Filed 7/10/14 P. v. Cota CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME COTA,

Defendant and Appellant. H040332 (Santa Clara County Super. Ct. No. C1239992)

Defendant Jaime Cota pleaded no contest to several sex offenses all of which were alleged to have occurred in May 2000. He was sentenced to a total of five years in prison and ordered to pa y various fines and penalties, incl uding a $300 fine, plus penalty assessment pursuant to Penal Code section 290.3, subdivision (a). 1 On appeal, Cota argues this fine must be reduced because at the time the offenses were committed the fine provided under section 290.3, subdivision (a) was only $200. He also argues that the corresponding penalty assessment must be recalculated to reflect the lower fine. The People concede the issues, and we agre e the concession is appropriate. We will therefore modify the judgment to reflect the proper fine and penalty

assessment and affirm th e judgment as modified.

1 Further unspecified statutory re ferences are to the Penal Code.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND 2 On May 15, 2000, Santa Clara County Sher iff’s deputies responded to a report of a rape. The victim was a woman in her late 40s who requires a wheelchair to get around. She lived in a special housing complex and was taking out her garb age one evening when a man approached her from behind. The man to ld her to be quiet or he would hurt her. He directed her to return to her apartment, and he followed, redirecting her wheelchair when she tried to go a different direction. The man pushed her wheelchair into the apartment, then assaulted her in her bedroom. She provided a description of the subject to the deputies, and a DNA sample was obtained from a bite mark on the victim’s breast. However, no immediate match was made and no suspect identified. In March 2011, the Department of Jus tice notified the Santa Clara County Crime Laboratory that a “DNA CODIS hit” 3 had been made, implicating Cota. Cota was interviewed by a detective in March 2012, who determined Cota was a maintenance worker at the victim’s apar tment complex in May 2000. Cota agreed to provide a DNA sample, which matched the sample taken fro m the victim, and he was subsequently

arrested. Cota was charged by information with tw o counts of forcible oral copulation (§ 288a, subd. (c)(2), counts 1 & 3 ), one count of forcible digita l penetration (§ 289, subd. (a)(1), count 2) and one count of attempted forc ible rape (§ 664, 261, subd. (a)(2), count 4). The information further alleged that the forcible oral copulation and digital penetration were committed in the commission of a kidnapping and burglary within the

2 As Cota entered a plea of no contest, we derive the factual background from the probation report and other documents included in the record.

3 The record does not disclose what th e acronym “CODIS” stands for. On the court’s own motion, we take judicial notice of the fact that CODIS is the acronym for the Combined DNA Index System maintained and managed by the Federal Bureau of Investigation (<http://www.fb i.gov/about-us/lab/biometric- analysis/copy_of_codis> [as of July 10, 2014]).3 meaning of section 667.61, subdi visions (a) and (d). Cota pleaded no contest to all of the charges in exchange for dism issal of the section 667.61 a llegations and an eight-year prison sentence with ha lf-time credits. After the parties discovered Cota was st atutorily ineligible for half-time credits, the stipulated sentence was modified to five years with 15 percent credits. The trial court sentenced Cota to a total of five years in stat e prison, consisting of the lower term of three years on count 1, consecutive to a two-year term (one-third the middle term) on count 2. Concurrent lower term sentences were impos ed on counts 3 and 4. Cota was awarded total credits of 588 days on count 1, but no credits on count 2. Th e trial court imposed various fines and fees, including a $300 fine, plus penalty assessment, pursuant to section

290.3. 4

II. D ISCUSSION Cota contends that the $300 section 290. 3 fine was an ex post facto assessment. He argues the fine must be reduced because th e version of the statute in effect when his offenses were committed (2000) provided for a fine of only $ 200. He also argues that the $510 penalty assessment imposed mu st be recalculated. We agree. “Article I, section 10, clause 1 of the fe deral Constitution and article I, section 9 of the state Constitution prohibit the passage of ex post facto laws. [Citation.] California’s ex post facto law is analyzed in the same manner as the federal prohibition. [Citation.] ‘[T]he ex post facto clauses of the state and federal Constituti ons are “aimed at laws that

4 The minute order mistakenly reflects th is fine was imposed pursuant to Health and Safety Code section 11350d. This statute is implicated where a defendant is granted probation in a case involving possession of a controlled substance, but Cota was not charged with any such offense nor was he granted probation. The abstract of judgment does not repeat this error, but makes a new one. It mistakenly show s that the fine was imposed pursuant to sections 29800 and 303 05. Those statutes do not impose fines; rather, they set forth restrictions relating to firearms and ammunition. Cota was in fact advised at sentencing he was subject to t hose restrictions, but those statutes are not otherwise relevant to this appeal.4 ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” ’ ” ( People v. Alford (2007) 42 Cal.4th 749, 755.) “F ines arising from convictions are generally considered punishment.” ( Id . at p. 757.) In determ ining whether a fine or penalty assessment increases the punishment for a criminal act, the court must consider “ ‘whether the Legislature intended the provis ion to constitute punishment, and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent.’ ” ( Id . at p. 755.) Section 290.3 provides that persons convicted of specified o ffenses “shall . . . be punished by a fine . . . .” Thus, the fine that section 2 90.3 imposes is punitive on its face. Section 290.3 as originally enacted re quired a $200 fine for a defendant’s first conviction and a $300 fine for each subsequent conviction. (Former § 290.3, subd. (a); Stats. 1995, ch. 91, § 121.) The fines were raised to $300 and $500 on September 20, 2006. (Former § 290.3, subd. (a); Stats. 200 6, ch. 337, § 18; see Historical and Statutory Notes, 48 West’s Ann. Pen. Code (2014 ed.) foll. § 290.3, p. 138.) It is undisputed that Cota’s offens es were committed on May 15, 2000, approximately six years before section 290.3 was amended and the applicable fines were raised to $300 and $500. T hus, imposition of a $300 fine violated the constitutional prohibition against ex post facto punishment. ( People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249.) The $300 fine must be reduced to $200, the amount statutorily

authorized when Cota committed his crimes. ( Ibid .) Our discussion of the statutory basis fo r each penalty assessment references the

statute in effect when Cota committed his crimes. (See People v. Batman (2008) 159 Cal.App.4th 587, 590-591.) Section 290.3 fines were s ubject to a 100 percent state penalty assessment (“ten dollars ($10) for ev ery ten dollars ($10) or fraction thereof”) under former section 1464. (Former § 1464, subd. (a).) Section 290.3 fines were also subject to county penalty assessments. Subdivision (a) of former Government Code5 section 76000 imposed a 70 percent (“seven do llars ($7) for every ten dollars ($10) or fraction thereof”) penalty assessment. (Former Gov. Code, § 76000, subd. (a).)

When these assessments ar e recalculated based on a $200 section 290.3 fine, the penalty amounts are $200 under former section 1464, and $140 under former

Government Code section 76000 for a total penalty assessment of $340. To sum up, the judgment must be modified to reflect a section 290.3 fine of $200 and a total of $340 in penalty assessments attached to the section 290.3 fine, specifically, (1) $200 under former section 1464, and (2) $140 under former Government Code

section 76000.

III. D ISPOSITION We modify the judgment as follows: The Penal Code section 290.3 fine is reduced to $200 and th e corresponding penalty assessment is reduced to $340. The trial6 court is directed to prepare an amended abst ract of judgment and to forward a certified copy of the amended abstract to the Depa rtment of Corrections and Rehabilitation. As modified, the judgment is affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Mihara, J.