IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 27, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MAURICE HILL, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Modified and affirmed with directions. (Super.Ct.Nos. SWF024476 & SWF025562)
The opinion of the court was delivered by: McKinster J.
P. v. Hill CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On January 10, 2008, in case No. SWF024476, a complaint charged defendant and appellant Maurice Hill with willfully and unlawfully entering three separate buildings with the intent to commit theft, a felony under Penal Code section 459 (counts 1-3); willfully and unlawfully stealing and taking the personal property of another under Penal Code section 484 (count 4); and willfully and unlawfully receiving credits cards which had been obtained by theft under Penal Code section 496 (count 5).
On June 9, 2008, in case No. SWF025562, another complaint charged defendant with willfully and unlawfully entering a building with intent to commit theft, a felony, under Penal Code section 459.
On June 24, 2008, defendant pled guilty to count 1 in case No. SWF024476, and to count 1 in case No. SWF025562. In exchange for the guilty plea, defendant was to receive a term of 16 months for each offense, with sentences to run concurrent. Defendant was to return for sentencing on September 24, 2008.
On April 16, 2010, after failing to appear for sentencing in 2008, the trial court sentenced defendant to the low term of 16 months on count 1 in case No. SWF024476, and to the low term of 16 months on count 1 in case No. SWF025562, violations of Penal Code section 459, with the terms to run concurrent. The court also imposed a restitution fine of $200 under Penal Code section 1202.4; a parole revocation fine of $200, stayed pending completion of parole, under Penal Code section 1202.45; a $30 court security fee per count under Penal Code section 1465.8, subdivision (a)(1); a $30 Government Code section 70373 assessment per count; and a $110 booking fee per case under Government Code section 29550. The court dismissed the other counts.
On May 25, 2010, defendant filed a timely notice of appeal.
II STATEMENT OF FACTS
On November 16, 2007, defendant entered a Target store in Hemet with the intent to commit theft. On December 3, 2007, defendant entered three different Target stores--two in Moreno Valley and one in Riverside--with the intent to commit theft.
Defendant's sole contention on appeal is that the assessments made
under Government Code section 70373 must be vacated because the date
of his convictions was prior to the effective date of the statute.*fn1
The People, in a letter brief, state that defendant's
"claim regarding the Government Code section 70373 assessments is
correct and respondent concedes the claim." We agree with both
parties and order that the assessments be stricken.
Government Code section 70373, subdivision (a), requires imposing a $30 assessment for each felony conviction. This section became effective on January 1, 2009. (Stats. 2008, ch. 311, § 6.5, eff. Jan. 1, 2009; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3-4.) In this case, defendant committed the offenses in 2007, and entered his guilty plea on June 24, 2008. Because the date of defendant's "conviction" is the date on which he entered his guilty plea in 2008, the assessments cannot be applied to this case. (People v. Davis (2010) 185 Cal.App.4th 998, 1001-1002; People v. Lopez (2010) 188 Cal.App.4th 474, 479 [Fourth Dist., Div. Two].)
Therefore, because defendant's date of conviction predated the effective date of Government Code section 70373, the orders imposing the assessments must be stricken.
The judgments are modified to strike the $30 assessments under Government Code section 70373, subdivision (a). The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: Hollenhorst Acting P.J. King J.