P. v. Hyman

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Hyman 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MORRIS WILLIAM HYMAN,                           Defendant and Appellant.

C072264   (Super. Ct. No. SF11149)

 

            After he
shot his stepson during an argument, defendant Morris William Hyman pled no
contest to attempted murder without
premeditation, admitted personally using a firearm in the commission of the
crime, and was sentenced to prison. 

            Defendant’s
sole contention on appeal is that the $400 DNA collection penalty imposed at
sentencing pursuant to Government Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 76104.7 should be reduced to $300 because the penalty was increased
after his crime was committed.  The
People concede the error.  We agree and
modify the judgment to reduce the fine to $300, the amount authorized by
statute when defendant committed the offense. 


            Based on ex
post facto principles, the amount of the penalty is determined as of the date
the offense was committed.  (See >People v. Saelee (1995) 35 Cal.App.4th
27, 30-31.)  This court has held that
another DNA penalty assessment, imposed pursuant to section 76104.6, is a
punitive ex post facto law with respect to offenses committed prior to its
effective date.  (People v. Batman (2008) 159 Cal.App.4th 587, 591.)  The

People concede that the issue presented by >Batman concerning Government Code

section 76104.6 is “substantially similar” to the question
presented here concerning section 76104.7. 
We accept the People’s concession. 


            The offense
was committed on April 28, 2011.  Sentencing took place on

October 15, 2012.  At the time of the offense, section 76104.7
provided for a penalty assessment of “three dollars ($3) for every ten dollars
($10), or part of ten dollars ($10), . . . upon every fine, penalty,
or forfeiture imposed and collected by the courts for criminal offenses . . . .”  (Stats. 2009-2010, 8th Ex.Sess., ch. 3, § 1,
eff. June 10, 2010.)  By the time of his sentencing, section
76104.7 had been amended to increase the penalty amount to four dollars.  (Stats. 2012, ch. 32, § 25, eff. June 27, 2012.) 

DISPOSITION

            The judgment
is modified to reflect a DNA collection penalty pursuant to
section 76104.7 in the amount of $300. 
The trial court is directed to amend the abstract of judgment and forward
a certified copy of the amended abstract of judgment to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.  As modified, the judgment is affirmed.  

 

 

                                                                                       ROBIE          , J.

                                                                                                

We concur:

 

 

          RAYE           , P. J.

 

 

          MURRAY         , J.