People v. Taylor CA3 ( 2021 )

Filed 1/5/21 P. v. Taylor 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Nevada)
----
THE PEOPLE,
Plaintiff and Respondent, C085359
v. (Super. Ct. No. F15-000250)
ROBERT LEWIS TAYLOR,
Defendant and Appellant.
A jury convicted defendant Robert Lewis Taylor on six counts alleging lewd acts
upon a child under the age of 14, and it found true allegations that defendant engaged in
substantial sexual conduct with one victim and committed sexual offenses against more
than one victim. The trial court imposed a sentence of 30 years to life under the one
strike law.
Defendant now contends (1) on counts I through V, the trial court did not sentence
him under the law in effect at the time his offenses were committed, in violation of ex
post facto principles; (2) the trial court erred in denying his motion for a new trial
based on juror misconduct; (3) the trial court failed to recognize that the Penal Code
1
section 288, subdivision (e)1 fines were not mandatory; and (4) the imposed section
290.3, subdivision (a) fines and associated penalty assessments violate ex post facto laws,
and the Government Code section 76104.6 penalty assessments are unauthorized.
We conclude (1) although the version of law in effect at the time of the offenses
allowed for the possibility of probation, any error in failing to consider eligibility for
probation was harmless beyond a reasonable doubt because on this record defendant is
not eligible for probation; (2) in denying the new trial motion, the trial court did not
abuse its discretion or deny defendant due process or a fair trial; (3) the record
demonstrates that the trial court exercised its discretion in imposing the section 288,
subdivision (e) fines; and (4) we will modify the judgment to impose authorized fines and
penalty assessments.
We will affirm the judgment as modified.
BACKGROUND
Briana P.’s mother was married to defendant from July 2000 to May 2001. Briana
was very close to defendant and his daughters. Briana testified defendant was like a
father to her. She maintained communication with defendant and remained close friends
with his daughters after she and her mother moved out of defendant’s house. Briana
described an occasion when defendant gave her a massage as she lay face down, covered
by a sheet and wearing only her underwear, and defendant “was getting sort of close to
some areas” that made Briana uncomfortable. Briana was 12 or 13 years old at the time
of the incident.
Haley G.’s mother dated defendant after being close friends with him for a long
time. Haley, her mother and her brother lived with defendant and his daughters from
1 Undesignated statutory references are to the Penal Code.
2
January 2005 until sometime after July 2006. Defendant was like a stepfather to Haley.
Haley had a very close relationship with him.
Haley was 23 years old at the time of the trial. She testified about seven incidents
of inappropriate touching when she was 11 years old. She said defendant touched her
vagina with his hands, inserted his fingers in her vagina and massaged her bare buttocks
with his hands. Haley continued to communicate with defendant after she and her mother
moved out of defendant’s house.
Jade L. was 23 years old at the time of the trial. Defendant was married to Jade’s
aunt. Jade had a very close relationship with defendant and his daughters. She visited
defendant and her cousins at defendant’s home, and the two families went on vacations
together. Jade testified that defendant placed his hand under her shirt and rubbed her
breast during a camping trip when she was 12 years old. The camping trip occurred in
August 2006.
Emily H.’s mother also dated defendant. Emily, her mother and her brother lived
with defendant and his daughters for about four years beginning in October 2008. Emily
viewed defendant as a stepfather and was very close to him. She testified that defendant
touched her inappropriately during massages starting when she was 16 until she was 19.
The People charged defendant with seven counts alleging a lewd act upon a child
under the age of 14 (§ 288, subd. (a) -- counts I-VI, XII), one count of misdemeanor
sexual battery (§ 243.4, subd. (e) -- count VII), one count of forcible sexual penetration
(§ 289, subd. (a)(1) -- count VIII), and three counts of molesting a child under the age of
18 (§ 647.6, subd. (a)(1) -- counts IX-XI). Defendant testified at the trial and denied the
allegations against him.
The jury convicted defendant on five counts of a lewd act upon a child (§ 288,
subd. (a) -- counts I to V) against Haley and one count of a lewd act upon a child (§ 288,
subd. (a) -- count VI) against Jade. The jury found true allegations that Haley was under
the age of 14 and that defendant engaged in substantial sexual conduct with her within
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the meaning of section 1203.066, subdivision (a)(8) as to counts II through V. The jury
also found true an allegation that defendant committed sexual offenses against more than
one victim within the meaning of section 667.61, subdivision (e)(4).
The jury found defendant not guilty on the count VIII (§ 289, subd. (a)(1)) and XII
(§ 288, subd. (a)) charges involving Emily and Briana. It could not reach a verdict on the
count VII (§ 243.4, subd. (e)), IX (§ 647.6, subd. (a)(1)), X (§ 647.6, subd. (a)(1)) and XI
(§ 647.6, subd. (a)(1)) charges relating to Emily, and the People later dismissed those
counts. The trial court sentenced defendant to a prison term of 30 years to life.
DISCUSSION
I
Defendant contends that on counts I through V, the trial court did not sentence him
under the law in effect at the time his offenses were committed, in violation of ex post
facto principles. Specifically, he claims that because the trial court should have
sentenced him under the versions of sections 667.61 and 1203.066 in existence in 2005,
the trial court should have considered whether he was eligible for probation.
Section 667.61, the one strike law, requires indeterminate life sentences for
enumerated sex offenses committed under certain aggravated circumstances. The current
version of the statute mandates a 15-year-to-life prison term when a defendant, as in this
case, is convicted of violating section 288, subdivision (a) against more than one victim.
(§ 667.61, subds. (b), (c)(8), (e)(4).) The current version also renders a defendant
ineligible for probation. (§ 667.61, subd. (h).)
The parties agree, however, that the 2005 version of the law applies in this case.
Former section 667.61 provided for an indeterminate term “unless the defendant qualifies
for probation under [former] subdivision (c) of Section 1203.066.” (Stats. 1998, ch. 936,
§ 9 [former § 667.61, subdivisions (b), (c)(7), (e)(5)]; see Stats. 2006, ch. 337, § 33
[deleting the probation qualification language in former section 667.61, subdivision (c)(7)
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effective September 20, 2006]; People v. Wutzke (2002) 28 Cal.4th 923, 927-928, 931
(Wutzke).)
Former section 1203.066, subdivision (c) authorized probation under specified
circumstances. (People v. Hammer (2003) 30 Cal.4th 756, 765-766; Wutzke, supra,28 Cal.4th at p. 928; People v. Jeffers (1987) 43 Cal.3d 984, 993-997 (Jeffers).)
Eligibility for probation required the following findings: “(1) The defendant is the
victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the
victim’s household who has lived in the victim’s household. [¶] (2) A grant of probation
to the defendant is in the best interest of the child. [¶] (3) Rehabilitation of the defendant
is feasible, the defendant is amenable to undergoing treatment, and the defendant is
placed in a recognized treatment program designed to deal with child molestation
immediately after the grant of probation or the suspension of execution or imposition of
sentence. [¶] (4) The defendant is removed from the household of the victim until the
court determines that the best interests of the victim would be served by returning the
defendant to the household of the victim. . . . [¶] (5) There is no threat of physical
harm to the child victim if probation is granted.” (Stats. 1997, ch. 817, § 13 [former
section 1203.066, subdivision (c)].) But even if the findings established defendant’s
eligibility for probation, the sentencing court retained discretion to find the defendant
unsuitable for probation and to order imprisonment. (Wutzke, at pp. 932, fn. 7, 942;
Jeffers, at p. 1000.)
At sentencing, the trial court did not mention probation under former section
1203.066. The Probation Officer’s Report, which the sentencing court considered, stated
that defendant was not eligible for probation under section 667.61, subdivision (h) and
was presumptively ineligible for probation under section 1203.066, subdivisions (a)(7)
(multivictim section 288 case) and (a)(8) (section 288 case involving substantial sexual
conduct with a victim under the age of 14), without discussing the former section
1203.066, subdivision (c) factors. The report concluded that a 15-year-to-life sentence
5
on each count was mandatory because the jury found the section 1203.066,
subdivision (a)(7) multiple-victim allegation true. Defendant’s statement in mitigation
agreed that he was ineligible for probation. It thus appears, as the parties suggest, that the
trial court did not consider defendant’s eligibility for probation under the versions of
sections 667.61 and 1203.066 in effect at the time of the offenses, i.e., prior to January 1,
2006.
Any error in failing to consider whether defendant was eligible for probation is
harmless beyond a reasonable doubt, however, because on this record, defendant is not
eligible for probation. (Wutzke, supra, 28 Cal.4th at p. 932; People v. Lammey (1989)
216 Cal.App.3d 92, 98.) Under the former law, defendant is not eligible for probation
unless all five criteria in former section 1203.066, subdivision (c) are established.
Citing People v. Wills (2008) 160 Cal.App.4th 728 (Wills), the Attorney
General argues defendant cannot establish the former section 1203.066,
subdivision (c)(2) factor -- that a grant of probation is in the best interest of the child --
because Haley G. was no longer a child at the time of sentencing. In Wills, the appellate
court held that use of the present tense “is” in section 1203.066, subdivision (c)(2)
indicated a legislative intent to evaluate the circumstances at the time of sentencing in
determining whether probation was in the best interest of the child victim. (Id. at p. 737.)
The court concluded that when the victim is no longer a child at the time of sentencing,
the sentencing court cannot find that probation is in the best interest of the child. (Ibid.)
Defendant urges us to disagree with Wills. But irrespective of the holding in Wills,
the record shows defendant is not eligible for probation because there is no evidence
probation was in Haley’s best interest regardless of her status as a child. We construe
section 1203.066, subdivision (c) in light of the concerns the Legislature considered when
it enacted that statute. (Jeffers, supra, 43 Cal.3d at p. 997.) The subdivision addressed
concerns relating to intrafamilial and same-household offenders. (Wutzke, supra,28 Cal.4th at pp. 935-938.) Lawmakers were presented with evidence that in some cases,
6
young victims may feel they might share in the blame, may resist implicating a close
relation, may want to avoid dissolving a family unit, or may fear financial abandonment.
(Id. at pp. 936-937; see also Jeffers, at pp. 994-995.) It was expressed that without an
option for probation, victims and their families might be deterred from reporting a crime
or from cooperating with law enforcement. (Ibid.) Here, however, there is no evidence
that Haley felt any of these concerns. The Probation Officer’s report indicated defendant
was not the primary source of income for anyone other than himself. Haley and her
parents’ statements at the sentencing hearing showed they blamed defendant, not Haley,
and they did not express a wish to maintain ties with defendant. Haley testified she had
cut all contact with defendant. At sentencing, her mother condemned defendant for
grooming and violating the victims and then abandoning and attacking them when the
truth came out. Haley’s father asked the court to sentence defendant to prison for the rest
of defendant’s life to prevent his reoffending. Nothing in the statements of Haley and her
parents would support a finding that probation was in Haley’s best interest.
On this point, defendant argues that “stability of the complainant’s family would
be beneficial and appellant could contribute to counseling costs.” However, he does not
cite any portion of the record to support his assertions and he does not explain how
Haley’s family would be more stable if he were granted probation. We do not consider
claims made without citation to the record. (People v. Myles (2012) 53 Cal.4th 1181,
1222, fn. 14; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [an assertion that
is unsupported by a reference to the record is waived].)
The ex post facto clauses of the state and federal Constitutions preclude the state
from retroactively increasing the punishment for criminal acts. (U.S. Const., art. I, § 10;
Cal. Const., art. I, § 9; People v. Valenti (2016) 243 Cal.App.4th 1140, 1173.) Here, the
one strike law in effect at the time of defendant’s crimes required a mandatory prison
term unless defendant was eligible for probation and the trial court ultimately exercised
its discretion to place him on probation. Because the record establishes defendant is not
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eligible for probation under former section 1203.066, subdivision (c), any error by the
trial court in failing to consider his eligibility for probation is harmless beyond a
reasonable doubt. Under the circumstances, we reject defendant’s claim that the trial
court retroactively increased his punishment.
II
Defendant next argues the trial court denied him due process and a fair trial by
denying his motion for a new trial based on juror misconduct.
A
Defendant’s motion for a new trial was based in relevant part on alleged
misconduct by Juror No. 3, who had disclosed in voir dire that she was molested as a
child. Juror No. 3 was in her late 60s or early 70s at the time of the trial.
During voir dire, defendant’s trial counsel and the prosecutor examined Juror
No. 3 about her disclosure. Juror No. 3 assured counsel that she could sit on the case
impartially. She said she had “been on both sides” and had “seen people accused when it
wasn’t . . . .” She continued that many people were quick to accuse and once an
accusation was made, “that’s a terrible stigma” and “[i]f they’re innocent, it’s going to
follow them the rest of their life.” Juror No. 3 affirmed she was willing to follow the
evidence in the case. The defense and prosecution did not excuse her for cause and they
kept her on the jury panel even though they had unused peremptory challenges.
In support of the new trial motion, defendant submitted the declaration of the jury
foreperson. The foreperson said she cried when the verdict was read and later sent
defendant’s daughter a note, apologizing and letting the daughter know “there was
someone in that deliberation room in [defendant’s] corner.” The foreperson’s note to the
daughter said, “I argued every way [I] could for him for 3 days” but the charges relating
to Haley were very difficult to argue against.
The foreperson attested that Juror No. 3 was quiet but, on the second day of
deliberations, Juror No. 3 shared that she had been molested by a close family friend
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when she was between four and eight years old. The foreperson could not recall the
context in which Juror No. 3 spoke. According to the foreperson, there were a lot of
similarities between Juror No. 3’s story and the evidence the jury heard at the trial.
Juror No. 3 was abused by a close family friend, someone beloved in the community,
who was “respectable” and “not some awful, slimy, sleaze ball kind.” The foreperson
said Juror No. 3 was “adamant from the beginning about the defendant’s guilt” and the
foreperson did not think there was any way Juror No. 3 was unbiased. The foreperson
said Juror No. 3 “had the room riveted for several minutes with what happened to her and
how those suppressed memories came up for her later in therapy. Everybody was very
focused on her and it was very intense and very emotional. She was choking back tears,
when she stopped speaking there was a collective -- aw -- everybody let their breath go.
Some jurors teared up while Juror [No. 3] shared her experience.” The foreperson
recounted that Juror No. 3 said the memory of her abuse did not come up until she was in
her forties, in therapy for another issue. The foreperson further averred that Juror No. 3
repeatedly stated during deliberations that “This is how child molesters are;” “They do
this kind of thing;” “They are often very beloved;” “That’s what they do;” “This is how
they operate;” “It’s understandable or it’s not hard to believe that you love the person that
is doing this to you, you may even like the attention, it’s not until later that you realize
that something was wrong about it.” According to the foreperson, Juror No. 3’s
comments were generalities about molesters. The foreperson opined that in Juror No. 3’s
mind the person who hurt her, and not defendant, was on trial. The foreperson also said
defendant’s case was his good character but Juror No. 3’s repeated response to that was
“he was grooming these girls.” She said the other jurors seemed to give Juror No. 3
“more credibility and weight regarding the character and behavior of a molester and
experience of their victim” and the foreperson believed some jurors perceived Juror No. 3
as an expert on molestation. Notwithstanding her concerns about the jury deliberations,
the foreperson did not disavow the verdict.
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Defendant subsequently submitted the declaration of Juror 766521. According to
that juror, Juror No. 3 shared in the jury room that the perpetrator in her case was very
close to her and that defendant’s behavior was indicative of “grooming the girls.”
The People opposed the new trial motion, arguing that portions of the foreperson’s
declaration were inadmissible under Evidence Code section 1150 and that the admissible
portions did not show juror misconduct or prejudice.
The trial court denied defendant’s motion. It found no misconduct by Juror No. 3
and nothing in the record suggesting an effort to convict that was influenced or instigated
by Juror No. 3.
B
A verdict must be based on the evidence presented at trial and not on extrinsic
matters. (People v. Leonard (2007) 40 Cal.4th 1370, 1414 (Leonard).) But jurors’ views
of the evidence are informed by their life experiences. (In re Lucas (2004) 33 Cal.4th 682,
696.) It is not necessarily misconduct for a juror to share during deliberations the juror’s
thoughts based on personal experience. (Leonard, at pp. 1381, 1413-1414; In re Lucas, at
pp. 697; People v. Yeoman (2003) 31 Cal.4th 93, 162.)
Moreover, in considering a claim of juror misconduct, no evidence is admissible to
show the effect of statements upon jurors in reaching a verdict or the mental processes by
which the juror’s decision was determined. (Evid. Code, § 1150, subd. (a); People v.
Steele (2002) 27 Cal.4th 1230, 1261 (Steele).) Thus, the following statements by the
foreperson are inadmissible under Evidence Code section 1150, subdivision (a), and we
do not consider them in addressing defendant’s contention: (1) some jurors perceived
Juror No. 3 as an expert; (2) in Juror No. 3’s mind, her own molester and not defendant
was on trial; (3) “this was not about the person on trial. This was more about her own
internal trial;” (4) to Juror No. 3 defendant’s “good character” “seemed to be evidence of
his guilt;” and (5) “[e]verbody on the jury seemed to give [Juror No. 3] a lot more
credibility and weight regarding the character and behavior of a molester and experience
10
of their victim.” (People v. Hensley (2014) 59 Cal.4th 788, 825, fn. 14 [a statement about
the effect a conversation had on a juror’s mind and decision cannot be considered];
People v. Manibusan (2013) 58 Cal.4th 40, 55, 57 [one juror’s understanding of what
another juror’s statement meant was inadmissible, and a juror’s statement about the effect
information another juror shared had on his own and other jurors’ subjective reasoning
processes was also inadmissible]; Steele, supra, 27 Cal.4th at p. 1265 [statements about
the effect jurors’ statements had on the jury’s deliberations were inadmissible].)
The foreperson averred that Juror No. 3’s “interpretation” of evidence of
defendant’s good character was that defendant was “grooming these girls.” A juror’s
evaluation of the evidence and rejection of a defense as not credible based on the
juror’s personal experiences does not by itself constitute misconduct. (Leonard, supra,40 Cal.4th at p. 1414; In re Lucas, supra, 33 Cal.4th at p. 697, Steele, supra, 27 Cal.4th at
pp. 1265-1267.) “ ‘[J]urors cannot be expected to shed their backgrounds and
experiences at the door of the deliberation room.’ ” (In re Lucas, at p. 696.) They
“ ‘bring to their deliberations knowledge and beliefs about general matters of law and fact
that find their source in everyday life and experience.’ [Citation.] This experience may
stem from education or employment, but sometimes it comes from other personal
experiences.” (Ibid.) “ ‘[J]urors are expected to bring their individual backgrounds and
experiences to bear on the deliberative process.’ ” (Ibid.) The trial court instructed the
jury that testimony about defendant’s good reputation for appropriate behavior with
children can create a reasonable doubt whether defendant committed the alleged offenses,
but the jury must decide the meaning and importance of the character evidence. The
foreperson’s statement indicates Juror No. 3 followed the trial court’s instruction.
Moreover, where the evidence is susceptible to various interpretations, jurors may
use their own experience to evaluate it within the range of permissible interpretation.
(Steele, supra, 27 Cal.4th at p. 1265-1266.) Juror No. 3’s statements about molesters in
general and grooming were consistent with the conflicting evidence presented at trial.
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The trial court instructed the jury that its verdict must be based only on the
evidence presented at trial and the law the trial court provided. The trial court explained
it was unfair to the parties if the jury received additional information from any other
source because that information may be unreliable or irrelevant and the parties would not
have the opportunity to examine and respond to it. It admonished the jury to use only the
evidence presented in the courtroom to decide the facts. It defined evidence as the sworn
testimony of witnesses, exhibits admitted into evidence and anything else the trial judge
told the jury to consider as evidence. It also said the jury must judge the credibility of the
witnesses and the jury could use its common sense and experience in deciding whether
testimony was true. Even if Juror No. 3 did not follow the trial court’s instruction to use
only the evidence presented in the courtroom to decide the facts, it appears she followed
the instruction to use her common sense and experience in deciding whether testimony
was true. Based on the totality of the circumstances, defendant has not established denial
of due process or a fair trial.
In re Lucas is instructive. In that case, the defendant claimed he killed his
neighbors while unconscious after injecting large quantities of methamphetamine,
cocaine and heroin. (In re Lucas, supra, 33 Cal.4th at pp. 688, 691.) A referee appointed
to conduct an evidentiary hearing and make findings concerning the defendant’s claim of
juror misconduct determined that a juror had concluded the defendant had lied about how
much drugs he had taken or the effect those drugs had on the defendant; the juror shared
his opinion with the other jurors; and the juror’s opinion was based on the juror’s
personal experience with controlled substances and not on evidence received at the trial.
(Id. at pp. 693, 695.) The California Supreme Court rejected the claim of juror
misconduct. (Id. at p. 697.) It noted that the juror did not hold himself out as an expert in
a technical matter on the basis of his education or occupation, but merely related his
personal experience about a matter that was of fairly common knowledge, as it related to
the evidence and the inferences the defendant wanted the jury to draw from the evidence.
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(Ibid.) The Court also considered the fact that the juror disclosed that he was a former
addict and alcoholic during voir dire. (Ibid.) It held it was not substantially likely that
any juror was biased by the challenged juror’s comments, considering the general
awareness people had of the effects of controlled substances, the mild and brief nature of
the comments, the tentative spirit in which they were offered, and the lack of insistence
that the comments should convince the other jurors to reject the defense. (Ibid.)
Here, the foreperson did not aver facts showing that Juror No. 3 presented herself
as an expert on child molestation. Rather, Juror No. 3 shared her own experience of
being sexually abused as a child, not a matter based on outside research or her education
or profession. She disclosed in voir dire that she was a victim of child sexual abuse.
Many venire members disclosed they, a family member or someone close to them had
been a victim of sexual abuse as a child.
The record also does not establish inappropriate influence. The jury acquitted
defendant on two counts and hung on four counts, indicating the jurors considered each
count separately, it was not substantially likely that the Juror No. 3’s statements affected
the verdict, and no juror had an actual bias against defendant.
Defendant’s contention lacks merit.
III
Defendant also argues the trial court incorrectly believed the section 288,
subdivision (e) fines were mandatory.
Former section 288, subdivision (e) provided that on a conviction for a violation of
section 288, subdivision (a), the court may order the defendant to pay an additional fine
not to exceed $10,000. (Stats. 2004, ch. 823, § 7.) With regard to fines, the trial court
stated, “The Legislature requires me to consider fines, which always troubles me in cases
like this. But I’m required to do it, so I’ll do it. Section 288[, subdivision (e)], this is the
specific fine for people convicted of 288’s of as much as $10,000, which when you stack
what are called penalty assessments on top of that that’s probably, what, 35 or $40,000.
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I’ll select 2000 as the appropriate number, a thousand for each of the victims here. With
penalty assessments that becomes $7,350.” (Italics added.)
Defendant construes the above italicized sentence to mean that the trial court
believed the section 288, subdivision (e) fine was mandatory. We disagree with that
characterization. The trial court merely noted it must “consider” whether to impose fines.
It did not say the Legislature required the trial court to impose the section 288 fines.
Based on the manner in which the trial court imposed the section 288, subdivision (e)
fines, the record demonstrates the trial court exercised its discretion.
IV
Defendant further contends the trial court did not impose section 290.3,
subdivision (a) fines and associated penalty assessments under the version of the law in
effect at the time of the offenses, in violation of ex post facto principles. In addition,
defendant argues the imposed Government Code section 76104.6 penalty assessments are
unauthorized.
A
Trial testimony established that the count I through V offenses occurred in 2005
and the count VI offense occurred in August 2006. The version of section 290.3,
subdivision (a) in effect at the time of those offenses provided: “Every person who is
convicted of any offense specified in subdivision (a) of Section 290 [which includes
violation of section 288] shall . . . be punished by a fine of two hundred dollars ($200)
upon the first conviction or a fine of three hundred dollars ($300) upon the second and
each subsequent conviction, unless the court determines that the defendant does not have
the ability to pay the fine.” (Stats. 1995, ch. 91, § 121; Stats. 2006, ch. 69, § 27.)
Effective September 20, 2006, the amounts of the section 290.3, subdivision (a) fines
were changed to $300 for the first conviction and $500 for the second and each
subsequent conviction. (Stats. 2006, ch. 337, § 18.)
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The trial court imposed section 290.3 fines of $300 on count II and $500 on count
VI. The Attorney General agrees those fines were incorrect, and we agree too. (People
v. Voit (2011) 200 Cal.App.4th 1353, 1372; People v. Valenzuela (2009) 172 Cal.App.4th
1246, 1248 (Valenzuela).)
“[A]n unauthorized sentence may be corrected at any time even if there was no
objection in the trial court. [Citations.] Such an unauthorized sentence may be corrected
even when raised for the first time on appeal. [Citations.]” (Valenzuela, supra, 172
Cal.App.4th at p. 1249.) We will modify the section 290.3 fines and associated penalty
assessments on counts II and VI because they are unauthorized. (Ibid. [modifying
section 290.3, subdivision (a) fine to the amount authorized as of the date of the
offense].)
B
At the time of the offenses, Government Code section 76104.6, subdivision (a)
provided in relevant part: “For the purpose of implementing the DNA Fingerprint,
Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty
of one dollar for every ten dollars ($10) or fraction thereof . . . upon every fine, penalty,
or forfeiture imposed and collected by the courts for criminal offenses . . . .” (Prop. 69,
§ IV, approved Nov. 2, 2004, eff. Nov. 3, 2004.) The Attorney General agrees the
Government Code section 76104.6, subdivision (a) penalty assessments imposed in this
case do not conform with the former statute and must be modified. We also agree.
We will modify the judgment to reflect the authorized Government Code
section 76104.6, subdivision (a) penalty assessments.
DISPOSITION
The judgment is modified to reflect the following authorized fines and fees.
The section 290.3, subdivision (a) fine on count II is $200 rather than $300. The penalty
assessments on count II are $200 rather than $300 (§ 1464, subd. (a)), $100 rather than
$142.50 (Gov. Code, § 76000, subd. (a), (e)), $20 rather than $150 (Gov. Code,
15
§ 76104.6, subd. (a); $100 rather than $150 (Gov. Code, § 70372, subd. (a)), and $40
rather than $60 (§ 1465.7, subd. (a)). The section 290.3, subdivision (a) fine on count VI
is $300 rather than $500. The penalty assessments on count VI are $300 rather than $500
(§ 1464, subd. (a)), $150 rather than $237.50 (Gov. Code, § 76000, subd. (a), (e)), $30
rather than $250 (Gov. Code, § 76104.6, subd. (a)), $150 rather than $250 (Gov. Code,
§ 70372, subd. (a)), and $60 rather than $100 (§ 1465.7, subd. (a)). The Government
Code section 76104.6, subdivision (a) penalty assessment on the section 288,
subdivision (e) fine is $200 rather than $1,000. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment reflecting the
judgment as modified and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
/S/
MAURO, Acting P. J.
We concur:
/S/
MURRAY, J.
/S/
RENNER, J.
16