1 Filed 10/14/14 P. v. Dumont CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado)

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THE PEOPLE, Plaintiff and Respondent,

v. RALPH EUGENE DUMONT, Defendant and Appellant. C074622 (Super. Ct. No. P12CRF0521)

A jury found defendant Ralph Eugene Dumont guilty of driving under the influence of alcohol (DUI) and driving with a blood-alcohol content of 0.08 percent or greater and found true an allegation that he had a blood-alcohol level of 0.15 percent or greater. The trial court sustained a strike, three prior prison terms, and two prior DUI conviction allegations. Defendant was senten ced to nine years eight months in state prison with various fines and fees, including a $2,374 fine, im posed. The fine was later modified to $2,277.2 On appeal, defendant conte nds there are numerous errors in the penalties, fees, and assessments associated with the fine. Ag reeing with defendant, we shall modify the penalties, fees, and assessments as sociated with the base fine.
BACKGROUND 1 At sentencing, the trial court imposed “a court fine and penalties and assessments in the amount of $2,374” on the DUI conviction (DUI fine). The abstract of judgment listed the fine but did not separately list th e penalties, fees, and as sessments associated
with it. During the pendency of this appeal, defe ndant’s appellate counsel sent a letter to the trial court on November 18, 2013, requesting the trial cour t provide the statutory basis for certain fines, fees, and assessments, rec onsider the restitution and parole revocation fines, and correct errors in the abstract. Th e trial court modified the restitution and parole revocation fines, modified the DUI fine to $2,27 7, issued what appeared to be a printout of a computer program for calculating various fines, fees, penalties, and assessments, and issued an amended abstract of judgment. On January 8, 2014, appellate counsel again requested clarification of the DUI fine. The trial court issued a table outlining th e statutory basis for the fine and associated fees, assessments, and penalties. Appellate counsel requested further clarif ication on January 30, 2014. The trial court promulgated another ta ble. (See appendix.)
DISCUSSION
Defendant identifies numerous errors w ith the penalties, fees, and assessments
associated with the base fine . With one minor exception, the People agree. We agree
with defendant.

1 We dispense with a summary of the fa cts of defendant’s crimes as they are unnecessary to reso lve this appeal.3 Defendant first notes the trial court misstated the statutory source of the base fine. The purported source of th e base fine, Penal Code 2 section 1463.001, does not establish any fine but instead sets forth the procedures for accounting for base fines. Vehicle Code section 23550, subdivision (a) mandates a fine from $390 to $1,000 for any defendant who is convicted of a DUI with three prior DUI convictions within the last 10 years. Defendant and the People assert this is the statutory source of the base fine. We agree
and we shall direct the trial court to state as such in the amended abstract. Next, defendant finds that the amounts inco rporated into the DUI fine pursuant to sections 1463.14, 1463.16, and 1463.18 are improper as those provisions address the
distribution of the DUI base fine into various categories rather than authorizing additional fines to be paid by defendant. The People agree regarding sections 1463.16 and 1463.18, but note that section 1463.14, subdivision (b) gives counties the discretion to impose an alcohol testing penalty of no more than $50 when a defendant is convicted pursuant to
Vehicle Code sections 23152 or 23153. Section 1463.16, subdivision (a) mandate s that $50 from every DUI fine be deposited in a special account for the county’s alcoholism program. Section 1463.18, subdivision (a)(1) mandates th e transfer of $20 from every DUI fine to the state restitution fund. Since neither provision auth orizes any additional fine, we shall strike
these amounts from the DUI fine calculus. Section 1463.14, subdivision (a) mandates th e transfer of $50 from every DUI fine to a special account to pay for blood-alcoho l tests. As the People point out, section 1463.14, subdivision (b) of this statute allows a county to impose an additional penalty of up to $50 on defendants convicted of DUI to offs et the cost of testing for alcohol content. This provision requires the county board of supervisors to authorize the penalty by

2 Undesignated statutory references are to the Penal Code.4 resolution, and “shall be imposed only in t hose instances where the defendant has the ability to pay.” Since the trial court made no finding defendant had the ability to pay and
there is no evidence El Dorado County authorized this penalty, we conclude the trial court imposed a $50 fee pursuant to subdivision (a) of section 1463.14. This fee is also
unauthorized and we shall therefore strike it. The next error found by defe ndant is the section 1464 pe nalty assessment of $510. Section 1464, subdivision (a)(1) mandates an a ssessment of “ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon ever y fine, penalty, or forfeiture imposed and collected by the courts for all cr iminal offenses” other than certain parking offenses. The $510 assessment is based on the trial court mistakenly adding the unauthorized amount of $120 under sections 1 463.14, 1464.16, and 1463.18 to the $390 base fine. We shall modify the s ection 1464 penalty assessment to $390. Government Code section 76000, subdiv ision (a)(1) authorizes a county penalty assessment of $7 for every $ 10 of fine, penalty or forfeiture imposed. As applied to the DUI fine, this authorizes a $273 penalty ra ther than three sepa rate assessments of $127.50, $25.50, and $102. (See appendix .) We shall modify the penalty to $273.
The Government Code section 76104.1 fine of $102 is unauthorized, as the statute was repealed by its own terms on January 1, 2014, and applied only to fines, fees, and assessments in Santa Barbara County. We shall strike this fine. Government Code section 76104.6 imposes a fee of $1 for every $10 of every fine to help implement the DNA Fi ngerprint, Unsolved Crime and Innocence Protection Act. The trial court erroneously imposed a $51 fee ra ther than $39, or $1 for every $10 of the $390 base DUI fine. We shall modify the fee accordingly. The trial court imposed a Government C ode section 76104.7, subdivision (a) DNA identification fund penalty of $102. This provision impos es a penalty assessment of $4 for every $10 on the base fi ne. Since the base fine is $390, the assessment should be $156. We shall modify the penalty to this amount.5 Government Code section 70372, subdiv ision (a)(1) establishes a state court construction penalty of $5 for ever y $10 on the base fine. Taki ng the $390 ba se fine, this should be $195. The trial court imposed a “GC 70372 (a) . . . ICNA assessment 2/10” of $102 and a “FC70372(a) . . . State Facilities Su rcharge” of $153. Fi nding that these both
refer to the Government Code section 70372 penalty, we shall modify them to a single penalty of $195. The trial court imposed a section 1465.7 , subdivision (a) su rcharge of $102.
Section 1465.7 authorizes a 20 percent state surcharge on th e base fine. As defendant notes, the proper amount is $78 and we sha ll modify the surcharg e accordingly. Defendant also correctly claims the tria l court erred in imposing a $50 assessment pursuant to section 1463.25. This provision addresses al location of “the moneys from alcohol abuse education and prevention penalty assessments collected pursuant to Section
23196 of the Vehicle Code” an d does not impose any additi onal fine, fee, penalty, or assessment. (§ 1463.25.) We sh all strike the $50 “assessment.”
The trial court’s next error is the im position of a $120 misdemeanor restitution fine pursuant to section 1202.4. At the time of defendant’s August 1, 2012 crimes,
section 1202.4 authorized a minimum restitu tion fine of $120 for misdemeanors and $240 for felonies. (§ 1202.4, subd. (b)(1).) Since defendant was convicted of felonies and the trial court imposed the felony restitution fi ne, the misdemeanor fine was unauthorized
and we shall therefore strike it. Finally, defendant finds an error in th e “AB1273” emergency medical transport penalty. The proper statutory basis is Gove rnment Code section 76000.10, subdivisions (a) and (c)(1), the Emergency Medical Transportation Act, which imposes a $4 penalty for every conviction for a Vehicle Code violati on. We agree with de fendant that the trial court intended to impose this penalty, wh ich was enacted by Assembly Bill No. 2173, effective January 1, 2011. (S tats. 2010, ch. 547, § 2.)6 DISPOSITION The amounts imposed pursuant to secti ons 1463.14, 1463.16, 1463.18, 1202.4, subdivision (b)(1), 1463 .25, and Government Code sec tion 76104.1 are stricken. Penalties, fees, and assessments are modified as follows: Section 1464 to $390, section 1465.7 to $78, Government Code section 76000 to $273, Government Code section 76104.6 to $39, Government Code secti on 76104.7 to $156, and Government Code section 70372 to $195. As modified, the ju dgment is affirmed. The trial court shall prepare an amended abstract of judgment maki ng these modifications. The trial court is directed to state the correct basis for the $39 0 fine as “VC 23550(a)” and $4 penalty as
“Gov Code 76000.10” and to forward a certif ied copy of the amended abstract to the Department of Corrections and Rehabilitation.

ROBIE , Acting P. J.

We concur:

BUTZ , J.

MURRAY , J.7 DUI VC 23152-3
Statute Authority Incorporated in DUI Fine AS OF 07/16/2012*

PC1463.001 PC1463.14 S-M ALP Agency Major (base amount) Alcohol Lab Fee 390.00 (range) 50.00 PC1463.16 ADP Alcohol/Drug Program 50.00 PC1463.18 RDI DUI Restitution 20.00 510.00 PC1464 SPE State Penalty 510.00 GC76000 JCF Jailhouse Construction 127.50 GC76000 AFF Automated Fingerprint 25.50 GC76000 EMF Emergency Medical Fund 102.00 GC76104.1 EMS Additional EMS eff 8-07 102.00 GC76104.6 DNA DNA 51.00 GC76104.7 SON State DNA additional 102.00 GC76104.6 SD3 State DNA additional 102.00 FC70372(a) SFC State Facilities Surcharge 153.00 PC1465

. 7 SCH Surcharge 102.00 GC70372(a) ICN ICNA assessment 2/10 102.00 GC70373 ICM ICNA Surcharge per Chg Conv 30.00 PC1465.8(a) CSA Court Security Assmt PC 1465

. 8a 40.00 PC1463.25 AEP Alcohol Education PC 1463.25 50.00 Fines Charged Separately 2,109.00 PC1202.4 RMI Misdemeanor Restitution PC 1202.4 120.00 VC40508.6(A) DMV DMV Fees VC 40508.6 10.00 PC1205 ADM Admin Fees PC 1205 60.00 AB1273 EMA Emergency Medical Transport 4.00 TOTAL 2,303.00

* Defendant’s offenses occurred on August 1. 2012

APPENDIX