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The People v. Ishmael Sarafum Gilmore

April 10, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ISHMAEL SARAFUM GILMORE, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 10F4225 & 11F352)

The opinion of the court was delivered by: Mauro , J.

P. v. Gilmore

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 separate cases, defendant Ishmael Sarafum Gilmore pleaded no contest to possession of a controlled substance (methamphetamine) and receiving stolen property. The trial court sentenced defendant to an aggregate state prison term of four years eight months, but suspended execution of sentence and placed defendant on formal probation for five years under various terms and conditions, including imposition of various fines and fees. When defendant violated probation, the trial court executed the previously imposed sentence and ordered defendant to pay all outstanding fines and fees, but ordered defendant to serve the four years eight months in county jail and awarded presentence credit.

Defendant now contends (1) two DNA penalty assessments imposed pursuant to Government Code section 76104.7 must be reduced to the amounts authorized by the statute at the time the crimes were committed, and (2) he is entitled to four additional days of presentence conduct credit. The People agree with defendant's contentions, and so do we.

We will modify the judgment and affirm the judgment as modified.

BACKGROUND

In trial court case No. 10F4225, defendant pleaded no contest to possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377). Moreover, in trial court case No. 11F352, defendant pleaded no contest to receiving stolen property and admitted serving a prior prison term.

The trial court sentenced defendant to an aggregate state prison term of four years eight months, but suspended execution of sentence and placed defendant on formal probation for five years under various terms and conditions, including imposition of various fines and fees. Among the fines imposed were two DNA penalty assessments pursuant to Government Code section 76104.7: a $60 assessment imposed upon a $200 base fine, and a $15 assessment imposed upon a $50 lab analysis fee.

Defendant subsequently admitted violating the terms of his probation. The trial court revoked probation, executed the previously imposed sentence, but ordered defendant to serve four years eight months in county jail and awarded presentence credit totaling 135 days (91 actual days and 44 conduct days).

DISCUSSION

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