criminal conviction
assessment (Gov. Code, § 70373), a $1,000 restitution fine (Pen. Code, § 1202.4,
subd. (b)), a $1,000 parole revocation fine (Pen. Code, § 1202.45), and a $20 DNA
penalty assessment (Gov. Code, § 76104.7).
Gonzalez contends the $20 penalty assessment imposed pursuant to
Government Code section 76104.7 does not apply to any of the other fines imposed
in this case. (See People v. Allen (2001) 88 Cal.App.4th 986, 991.) Consequently,
it must be stricken an as unauthorized sentence. (People v. Scott (1994) 9 Cal.4th
331, 354.) The People concede the point and it appears their concession is well
taken.
A DNA fine under Government Code section 76104.7 must be attached as a
penalty assessment to some other properly imposed fine, generally a DNA fine
under Government Code section 76104.6. (See People v. Valencia (2008)
166 Cal.App.4th 1392, 1395.) No such fine was imposed in this case. Accordingly,
the $20 DNA fine must be stricken as unauthorized.
1
The facts of the underlying offenses are unnecessary to resolve the issue
presented.
2
DISPOSITION
The judgment is modified to strike the imposition of a $20 DNA fine
pursuant to Government Code section 76104.7. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
KITCHING, J.
3