P. v. Reyes CA6

Filed 5/21/13 P. v. Reyes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H037362
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F18058)

v.

MARTIN TAPIA REYES,

Defendant and Appellant.

Defendant Martin Tapia Reyes appeals after conviction, by jury trial, of robbery
(Pen. Code, § 211)1 and active participation in a criminal street gang (§ 186.22,
subd. (a)). The trial court found that defendant had two prior serious felony convictions
(§ 667, subd. (a)(1)) that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).
Defendant was sentenced to an indeterminate term of 25 years to life for the
robbery, plus a 10-year determinate term for the prior serious felony allegations. The
trial court imposed a concurrent indeterminate term of 25 years to life for the criminal
street gang offense. It imposed a $66 crime prevention fine (§ 1202.5) as well as other
fees and fines.
On appeal, defendant claims there is insufficient evidence to support his
conviction of actively participating in a criminal street gang. (§ 186.22, subd. (a).)

1
All further statutory references are to the Penal Code unless otherwise indicated.
Based on the recent California Supreme Court case of People v. Rodriguez (2012) 55
Cal.4th 1125 (Rodriguez), we agree that defendant‟s conviction of active participation in
a criminal street gang must be reversed. We also agree that this matter should be
remanded for a new sentencing hearing, so the trial court can reconsider defendant‟s
motion to dismiss his prior strikes, recalculate the fees and fines, and specify the statutory
basis for the penalty assessments used to calculate the $66 fine that was imposed pursuant
to section 1202.5, and award him presentence conduct credit.

BACKGROUND
The evidence at trial concerned two separate incidents: the robbery of a surf shop
on June 28, 2009 and a jail fight on October 28, 2009. Defendant‟s two convictions
stemmed from the surf shop incident only, as the jury was unable to reach a verdict
regarding the charges based on the jail fight.
A. Surf Shop Incident
On June 28, 2009, Kristian P. Ivanov was working at the La Selva Surf Shop. The
shop was very small – approximately seven feet wide and 20 feet deep. It had only a
front entrance. The sales counter was in the back of the store. Next door to the surf shop
was a small grocery with a deli inside.
1. Ivanov’s testimony
Ivanov was working alone in the surf shop that day. Defendant entered the shop at
around 10:30 a.m., along with Xavier Carmona. Defendant was wearing shorts. He had
no shirt on, but he was carrying a white t-shirt in his pocket. Defendant had a number of
visible tattoos on his chest and arms. He did not look like a typical customer.
Defendant approached Ivanov and engaged in some small talk. Defendant
indicated that he was interested in buying a pair of sweatpants for his girlfriend. Ivanov
helped defendant select a pair of sweatpants. Meanwhile, Carmona stood in the shop‟s
doorway, looking in and out.

2
 Defendant told Ivanov that he was a Norteño gang member. He explained that the
star tattoo on his chin symbolized his gang, and he claimed to have gotten that tattoo
recently. He also claimed to have a “[f]airly high” status in the gang. Defendant said he
was a tattoo artist and that he could “hook [Ivanov] up with some tattoos.”
Although defendant did not appear intoxicated, he told Ivanov that he was
“buzzed” or “buzzing.” He asked if Ivanov could “hook him up with a marijuana
dealer.” Ivanov said he did not know where to find a marijuana dealer. Defendant
reiterated his request and appeared to become frustrated. Defendant asked Ivanov to
“hook him up,” meaning give him the sweatpants or other merchandise for free. Ivanov
declined.
Defendant took out the money to pay for the sweatpants. He had “a lot” of money
rolled up, including $100 bills, $50 bills, and $20 bills. He gave Ivanov $40 for the
sweatpants, which cost $30. Ivanov gave defendant $10 in change.
Defendant then indicated he had changed his mind about buying the sweatpants.
Ivanov returned the two $20 bills that defendant had given him and asked for the two $5
bills he had given defendant as change. Defendant refused and took a second pair of
sweatpants from a rack. Ivanov said defendant could not do that, but defendant
responded, “I [can] do this if I want.”
Although Carmona had left the shop for a few minutes, he had returned to the
doorway by this time. After Ivanov refused to give defendant the sweatpants for free,
Carmona said, “Come on, man. Let‟s just get out of here.” Instead, defendant instructed
Carmona to shut the door. Carmona responded, “No. Let‟s just get out of here.”
Defendant reiterated his command that Carmona shut the door, and Carmona complied.
Ivanov said “stop” and said he would hook defendant up.
Defendant came behind the counter. He boxed Ivanov in and “nudged” him with
his chest. Defendant said, “[D]o you want to force me to be pushed to the next level” or

3
“do you want me to get physical.” He also said, “I could have robbed you.” Ivanov felt
intimidated.
Before leaving, defendant told Ivanov, “[P]eople like you call the police.” He also
said, “I will be back.” Ivanov was afraid to call the police right away because he
believed defendant and Carmona might come back. After ten minutes, he went to the
grocery store to tell the owner what had happened. He then returned to the surf shop,
where he called his manager and 911.
2. Testimony of Grocery Employees
Robert Zottarelli was working as the cashier at the grocery store on June 28, 2009.
At some point that morning, a young Hispanic woman came in and asked to use the
bathroom, which was in the back of the store. A second female came in, said she was the
other woman‟s cousin, and also asked to use the bathroom. Carmona came in, stood near
the ice machine for a short time, then went to the back of the store.
Roxanne Carlson was working in the deli, which was in the back of the grocery
store. She saw the two women go into the bathroom. Carmona came up to her shortly
thereafter and asked if the women were in the bathroom. He introduced himself as
“Xavier” and talked to her for a few minutes, telling her that he was “with his friends at
the beach.”
At about the same time, a four-door truck was parked outside the grocery store. It
was playing loud music and all four doors were open. Carlson saw Carmona standing
next to the truck. After the truck left, Ivanov came into the store and told Zottarelli he
had been robbed.
3. Investigation and Identification
Santa Cruz County Sheriff Deputy Daniel Brierley responded to a call at about
11:00 a.m. and proceeded to a spot on La Playa Boulevard near the cliffs. He saw a gray
GMC Sierra pickup truck and six people: two females and four males, including

4
defendant and Carmona. Two pairs of brand new sweatpants from the surf shop were
inside the truck.
Defendant was wearing shorts and had no shirt on. He had a tattoo of the word
“Norteno” on the small of his back and a tattoo of a star under his lip. Carmona was
wearing khaki or grey shorts. He was also wearing a red belt with a “W” on the buckle.
The two other males were named Rocha and Escobar. Rocha had tattoos on his
elbows: one dot on his right elbow and four dots on his left elbow. He was wearing blue
jeans and a watch with a red “N” on it.
Another deputy brought Ivanov to the cliff area. Deputy Brierley did an infield
showup of defendant and Carmona only. He did not believe that Rocha or Escobar
matched the descriptions provided by dispatch, although according to dispatch, one of the
robbery participants was wearing blue jeans, which Rocha had on. Ivanov positively
identified both defendant and Carmona.
B. Jail Incident
On October 28, 2009, Correctional Officer Marcus Hallas was working at the
Santa Cruz County jail. He escorted defendant and two other inmates (Jeremy Heredia
and Carlos Zuniga) from the medical area to the N unit.
Along the way, the three inmates attacked Matt Nelson, another inmate, who was
painting. Zuniga punched and kicked Nelson. Defendant threw punches and stomped at
Nelson‟s head. Heredia was unable to connect any blows because Zuniga and defendant
were in his way. The inmates ignored Officer Hallas‟s commands, so he used pepper
spray to stop the fight. Nelson was not visibly injured, but he had some redness on his
face. Nelson had claimed to be a Norteño “dropout” several years earlier.
C. Gang Evidence
Santa Cruz County Sheriff Detective Christopher Clark testified as the
prosecution‟s gang expert. Clark described the history of the Norteño gang as well as the
code of conduct governing the gang. He explained the rivalry between Norteños and

5
Sureños. He described the symbols of the Norteño gang, which include a five-pointed
star, the number 14 (representing that the letter “N” is the fourteenth letter of the
alphabet), and the color red.
Detective Clark testified that Norteños engage in criminal activities, which
“[p]rimarily” include robberies, illegal drug transactions, and violence. He testified that
engaging in such criminal activity is one of the primary activities of the Norteño gang.
Detective Clark described a February 2007 incident involving Richard Juan
Martinez, a Norteño gang member who was later convicted of assault with a gang
enhancement. He also described a March 2007 incident involving Francisco Vasquez, a
Norteño gang member who was later convicted of attempted robbery with a gang
enhancement.
According to Detective Clark, defendant had a number of gang-related tattoos,
including the star on his face, the Roman numeral XIV on his stomach, a Mayan figure
on his chest with the number 14 on it, and the word “Norteno” across his lower back.
Carmona also had gang-related tattoos, including the Roman numeral XIV on his left
hand. According to Clark, Carmona had admitted involvement in a gang-related jail fight
and had previously admitted he “backs up” Norteños.
Several stipulations were read to the jury. They provided:
“It is hereby stipulated between the parties that [defendant] has made the
following admissions of gang affiliation to law enforcement officers: [¶] One, on May 2,
2009, [defendant] stated that he associated with a gang, and he would associate with
Northerners only. He stated he would not associate with Southerners. [¶] Two, on
November 25th, 2008, [defendant] stated that he associated with a gang and he would
associate with Northerners only. He stated he would not associate with Southerners. [¶]
Three, on August 16th, 2008, [defendant] stated that he associated with the Norteno gang
and would associate with Northerners only. He stated he would not associate with
Surenos. [¶] Four, on July 22, 2008, [defendant] stated that he was a Northern affiliate

6
and would associate with Northerners only. He stated he would not associate with
Southerners.
“It is also hereby stipulated between the parties that defendant Martin Tapia was
convicted of a felony offense listed in Penal Code section 186.22 (e) on August 2nd,
1996. The offense took place on July 21st, 1996. During the commission of the offense,
[defendant] displayed a tattoo of XIV on his stomach and told witnesses he was from
North Side. He was in the company of four other Norteno gang members when he
committed the offense. [Defendant] was not in Santa Cruz County from 1996 to
September 2002.
“It is further stipulated between the parties that defendant Martin Tapia was
subsequently convicted of another felony offense listed in Penal Code section 186.22(b)[2]
on September 11th, 2003. The offense took place on October 11th, 2002. [¶] During the
commission of that offense, [defendant] shouted, [„]Don‟t come around here. I am from
North Side.[‟] He also yelled, [„]Let me teach these Vatos a lesson. I am WVN. I have
XIV across my stomach.[‟] He was also convicted of a gang enhancement under Penal
Code section 186.22 (b) because the crime was committed for the benefit of, in
association with, or at the direction of a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members. [Defendant] was not in
Santa Cruz County from September 2003 until May of 2007.”
D. Charges, Verdicts, and Sentencing
On May 20, 2010, after the trial court granted the District Attorney‟s motion to
consolidate, the District Attorney filed a first amended information charging defendant
with active participation in a criminal street gang (count 1; § 186.22, subd. (a)), robbery
(count 2; § 211), assault by means likely to produce great bodily injury (count 3; former

2
It appears the stipulation was intended to refer to section 186.22, subdivision (e),
which lists a number of offenses that can show a “ „pattern of criminal gang activity.‟ ”

7
§ 245, subd. (a)(1)), and resisting arrest (count 4; § 148, subd. (a)). The information
alleged that counts 2 through 4 were committed for the benefit of, at the direction of,
or in association with a criminal street gang (§ 186.22, subds. (b) & (d)). The
information further alleged that defendant had two prior serious felony convictions
(§ 667, subd. (a)(1)) that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).
Codefendant Carmona was charged with active participation in a criminal street
gang (§ 186.22, subd. (a)) and robbery (§ 211), with an allegation that the robbery was
committed for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)).
A joint jury trial began on May 25, 2010.
On June 7, 2010, the jury found Carmona not guilty of both charged offenses
(active participation in a criminal street gang and robbery). The jury found defendant
guilty of active participation in a criminal street gang (count 1) and robbery (count 2).
The jury was unable to reach a verdict on the charges of assault by means likely to
produce great bodily injury (count 3) and resisting arrest (count 4). The jury made a not
true finding on the allegation that the robbery was committed for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The trial
court declared a mistrial as to counts 3 and 4, and it ultimately dismissed those counts
upon the prosecutor‟s motion. The trial court found all of the prior conviction allegations
true.
At the sentencing hearing on July 29, 2010, the trial court sentenced defendant to a
term of 25 years to life for the robbery, plus a 10 year determinate term for the two prior
serious felony allegations. It imposed a concurrent term of 25 years to life for the crime
of actively participating in a criminal street gang. The trial court ordered defendant to
pay a $10,000 restitution fine (§ 1202.4, subd. (b)), a suspended $10,000 parole
revocation fine (§ 1202.45), a $60 court security fee (§ 1465.8), a $60 critical needs fee
(Gov. Code, § 70373), and a $66 crime prevention fine (§ 1202.5).

8
 DISCUSSION
A. Active Participation in a Criminal Street Gang
Section 186.22, subdivision (a) provides: “Any person who actively participates
in any criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by imprisonment in
the state prison for 16 months, or two or three years.”
“The elements of the gang participation offense in section 186.22(a) are: First,
active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive; second, knowledge that the gang‟s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
(People v. Lamas (2007) 42 Cal.4th 516, 523.)” (Rodriguez, supra, 55 Cal.4th at
p. 1130.)
Defendant contends the prosecution presented insufficient evidence of each
element of the offense: (1) his active participation; (2) his knowledge of the pattern of
criminal gang activity; and (3) his “willful promotion, furtherance, or assistance” of
“felonious criminal conduct” by members of the gang. (Rodriguez, supra, 55 Cal.4th at
p. 1130; see § 186.22, subd. (a).) Defendant also claims there was insufficient evidence
that one of the “primary activities” of the Norteño gang (§ 186.22, subd. (f)) is the
commission of the predicate offenses listed in section 186.22, subdivision (e).
In Rodriguez, the California Supreme Court held that a gang member does not
violate section 186.22, subdivision (a) if he or she “commits a felony, but acts alone[.]”
(Rodriguez, supra, 55 Cal.4th at p. 1128.) In order to violate section 186.22,
subdivision (a), the requisite “felonious criminal conduct” (§ 186.22, subd. (a)) must “be
committed by at least two gang members.” (Rodriguez, supra, 55 Cal.4th at p. 1132.)

9
 We requested supplemental briefing on Rodriguez, which was filed after the
original briefing was completed in this case. Defendant argues, and the Attorney General
concedes, that Rodriguez supports his claim that the prosecution presented insufficient
evidence that he “willfully promote[d], further[ed], or assist[ed] in . . . felonious criminal
conduct by members of [the Norteño] gang.” (§ 186.22, subd. (a).) As we shall explain,
we will accept the Attorney General‟s concession.
The Rodriguez defendant was a Norteño gang member who committed an
attempted robbery. “There was no evidence that [the] defendant acted with anyone else.”
(Rodriguez, supra, 55 Cal.4th at p. 1129.) He contended that he could not be convicted
of violating section 186.22, subdivision (a) because he did not “promote[], further[], or
assist[]” any felonious criminal conduct by members of the gang. (§ 186.22, subd. (a).)
The California Supreme Court agreed.
The Supreme Court found it “significant that the offense requires a defendant to
promote, further, or assist members of the gang.” (Rodriguez, supra, 55 Cal.4th at
p. 1131.) Based on the plain meaning of the plural noun “members,” the court held that
the statute “requires that felonious criminal conduct be committed by at least two gang
members, one of whom can include the defendant if he [or she] is a gang member.
[Citation.]” (Id. at p. 1132.) The court found that “[i]f the Legislature had intended to
criminalize any felonious criminal conduct committed by any active and knowing
participant, including one acting alone, the phrase „by members of that gang‟ would be
superfluous.” (Id. at p. 1133.)
The instant case is somewhat different from Rodriguez, since the jury did not
necessarily find that defendant “acted alone.” (Rodriguez, supra, 55 Cal.4th at p. 1139.)
Here, defendant was accompanied by a second person. The prosecution sought to prove
that the second person was Carmona, that Carmona was a fellow Norteño gang member,
and that Carmona aided and abetted the robbery by shutting the door upon defendant‟s
command.

10
 However, the jury rejected the prosecution‟s case regarding Carmona. Since
Carmona‟s defense was misidentification, the jury may not have believed that Carmona
was the second person present during the robbery. Alternatively, the jury may have
believed that Carmona was the second person present during the robbery, but that he did
not actually aid and abet the robbery. Either way, the prosecution failed to prove
defendant “willfully promote[d], further[ed], or assist[ed] in . . . felonious criminal
conduct by members of [the Norteño] gang.” (§ 186.22, subd. (a).)
Rodriguez establishes that in order to violate section 186.22, subdivision (a), the
requisite “felonious criminal conduct” (§ 186.22, subd. (a)) must “be committed by at
least two gang members.” (Rodriguez, supra, 55 Cal.4th at p. 1132.) Because the jury
found Carmona not guilty of the robbery, it necessarily rejected the prosecution‟s proof
that the robbery was “committed by at least two gang members.”3 (Ibid.) Thus, there
was insufficient evidence to support defendant‟s conviction of violating section 186.22,
subdivision (a). The Attorney General concedes that defendant‟s conviction on count 1
must be reversed.4 Although retrial of that count is barred (see Burks v. United States
(1978) 437 U.S. 1, 18; People v. Hatch (2000) 22 Cal.4th 260, 272), we will remand for
resentencing on the robbery count.
B. Motion to Dismiss Strikes
Prior to sentencing, defendant filed a Romero motion, requesting the trial court
dismiss one or both strike allegations. (People v. Superior Court (Romero) (1996) 13

3
Notably, by finding the allegation pursuant to section 186.22, subdivision (b) not
true, the jury also rejected the prosecution‟s proof that the robbery was “committed for
the benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.”
4
Because we are reversing defendant‟s conviction of violating section 186.22,
subdivision (a), his claim that the trial court should have stayed the sentence on that
count pursuant to section 654 is moot. Likewise, we need not address defendant‟s other
challenges to his conviction of violating section 186.22, subdivision (a).

11
Cal.4th 497.) In the motion, defendant argued that the offenses were “non-violent,”
noted that he had not used a weapon, and claimed the robbery was unplanned. He further
claimed to be remorseful, and he argued that he had good prospects for employment. At
the sentencing hearing, defendant reiterated these points and added that he had committed
the crimes due to intoxication. He pointed out that one of his prior felonies had occurred
about 15 years earlier, when he was only 21 years old.
In denying the Romero motion, the trial court noted that defendant – who was
age 36 at the time – was “fairly old for somebody who still is caught up in criminal street
gangs.” It noted that it had considered defendant‟s criminal history, background,
character, and prospects, but that defendant did not fall outside the spirit of the Three
Strikes law. (See People v. Williams (1998) 17 Cal.4th 148, 161.)
In his opening brief, defendant argued that the trial court abused its discretion by
declining to dismiss one or both of the strike allegations for sentencing purposes. In his
supplemental brief discussing the impact of Rodriguez on his conviction of violating
section 186.22, subdivision (a), defendant argued that if we reverse that conviction, we
should remand for reconsideration of his Romero motion. We agree that remand is
appropriate in this situation.
“ „[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own motion, “in
furtherance of justice” pursuant to Penal Code section 1385(a), or in reviewing such a
ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme‟s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.‟ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)

12
 Here, the trial court necessarily considered “the nature and circumstances of
[defendant‟s] present felonies” when it decided his Romero motion. (Carmony, supra, 33
Cal.4th at p. 377.) It is unclear whether the trial court would have reached a different
result if defendant had been convicted of robbery (count 2) only. In light of our reversal
of defendant‟s conviction of active participation in a street gang, we believe it is
appropriate to remand the matter to the trial court for reconsideration of the Romero
motion as to count 1.5 We express no opinion whether, without defendant‟s conviction of
violating section 186.22, subdivision (a), the circumstances of this case are so
“ „extraordinary‟ ” that defendant “ „can be deemed to fall outside the spirit‟ ” of the
Three Strikes law. (Carmony, supra, at p. 378.)
C. Custody Credits
At sentencing, the trial court awarded defendant 402 days of actual presentence
custody credit. (See § 2900.5.) It did not award him any presentence conduct credit (see
§ 4019), “[b]ased on the indeterminate sentencing.”
Defendant contends he was entitled to presentence conduct credit, and the
Attorney General agrees. “The circumstance that a defendant is sentenced to an
indeterminate sentence does not preclude the earning of presentence conduct credit.
[Citations.]” (People v. Duff (2010) 50 Cal.4th 787, 793 (Duff).) The parties also agree
that defendant was limited to accruing presentence conduct credits at a rate of “15 percent
of the actual period of confinement.” (§ 2933.1, subd. (c); see Duff, supra, at p. 794.)
We find defendant‟s contention meritorious and the Attorney General‟s
concession appropriate. We will therefore order the trial court to award defendant
presentence conduct credit.

5
If the trial court once again denies the Romero motion, defendant can appeal
from the new judgment and may argue, if appropriate, that the denial was an abuse of
discretion. (See People v. Murphy (2001) 88 Cal.App.4th 392, 394.)

13
 D. Section 1202.5 Fine and Penalty Assessments
At sentencing, the trial court imposed a fine of $66 pursuant to section 1202.5,
which provides for a $10 fine upon conviction of certain offenses, including robbery,6 but
is subject to certain mandatory penalty assessments. (See People v. Voit (2011) 200
Cal.App.4th 1353, 1374 (Voit).) Defendant contends the fine was improperly calculated
and that we should remand the matter to the trial court with instructions to correctly
calculate the fine.
Respondent contends that this claim was forfeited by defendant‟s failure to object
below. We disagree. The trial court‟s duty to articulate all fines and fees in the abstract
of judgment is intended not only to benefit the defendant, but also to assist state and local
agencies in their collection obligations. (People v. High (2004) 119 Cal.App.4th 1192,
1200 (High).) The trial court‟s duty to state and local agencies cannot be waived by the
defendant.
Respondent concedes that remand is appropriate if this claim was not forfeited,
since the statutory basis for the penalty assessments is not clear on the record nor set out
in the abstract of judgment. (See High, supra, 119 Cal.App.4th at p. 1200.)
In Voit, we noted that a $10 theft fine under section 1202.5 may be subject to the
following penalties and surcharges: “(1) a 100 percent state penalty assessment (§ 1464,
subd. (a)(1)), (2) a 20 percent state surcharge (§ 1465.7), (3) a 30 percent state courthouse
construction penalty (Gov. Code, § 70372), (4) a 70 percent additional penalty (Gov.
Code, § 76000, subd. (a)(1)), (5) a 20 percent additional penalty if authorized by the
county board of supervisors for emergency medical services (Gov. Code, § 76000.5,
subd. (a)(1)), (6) a 10 percent additional penalty „ “[F]or the purpose of implementing the

6
Section 1202.5, subdivision (a) provides in pertinent part: “In any case in which
a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470,
484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10)
in addition to any other penalty or fine imposed.”

14
DNA Fingerprint, Unsolved Crime and Innocence Protection Act” ‟ (Gov. Code,
§ 76104.6, subd. (a)(1)), and (7) a 10 percent additional state-only penalty to finance
Department of Justice forensic laboratories (Gov. Code, § 76104.7). [Citation.]” (Voit,
supra, 200 Cal.App.4th at pp. 1373-1374, fn. omitted.) Together with the base fine of
$10, the total of these amounts would be less than the $66 that the trial court imposed.
Defendant points out that the Government Code section 76104.7 penalty amount
increased after he committed his offense in 2009. At that time, the fine was “one dollar
($1) for every ten dollars ($10).”7 (Stats. 2007, ch. 302 (S.B. 425), § 8.) We agree that
defendant is not subject to any subsequent increase in that or any other penalty amount
due to the constitutional prohibition against ex post facto laws. (Voit, supra, 200
Cal.App.4th at p. 1374, see also High, supra, 119 Cal.App.4th at pp. 1197-1199 and
People v. Batman (2008) 159 Cal.App.4th 587, 591.)
Because we are reversing defendant‟s conviction of active participation in a
criminal street gang and remanding for further proceedings, the trial court will have the
opportunity to determine the appropriate penalty assessments imposed upon the
section 1202.5 fine and state the statutory basis for any assessments and surcharges
imposed. (See High, supra, 119 Cal.App.4th at p. 1200.)

DISPOSITION
The conviction on count 1 (§ 186.22, subd. (a)) is reversed. The matter is
remanded for resentencing on count 2 (§ 211). At the new sentencing hearing, the trial
court shall (1) reconsider defendant‟s Romero motion (People v. Superior Court
(Romero), supra, 13 Cal.4th 497), (2) separately list, with the statutory basis, the penalty

7
The fine has been raised incrementally and now stands at “four dollars ($4) for
every ten dollars ($10).” (Gov. Code, § 76104.7; see Stats. 2012, ch. 32 (S.B. 1006),
§ 25, eff. June 27, 2012.)

15
assessments and surcharges imposed on the section 1202.5 fine, (3) recalculate the other
fees and fines, and (4) award defendant presentence conduct credit.

___________________________________________
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________
PREMO, ACTING P.J.

__________________________
GROVER, J.

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