Filed 4/2/13 P. v. Melendez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

JUAN FELIPE MELENDEZ, 

Defendant and Appellant. 

 H037581 

 (Santa Clara County 

 Super. Ct. No. EE907212) 

 Defendant Juan Felipe Melendez appeals after conviction, by jury trial, of second 

degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),1

 attempted second degree robbery 

(§§ 664, 211, 212.5, subd. (c)), possession of a silencer (former § 12520), possession of 

material with intent to make a destructive device (former § 12312), possession of metal 

knuckles (former § 12020, subd. (a)(1)), dissuading a witness (§ 136.1, subd. (c)(1)), and 

conspiracy to commit robbery (§ 182, subd. (a)(1)). The jury found true allegations that 

he personally used a firearm in the commission of the robbery and attempted robbery 

(§ 12022.53, subd. (b)), personally used a firearm in the commission of the conspiracy 

(§ 12022.5, subd. (a)), and was armed with a firearm while dissuading a witness 

(§ 12022, subd. (a)(1)). Defendant pleaded guilty to possession of a controlled substance. 

(Health & Saf. Code, § 11377, subd. (a).) He was sentenced to a 16-year prison term and 

ordered to pay a number of fees and fines. 

 1

 All further statutory references are to the Penal Code unless otherwise indicated. 
2

 On appeal, defendant contends the prosecutor committed misconduct that was 

prejudicial as to count 5, his conviction of possession of material with intent to make a 

destructive device. (Former § 12312.) We will order the judgment modified to include 

applicable penalty assessments on the fees and fines, but otherwise affirm. 

BACKGROUND 

 As defendant’s argument only concerns his conviction of possession of material 

with intent to make a destructive device (count 5; former § 12312), our review of the 

evidence will focus on that count. 

A. Robbery, Attempted Robbery, Conspiracy, and Dissuading Counts 

 Using the name Lucas Rossi, defendant responded to Craigslist ads placed by 

Lawrence Dauch, who was selling an expensive watch, and by Pierre St. Cyr, who was 

selling a video camera. Defendant arranged to meet both men on August 18, 2006. A 

woman using the name Sophia helped defendant set up the meeting with St. Cyr. 

 Defendant met Dauch first, robbing him of the watch and then threatened him. A 

few hours later, defendant attempted to rob St. Cyr of the video camera. In both 

instances, defendant used a gun with a silencer. He also wore a fedora hat, sunglasses, 

and a fake mustache in both crimes. In 2009, defendant was identified by fingerprints 

found on the victims’ vehicles. 

B. Possession Counts 

 On July 22, 2009, officers executed a search warrant at defendant’s apartment. 

They located a silencer, a .22-caliber handgun, three fedora hats, sunglasses, brass 

knuckles, pills containing MDMA, and a computer. The police also located a plastic bag 

containing the following items: smokeless gun powder, a roll of electrical tape, a 

package of rocket motor igniters, two nine-volt batteries, one nine-volt battery wired to a 

push-button switch, an electrician’s tool, a roll of insulated copper wire, a roll of gauged 
3

wire, a four-inch piece of PVC pipe with end caps and a small hole drilled into one end, 

and a seven-inch piece of PVC pipe with a small hole drilled into one end. 

C. Prosecution’s Expert 

 Sergeant Dustin Davis testified as an expert for the prosecution. He worked for 

the Santa Clara County Sheriff’s Office on the bomb squad. He had investigated 

explosives 95 times during the previous five years and testified as an expert twice before. 

 According to Sergeant Davis, a pipe bomb can be constructed from PVC pipe or 

galvanized steel. A person would need to place caps on both ends of the pipe. Gun 

powder or other flammable material would be placed inside the pipe. The material would 

need to be ignited. A person could ignite the bomb with a rocket motor hooked up to a 

battery, with wires running through small holes in the PVC pipes. Thus, the plastic bag 

found in defendant’s apartment contained enough materials to construct two completed 

pipe bombs. Nothing else would be necessary. 

 Sergeant Davis did not believe that the materials were intended to be used for 

model rocket launching. Rockets typically use solid fuel, not powder, because the fuel 

needs to burn at a steady rate, so the gun powder would need to be mixed with a solvent 

and then “ramm[ed]” into the pipe. If the gun powder found in the bag was used as fuel, 

the rocket would simply explode rather than launch into flight. Also, the holes drilled 

into the ends of the pipe were too small to create the necessary thrust. In order to make a 

rocket from the materials, a person would need additional items, including a nose, fin, 

and launch pad. A person would also need to remove an end cap. With the materials in 

the bag, the rocket would not function; it would be “a catastrophic failure.” 

 Sergeant Davis acknowledged that because the spool of wire found in the bag was 

only about 20 feet long, it would be dangerous for a person to set off a pipe bomb with 

the materials in the plastic bag. However, the person could protect himself or herself by 

placing the bomb on the other side of an object such as a wooden desk. 
4

 During Sergeant Davis’s testimony, the jury viewed a video of a PVC pipe bomb 

exploding. In Sergeant Davis’s opinion, the materials found in the plastic bag were 

intended to “be put together and exploded.” He did not believe there was any other 

reasonable use for the items. 

D. Defense Expert 

 Eugene Richardson testified as an expert for the defense. He worked as a bomb 

disposal technician in Florida. Much of his experience with pipe bombs came from his 

time working on military bases. He had disassembled pipe bombs about eight times. He 

had not previously testified in court. 

 Richardson had “a little bit” of experience with model rocketry. He had helped his 

children play with rocket sets that they had purchased from a hobby store. He had friends 

who were “nuts about playing with model rockets,” and he had once attended a 

“jamboree” where people were setting off model rockets. He had reviewed some 

YouTube videos showing the process of making model rockets. 

 Richardson testified that the concepts behind pipe bombs and model rockets are 

similar, although they have “[d]ifferent kinds of propulsion systems and different 

fabrication techniques.” He believed it was “kind of a crapshoot” as to what could be 

made from the materials in the plastic bag. The items could be used to make a model 

rocket, although a person would need to attach a wooden dowel to the pipe. A person 

would also need some clay or cement and something to “solidify” the fuel. Richardson 

believed that the length of wire was consistent with an intent to use the items for model 

rocketry. 

 According to Richardson, the items in the plastic bag could “[n]ot directly” be 

used to make a pipe bomb, because there were no “fragmentation-producing devices.” A 

typical pipe bomb is made out of metal, with metal end caps, not out of PVC pipe, 

because metal has more potential for destruction than plastic PVC pipes. However, he 

admitted that a PVC explosion would create shards of plastic, and that a person could put 
5

nails inside the pipe to make it more destructive. He believed a person would need some 

epoxy cement in order to make a “proper” pipe bomb from the materials in the plastic 

bag, although he admitted the bomb would still explode without being sealed with epoxy. 

 Richardson acknowledged he was being paid for his work on this case. He was 

paid $50 for his initial opinion and would be paid $69.71 per hour, his regular working 

wage, for all of the other time he had put in. He expected to bill for about 20 hours, 

which would total about $1,500. He admitted that he probably would not be testifying if 

he was not going to render an opinion that the materials were likely intended for model 

rocketry. 

E. Charges, Verdicts, and Sentencing 

 Defendant was charged, by first amended information, with second degree robbery 

(count 1; §§ 211, 212.5, subd. (c)), attempted second degree robbery (count 2; §§ 664, 

211, 212.5, subd. (c)), possession of a silencer (count 3; former § 12520), possession of a 

controlled substance (count 4; Health & Saf. Code, § 11377, subd. (a)), possession of 

material with intent to make a destructive device (count 5; former § 12312), possession of 

metal knuckles (count 6; former § 12020, subd. (a)(1)), dissuading a witness (count 7; 

§ 136.1, subd. (c)(1)), and conspiracy to commit robbery (count 8; § 182, subd. (a)(1)). 

The information alleged that defendant personally used a firearm in the commission of 

the robbery and attempted robbery (§ 12022.53, subd. (b)), personally used a firearm in 

the commission of the conspiracy (§ 12022.5, subd. (a)), and was armed with a firearm 

while dissuading a witness (§ 12022, subd. (a)(1)). 

 Defendant initially pleaded not guilty, but changed his plea to not guilty by reason 

of insanity prior to trial. During the guilt phase of trial, he pleaded guilty to count 4, 

possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) After the 
6

jury found him guilty of all remaining counts and found all enhancement allegations true, 

it found him sane at the time of the offenses.2

 On November 3, 2011, the trial court imposed an aggregate 16-year prison term. 

It imposed the two-year lower term for count 1 (robbery), with a 10-year term for the 

firearm use enhancement. It imposed a consecutive eight-month term for count 2 

(attempted robbery), with a three-year, four-month term for the firearm use enhancement. 

It imposed concurrent terms for counts 3 through 7 (the various possession counts), and it 

stayed the term for count 8 (dissuading) pursuant to section 654. 

 Also at the sentencing hearing, the trial court ordered defendant to pay restitution 

to Dauch. It imposed a $2,000 restitution fine (§ 1202.4, subd. (b)) and imposed, but 

suspended, a $2,000 parole revocation fine (§ 1202.45). It imposed $240 in court 

operations assessments (§ 1465.8, subd. (a)(1)), $240 in criminal conviction assessments 

(Gov. Code, § 70373), a $259.50 criminal justice administration fee (Gov. Code, 

§ 29550), a $10 theft fine (§ 1202.5), plus $28.50 in penalty assessments on the theft fine. 

The trial court waived penalty assessments associated with the $50 criminal laboratory 

fee (Health & Saf. Code, § 11372.5, subd. (a)) and the $150 drug program fee (Health & 

Saf. Code, § 11372.7, subd. (a)). 

DISCUSSION 

A. Prosecutorial Misconduct 

 Defendant contends the prosecutor committed misconduct during closing 

argument. He claims the prosecutor impermissibly vouched for the prosecution’s expert 

witness, while also impermissibly denigrating the defense. 

 2

 The jury was only asked to find whether defendant was sane at the time of 

counts 1, 2, 7 and 8 – the robbery, attempted robbery, conspiracy, and dissuading counts. 
7

1. Proceedings Below 

 In addressing count 5, the prosecutor noted that the jury had “heard evidence from 

experts.” She noted that Sergeant Davis had testified that the items found in the plastic 

bag were “intended for use for a pipe bomb.” 

 The prosecutor then argued, “If you believe Sergeant Davis – which you should, 

because he demonstrated to you that he had a very vast knowledge of this – but if you 

choose to believe him, you believe that he described these materials, that all you needed 

to do was put the powder in the pipe, screw on the end caps, put the fuse in and light it or 

set off the igniter, then it’s a pipe bomb. If you believe Sergeant Davis, which you 

should, count 5 has been met.” 

 Defense counsel did not object to the above argument. The prosecutor continued 

by emphasizing that defendant had “everything you need in a pipe bomb” and noting that 

he had also apparently made the silencer himself. 

 The prosecutor then discussed the defense theory – that “it’s a rocket” – and noted 

that the theory was based on the testimony of the defense expert. She argued the defense 

expert had little knowledge about model rockets and noted that he had been “hesitant” to 

admit that the items could be a pipe bomb. She asked, “Why? Ask yourself. [¶] You’ll 

get an instruction on judging witness credibility. Bias is one of the ways that you can 

determine – is someone biased when they’re being paid by somebody to testify a certain 

way? [¶] Remember my last question. If you come in here and you testify and you don’t 

say it’s a model rocket, you don’t get paid. He’s a paid expert. You can get experts to 

come in here in many courts and say whatever they want you to say[.]” 

 Defense counsel objected at that point, but the trial court overruled the objection. 

The prosecutor continued her argument by referring once again to Sergeant Davis’s 

testimony that the items “were sufficient to make two pipe bombs.” She also reiterated, 

“His testimony is credible and you should believe it.” 
8

 During his closing argument, defense counsel argued that Sergeant Davis was the 

biased expert. He argued that “it’s not always a result of money, necessarily.” In this 

instance, he argued, Sergeant Davis’s bias resulted from his position as a public safety 

officer. Defense counsel argued that Sergeant Davis saw the world “through cop-colored 

lenses.” 

 Defense counsel also argued that there were two reasonable interpretations of the 

evidence and that the jury had to adopt the one that pointed to innocence. He noted that 

if the materials were used for a pipe bomb, they would leave only plastic shrapnel and do 

little damage. He noted that according to the defense expert, defendant would only have 

needed a few other items to make a rocket, and that Sergeant Davis had essentially agreed 

with that assessment. He reiterated that even if the rocket theory was not “the best 

explanation,” the jury was required to adopt it as long as it was “a reasonable 

explanation.” 

 In her rebuttal argument, the prosecutor argued that Sergeant Davis was 

knowledgeable and that he had identified “many things that are wrong with this being a 

model rocket.” She then argued, “The mere fact that an expert from Florida – we’re in 

Silicon Valley. You mean to tell me that you couldn’t find one person locally that could 

say that this is a model rocket? Not one person. Moffett Field’s right there. Not one 

person would come to this court locally to say those items are a model rocket. Think 

about that for a second. Why? Why? Because it’s not reasonable.” 

 Defense counsel objected, but the trial court overruled the objection. The 

prosecutor continued her rebuttal and soon returned to the subject of “the expert 

testimony from the defense.” She argued, “Think about his demeanor. Think about his 

testimony. Think about what he was saying. Why would somebody who is coming 

here ... testify to you that something is a model rocket? What’s his background in that? 

He went on the Internet? He got his expertise from YouTube? YouTube is not a source 

of expert information.” 
9

 The prosecutor argued that ultimately, the defense expert had agreed that the 

materials would make a pipe bomb. She argued, “He reluctantly said possibly. 

Reluctantly, because he knows he’s here to please the person who’s paying him.” 

 At the end of her rebuttal, the prosecutor argued that “the defense[-]hired expert 

was not reasonable. ... [Defendant] happened to have a – have a bag of items that is the 

worst model rocket you’ve ever seen because it won’t work. That doesn’t make sense. 

It’s not logical because it’s just not supported by the evidence.” 

 The following day, defense counsel asked for a jury instruction to address the 

prosecutor’s argument about the defense expert. The proposed instruction stated: 

“Yesterday, the prosecutor suggested during her closing argument that the defense 

attorney could hire an expert ... ‘to say whatever he wanted,’ .... This suggestion was 

improper. You are instructed to disregard this remark. You shall not consider this 

remark in any way during your deliberations.” 

 Defense counsel noted that he had “made a timely objection” but had not asked for 

an admonition at the time. He specified that his failure to do so was not a tactical 

decision. 

 The trial court declined to give the instruction, but reminded the jury that the 

“statements by the attorneys during the argument are not evidence.” The trial court also 

instructed the jury with CALCRIM No. 222, which reiterated that the attorneys’ closing 

arguments “are not evidence.” In addition, the trial court instructed the jury with 

CALCRIM No. 332, which provided guidance for “evaluating the believability of an 

expert witness.” 

2. Analysis 

 “ ‘Under California law, a prosecutor commits reversible misconduct if he or she 

makes use of “deceptive or reprehensible methods” when attempting to persuade either 

the trial court or the jury, and it is reasonably probable that without such misconduct, an 

outcome more favorable to the defendant would have resulted. [Citation.] Under the 
10

federal Constitution, conduct by a prosecutor that does not result in the denial of the 

defendant’s specific constitutional rights ... but is otherwise worthy of condemnation, is 

not a constitutional violation unless the challenged action “ ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.’ ” [Citation.]’ 

[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679.) 

 “If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the 

jury, we consider how the statement would, or could, have been understood by a 

reasonable juror in the context of the entire argument. [Citations.]” (People v. Woods 

(2006) 146 Cal.App.4th 106, 111.) “ ‘ “A prosecutor is given wide latitude during 

argument. The argument may be vigorous as long as it amounts to fair comment on the 

evidence, which can include reasonable inferences, or deductions to be drawn therefrom. 

[Citations.] It is also clear that counsel during summation may state matters not in 

evidence, but which are common knowledge or are illustrations drawn from common 

experience, history or literature.” [Citation.] . . .’ ” (People v. Ward (2005) 36 Cal.4th 

186, 215 (Ward).) 

 “In general, ‘ “ ‘a defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion— and on the same ground—the defendant 

[requested] an assignment of misconduct and [also] requested that the jury be 

admonished to disregard the impropriety.’ ” ’ [Citation.]” (People v. Young (2005) 34 

Cal.4th 1149, 1184-1185 (Young).) 

a. Vouching for the Credibility of the Prosecution Expert 

 Defendant first contends that the prosecutor committed misconduct by arguing that 

the Sergeant Davis’s testimony was “credible and you should believe it.” He contends 

this constituted improper vouching. 

 We first observe that none of defendant’s objections below concerned the 

prosecutor’s remarks about Sergeant Davis’s credibility. Therefore, this claim may be 

deemed waived. (See Young, supra, 34 Cal.4th at pp. 1184-1185.) However, even 
11

assuming that defendant’s other objections encompassed these remarks, this claim of 

prosecutorial misconduct lacks merit. 

 “ ‘[A] prosecutor is prohibited from vouching for the credibility of witnesses or 

otherwise bolstering the veracity of their testimony by referring to evidence outside the 

record. . . . However, so long as a prosecutor’s assurances regarding the apparent honesty 

or reliability of prosecution witnesses are based on the “facts of [the] record and the 

inferences reasonably drawn therefrom, rather than any purported personal knowledge or 

belief,” [her] comments cannot be characterized as improper vouching. [Citations.]’ 

[Citation.]” (Ward, supra, 36 Cal.4th at p. 215.) 

 Here, the prosecutor’s argument that Sergeant Davis’s testimony was “credible 

and you should believe it” did not amount to improper vouching. The prosecutor did not 

suggest that her belief in the witness’s credibility was based on any facts outside the 

record or her own personal knowledge. (Compare People v. Turner (2004) 34 Cal.4th 

406, 433 [prosecutor referred to his prior experience with the witnesses].) In the context 

of her argument, it was clear that the prosecutor was referring to Sergeant Davis’s 

experience when she argued that he was credible. The challenged remark followed her 

argument that the jury should believe Sergeant Davis “because he demonstrated to you 

that he had a very vast knowledge of this.” Thus, the prosecutor “properly relied on facts 

of record and the inferences reasonably drawn therefrom, rather than any purported 

personal knowledge or belief. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 

757.) 

b. Impugning the Defense 

 Defendant next contends that the prosecutor improperly denigrated the defense 

case and trial counsel by emphasizing that the defense expert, Richardson, was paid to 

give an opinion that the materials in the plastic bag were more likely to be made into a 

model rocket than a pipe bomb. 
12

 “A prosecutor commits misconduct if he or she attacks the integrity of defense 

counsel, or casts aspersions on defense counsel. [Citations.]” (People v. Hill (1998) 17 

Cal.4th 800, 832.) “ ‘An attack on the defendant’s attorney can be seriously prejudicial 

as an attack on the defendant himself, and, in view of the accepted doctrines of legal 

ethics and decorum [citation], it is never excusable.’ [Citation.]” (Ibid.) 

 It is not misconduct for a prosecutor to “remind the jurors that a paid witness may 

accordingly be biased.” (People v. Arias (1996) 13 Cal.4th 92, 162.) Thus, our Supreme 

Court found no misconduct where a prosecutor commented that a defense expert had 

been paid significant fees to “ ‘come[] up with something that excuses [the defendant’s] 

responsibility.’ ” (People v. Cook (2006) 39 Cal.4th 566, 613 (Cook).) The Cook court 

rejected the defense claim that the prosecutor’s argument implied that the expert had 

given “ ‘false testimony for a fee,’ thereby impugning defense counsel’s integrity for 

having, in effect, bought the expert’s testimony.” (Id. at pp. 613-614; see also People v. 

Spector (2011) 194 Cal.App.4th 1335, 1407 [no misconduct where prosecutor referred to 

“ ‘paid-to-say witnesses’ ”]; People v. Monterroso (2004) 34 Cal.4th 743, 783-784 

(Monterroso) [no misconduct where prosecutor referred to the “industry of these defense 

experts that bounce around from trial to trial, state to state, collecting good money for 

testimony”].) 

 Here, too, the prosecutor’s comments about Richardson being paid to give a 

favorable opinion for the defense were “within the bounds of proper argument.” 

(Monterroso, supra, 34 Cal.4th at p. 784.) Moreover, the jury instructions made it clear 

that the prosecutor’s argument was not evidence and that the jury was responsible for 

evaluating the credibility of the expert witnesses. (See CALCRIM Nos. 222 & 332.) 

“Defendant offers no reason to believe the jury failed to follow [these] instruction[s]. 

[Citation.]” (Monterroso, supra, at p. 784.) In fact, the prosecutor referred to the jury 

instructions regarding witness credibility when she argued that Richardson was biased 

because he was a “paid expert.” 
13

 We conclude there was no prosecutorial misconduct. 

B. Fines and Fees 

 Our review of the record reveals two jurisdictional errors concerning the fees and 

fines imposed at the November 3, 2011 sentencing hearing. First, the trial court imposed 

$240 in court operations assessments (§ 1465.8, subd. (a)(1)) – that is, $30 for each of the 

eight counts. At the time of defendant’s convictions, the court operations assessment was 

$40 per count. (Stats. 2011, ch. 40, § 6, eff. June 30, 2011; see People v. Alford (2007) 

42 Cal.4th 749, 759 [fee imposed pursuant to section 1465.8, subdivision (a)(1) serves a 

nonpunitive purpose and thus does not violate federal or state prohibitions against ex post 

facto statutes].) We will order the judgment modified to reflect the proper amount of the 

court operations assessments. 

 Second, the trial court waived all penalty assessments associated with the criminal 

laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)) and the drug program fee 

(Health & Saf. Code, § 11372.7, subd. (a)). However, the penalty assessments are 

mandatory. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Voit

(2011) 200 Cal.App.4th 1353, 1374 (Voit).) 

 In Voit, this court noted that “there are seven assessments, surcharges, and 

penalties parasitic to an underlying fine.” (Voit, supra, 200 Cal.App.4th at p. 1374.) In 

this case, they are as follows: (1) a 100 percent state penalty assessment (§ 1464, subd. 

(a)(1)), (2) a 20 percent state surcharge (§ 1465.7), (3) a 35 percent state courthouse 

construction penalty (Gov. Code, § 70372), (4) a 70 percent additional penalty (Gov. 

Code, § 76000, subds. (a)(1), (e)), (5) a 20 percent additional penalty for emergency 

medical services (Gov. Code, § 76000.5, subd. (a)(1)), (6) a 10 percent additional penalty 

“for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence 

Protection Act” (Gov. Code, § 76104.6, subd. (a)(1)), and (7) a 10 percent additional 
14

state-only penalty to finance Department of Justice forensic laboratories (Gov. Code, 

§ 76104.7[3]

). 

 We will order imposition of the applicable assessments, surcharges, and penalties.4

DISPOSITION 

 The judgment is modified in the following respects: 

 (1) To set the amount of the court operations assessments at $320. 

 (2) To include the following assessments, surcharges, and penalties on the $50 

criminal laboratory fee imposed pursuant to Health and Safety Code section 11372.5, 

subdivision (a) and the $150 drug program fee imposed pursuant to Health and Safety 

Code section 11372.7, subdivision (a): a 100 percent state penalty assessment (§ 1464, 

subd. (a)(1)), a 20 percent state surcharge (§ 1465.7), a 35 percent state courthouse 

construction penalty (Gov. Code, § 70372), a 70 percent additional penalty (Gov. Code, 

§ 76000, subd. (a)(1)), a 20 percent additional penalty for emergency medical services 

(Gov. Code, § 76000.5, subd. (a)(1)), a 10 percent additional penalty (Gov. Code, 

§ 76104.6, subd. (a)(1)), and a 10 percent additional penalty to finance Department of 

Justice forensic laboratories (Gov. Code, § 76104.7). 

 3

 The Government Code section 76104.7 penalty was increased subsequent to the 

commission of defendant’s offenses. (See Stats. 2009-2010, 8th Ex. Sess., ch. 3, § 1, eff. 

June 10, 2010 [increasing penalty to 30 percent]; Stats. 2012, ch. 32, § 25, eff. June 27, 

2012 [increasing penalty to 40 percent].) 

4

 Any party wishing to contest this issue may petition for rehearing. (Gov. Code, 

§ 68081.) 
15

 The clerk of the superior court is ordered to prepare an amended abstract of 

judgment reflecting these modifications and to forward a copy to the Department of 

Corrections and Rehabilitation. As modified, the judgment is affirmed. 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, J. 

WE CONCUR: 

__________________________ 

ELIA, ACTING P.J. 

__________________________ 

MÁRQUEZ, J.