Filed 7/7/15 P. v. Pavon CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B253706

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381363)
         v.

ARTURO PAVON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, C.H.
Rehm, Jr., Judge. Affirmed with modifications.
         Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant Arturo Pavon.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Arturo Pavon was convicted, following a jury trial, of two counts of
continuous sexual abuse of a child in violation of Penal Code1 section 288.5, subdivision
(a), and eleven counts of committing a lewd act on a child in violation of 288, subdivision
(a). The victims of these offenses were appellant’s daughters G.V. and B.F., and B.F.’s
half-sisters A.V. and K V. The jury found true the allegations that appellant committed
the lewd acts on more than one victim within the meaning of section 667.61, subdivisions
(b) and (e). The jury also found true the allegation that the statute of limitations was
extended for the crimes against G.V. and A.V. pursuant to section 803, subdivision (f).
       The trial court sentenced appellant to consecutive upper terms of 16 years for the
two section 288.5 convictions plus four consecutive terms of 15 years to life for the
counts 7, 11, 16 and 18 section 288 convictions, pursuant to section 667.61.
       Appellant appeals from the judgment of conviction, contending that the prosecutor
committed prejudicial misconduct during the examination of five prosecution witnesses
and the cross-examination of two defense witnesses. Appellant also contends the abstract
of judgment must be corrected with respect to the fines and fees, and the matter remanded
for a determination of his ability to pay. We make a number of corrections to the fines
and fees, as reflected below in the disposition. The judgment of conviction is affirmed in
all other respects.


                                            Facts
       Appellant’s daughter G.V. was born on June 20, 1985. She lived with him from
birth until she was 17 years old. Appellant also had a daughter in Mexico with Victoria
R. This daughter, B.F., was born on June 16, 1982. Later, Victoria had two daughters
with another man. A.V. was born on December 23, 1984, and K.V. was born on
November 7, 1985. Victoria and the three girls lived in Mexico until 1993.




1
       All further statutory references are to the Penal Code unless otherwise specified.
                                              2
       In 1993, appellant brought B.F. to Los Angeles. Later in 1993, Victoria moved to
Los Angeles, bringing A.V. with her. Victoria wanted to be with appellant. In 1995,
K.V. came to Los Angeles to live with her mother, sisters, and appellant.
       Appellant was convicted of sexually abusing all four girls. The abuse began with
G.V. Appellant was convicted of continuous sexual abuse of G.V. between June 20,
1990, when she turned five, and June 19, 1995. Appellant was also convicted of four
counts of lewd acts on G.V. for the abuse which occurred between June 20, 1996 and
June 19, 1999, the day before her fourteenth birthday.
       Appellant next began sexually abusing A.V., beginning in 1993 when she was
nine years old. Appellant was convicted of continuous sexual abuse of A.V. between
April 1, 1993, and December 31, 1994. He was also convicted of one count of lewd acts
on A.V., occurring between January 1, 1995, and December 22, 1998, the day before her
fourteenth birthday.
       The abuse continued with B.F., beginning in 1995 when she was 12 years old.
Appellant was convicted of four counts of lewd acts on B.F., all occurring between
January 1, 1995, when B.F. was 12 years old, and June 15, 1996, the day before her
fourteenth birthday. Appellant also began sexually abusing K.V. in 1995, when she was
nine years old. Appellant was convicted of two counts of lewd acts on K.V., both
occurring between January 1, 1995, and November 6, 1999, the day before her fourteenth
birthday.
       Appellant had at least two other children who lived with him during the period the
sexual abuse occurred. Appellant’s son Luis was G.V.’s full brother. Luis did not testify
at trial. Appellant’s daughter Leticia F. was B.F.’s half-sister. Leticia testified at trial
and provided partial corroboration for B.F.’s sexual abuse claims.
       Appellant called two witnesses to testify in his defense. The first was Luis’s wife
Lizbeth Anzures. G.V. had testified that she tried to warn Lizbeth about appellant
because she was worried that if Lizbeth and Luis had children, appellant would molest
them. Lizbeth gave a different account of events. According to Lizbeth, she met and
lived with G.V. for about a month when Lizbeth was 11 years old and G.V. was 16. G.V.

                                               3
told Lizbeth that appellant touched her “pamper” and leg when she was three years old,
but she never described any other incidents with appellant. Lizbeth recalled that G.V.
and appellant seemed to have a good relationship.
        Appellant’s second witness was his sister, Maria Flores. She testified that G.V.
lived with her for a few months in 2003, when G.V. was pregnant. One night, G.V. told
Maria that she had been molested when she was three years old at a place she lived with
her mother. Her parents sometimes left her alone with a man who wore glasses, and he
molested her. She was angry that her parents has not protected her. G.V. never told
Maria that appellant had abused her.


                                         Discussion
        1. Prosecutorial Misconduct
        Appellant contends the prosecutor committed misconduct by asking leading
questions of prosecution witnesses G.V., B.F., A.V., K.V., and Leticia and also by asking
defense witnesses Lizbeth and Maria questions which were intended to elicit inadmissible
evidence or to encourage the jury to speculate. Appellant further contends the prosecutor
“berated” Maria. Appellant contends this misconduct violated his right to due process
and a fair trial.
        Respondent contends appellant has forfeited this claim by failing to object on the
ground of prosecutorial misconduct and failing to request an admonition. Appellant
contends that if his claim is forfeited, he received ineffective assistance of counsel.


        a. General law
        “‘“The applicable federal and state standards regarding prosecutorial misconduct
are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’”’ (People v.
Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is

                                              4
prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’”’”’ (Hill,
supra, 17 Cal.4th at 819.)” (People v. Gray (2005) 37 Cal.4th 168, 215-216.) Showing
misconduct is not sufficient; an appellant must also demonstrate that his right to a fair
trial was prejudiced by the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.) A
defendant may not complain of prosecutorial misconduct on appeal if he failed to object
to the conduct at trial or to request a curative admonition. (People v. Pearson (2013) 56
Cal.4th 393, 426.)


       b. Leading questions to prosecution witnesses
       Appellant contends that the prosecutor’s “excessive” use of leading questions to
prosecution witnesses constituted misconduct.
       “A ‘leading question’ is a question which suggests to the witness the answer that
the examining party desires.” (Evid. Code § 764.) Leading questions may be asked of
witnesses on cross-examination without restriction. (Evid. Code § 767.) Leading
questions may be asked on direct examination only under special circumstances where
the interests of justice require it. (Ibid.) They may, for example, be used on direct
examination to revive a witness’s recollection. (People v. Williams (1997) 16 Cal.4th
635, 672.)
       The use of leading questions constitutes misconduct only if there is a “showing
that such examination had the effect of deliberately producing inadmissible evidence or
called for inadmissible and prejudicial answers.” (People v. Hayes (1971) 19 Cal.App.3d
459, 470.) There is no misconduct if the leading questions produced only evidence that
could properly have been elicited by questions not objectionable in form. (Ibid.) Thus,
simply objecting that a question is leading is not sufficient to alert the trial court that
misconduct is being claimed. Accordingly, a claim of prosecutorial misconduct based on
the prosecutor’s use of leading questions is forfeited if the defendant “fail[s] to object to
the prosecutor’s question as misconduct.” (People v. Williams, supra, 16 Cal.4th at 673


                                               5
[claim of misconduct not preserved when defense counsel objected to questions as
leading, but did not object to questions as constituting misconduct].)
       Here, although appellant objected to approximately 50 questions as leading, he did
not object that the questions constituted misconduct. Accordingly, he has forfeited his
claim of prosecutorial misconduct. (People v. Williams, supra, 16 Cal.4th at 673.)
       Appellant contends that his counsel was ineffective in failing to object properly
and preserve the claim. Appellant has the burden of proving ineffective assistance of
counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim,
appellant must show that his counsel’s performance fell below an objective standard of
reasonableness, and that, but for counsel’s error, a different result would have been
reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694;
People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington, supra, 466 U.S. at 694.)
       Appellant contends the prosecutor’s use of leading questions was misconduct
because the questions were “excessive.” Appellant has not shown an excessive use of
leading questions.2 More importantly, appellant has not shown that those questions “had
the effect of deliberately producing inadmissible evidence or called for inadmissible and
prejudicial answers.” (People v. Hayes, supra,19 Cal.App.3d at 470.)



2
       Appellant identifies five prosecution witnesses of whom the prosecutor asked
leading questions. In total, the prosecutor asked these five witnesses about 2000
questions. Appellant’s trial counsel objected to about 50 of the prosecutor’s 2000
questions as leading. Sixteen of those objections were sustained. Specifically, the
prosecutor asked G.V. about 800 questions. Appellant objected to four questions as
leading, and one series of three to five questions as “all” being leading. The court
sustained three of the individual objections. Appellant objected to nine of the 600
questions the prosecutor asked A.V. Five objections were sustained. Appellant objected
to 11 of the 700 questions the prosecutor asked B.F. The court sustained four of the
objections. Appellant objected to two of the 140 questions the prosecutor asked Leticia.
The court sustained one objection. Appellant objected to six of the 240 questions the
prosecutor asked K.V. The court sustained three of the objections.
                                             6
         Since appellant has not shown that prosecutorial misconduct occurred, his counsel
acted reasonably in not objecting that the leading questions constituted misconduct.
Counsel is not required to make futile objections. (People v. Ochoa (1998) 19 Cal.4th
353, 427-428, 432 [meritless motion to exclude]; People v. Price (1991) 1 Cal.4th 324,
386-387.) Appellant’s claim of ineffective assistance fails.


         c. Questions to defense witnesses
         Appellant contends the prosecutor asked defense witnesses Lizbeth and Maria
questions which were intended to elicit inadmissible evidence or to encourage the jury to
speculate.
         “‘“It is, of course, misconduct for a prosecutor to ‘intentionally elicit inadmissible
testimony.’ [Citations.]” [Citation.] Such misconduct is exacerbated if the prosecutor
continues to attempt to elicit such evidence after defense counsel has objected.’ (People
v. Smithey (1999) 20 Cal.4th 936, 960.)” (People v. Tully (2012) 54 Cal.4th 952, 1035.)
         Appellant objected that the questions at issue called for speculative or irrelevant
evidence and were argumentative. Assuming these objections were sufficient to alert the
court to a claim of misconduct, appellant did not request any curative admonitions, and so
has forfeited his claims. (See People v. Pearson, supra, 56 Cal.4th at 426.)
         Appellant contends an admonition would have been ineffective, and so his claim
has been preserved. (See People v. Hill (1998) 17 Cal.4th 800, 820.) As we discuss
below, there was little to no prejudicial potential from the prosecutor’s questions, and so
there is no reason to believe an admonition would have been ineffective. This minimal
prejudicial potential also means that appellant’s claim of ineffective assistance of counsel
fails.


         i. Questions about absent witness
         Appellant contends that the prosecutor committed misconduct by asking Lizbeth a
series of questions involving the absence of Lizbeth’s husband, Luis from court.
Appellant’s trial counsel objected to most of these questions as calling for speculation

                                                7
and to a few as calling for irrelevant evidence. All of the objections were sustained
before the witness answered.
       The prosecutor’s questions had little to no prejudicial potential. The jury was
aware through other properly introduced evidence that appellant had a son, Luis, who
was a few years older than G.V. and who lived with appellant during some of the time
that the sexual abuse occurred. By the end of trial they were no doubt aware that Luis
had not appeared as a witness. The prosecutor’s questions at most suggested that Luis
did not want to come to court. There could be a variety of reasons for this reluctance.
The prosecutor’s questions did not suggest any improper motive. Thus, any slight
prejudicial potential from the prosecutor’s questions, could have easily been dispelled
with an admonition to the jury that the reasons for Luis’s absence were not relevant and
the jury should not speculate about those reasons.
       Since an admonition would have dispelled any prejudicial potential, appellant has
forfeited his claim by failing to seek such an admonition. (People v. Pearson, supra, 56
Cal.4th at 426.)
       Appellant contends that since his claim has been forfeited by his counsel’s failure
to seek an admonition, he received ineffective assistance of counsel. In order to establish
such a claim, appellant must show that, but for counsel’s error, a different result would
have been reasonably probable. (Strickland v. Washington, supra, 466 U.S. at 687-688,
694; People v. Ledesma, supra, 43 Cal.3d at 216-218.)
       Here, although counsel did not request a specific admonition concerning the
questions about Luis, the jury was thoroughly instructed on how to view statements and
questions by the attorneys. Before trial, the jury was instructed generally that “you must
not consider as evidence any statement by an attorney during the trial. [¶] Similarly, a
question by an attorney . . . is not evidence. A question is not evidence . . . Therefore you
must not suspect that any insinuation or mere suggestion by a question is true.” The jury
was also told, “If a question is objected to and the objection is sustained . . . [y]ou must
disregard the question and not speculate about what that answer might have been.”
Before deliberations began, the jury was again instructed that “Nothing that the attorneys

                                              8
say is evidence . . . Their questions are not evidence. . . . Do not assume something is true
because one of the attorneys asked a question that suggested that it was true.” In
addition, the court told the jury, “If I sustained an objection, you must ignore the
question. If the witness was not permitted to answer, do not guess what the answer might
have been or why I ruled as I did.”
       Thus, the jury was aware when they heard the prosecutor’s questions about Luis
that the questions were not evidence, that they should not suspect that any insinuation in a
question was true and they should not speculate about the answer to a question when an
objection was sustained. They were reminded of these rules before deliberation. These
instructions were more than sufficient to prevent any prejudice from the prosecutor’s
questions. Jurors are presumed to follow the court’s instructions. There is no reasonable
probability that appellant would have received a more favorable outcome if his counsel
had requested a specific admonition.


       ii. Delay in reporting molestation
       Appellant contends the prosecutor also committed misconduct by asking Lizbeth
two questions about her failure to tell anyone, including Luis, about a 12 year old
conversation with G.V. in which G.V. stated that appellant had molested her. The first
question the prosecutor asked was, “Isn’t it kind of weird 12 years you don’t tell
anybody?” The court sustained defense counsel’s objection that the question was
argumentative. The prosecutor then asked, “And you never told [Luis] about this
conversation that happened to [G.V.]; right?” Defense counsel did not object, and Lizbeth
answered, “I don’t think so, no.”
       Although the prosecutor’s use of “weird” in the first question was argumentative,
it did not result in an answer from the witness. The second question was proper. “There
is nothing inherently improper about cross-examining a defense witness as to his failure
to come forward at an earlier date. In fact, the information discovered during this type of
questioning may well aid the trier of fact in its effort to determine whether the testimony
is an accurate reflection of the truth or a recent fabrication.” (People v. Ratliff (1987) 189

                                              9
Cal.App.3d 696, 701.) This is so because in some situations, “a witness’s silence may be
akin to a ‘prior inconsistent statement,’ and therefore, has probative value.” (Ibid.)
       Since a prosecutor is free to comment on the evidence in opening and closing
arguments, any possible prejudicial potential in the prosecutor’s use of the word “weird”
comes from its use in a question, which could suggest that it was an evidentiary fact that
Lizbeth’s silence was weird. Any such prejudicial potential could easily have been
dispelled with a curative admonition telling the jury to disregard the prosecutor’s “weird”
comment and reminding the jury of the pre-trial instruction that “[a] question is not
evidence . . . Therefore you must not suspect that any insinuation or mere suggestion by a
question is true.”
       Since an admonition could have dispelled any potential prejudice from the
prosecutor’s use of the word “weird,” appellant has forfeited his claim by failing to seek
such an admonition. (People v. Pearson, supra, 56 Cal.4th at 426.)
       Appellant contends that since his claim has been forfeited by his counsel’s failure
to seek an admonition, he received ineffective assistance of counsel. In order to establish
such a claim, appellant must show that, but for counsel’s error, a different result would
have been reasonably probable. (Strickland v. Washington, supra, 466 U.S. at 687-688,
694; People v. Ledesma, supra, 43 Cal.3d at 216-218.)
       Here, although counsel did not request a specific admonition concerning the
“weird” question, the jury was thoroughly instructed on how to view statements and
questions by the attorneys, as is detailed above. Thus, the jury was aware when they
heard the prosecutor’s “weird” question that the question was not evidence and that they
should not suspect that any insinuation in the question was true. They were reminded of
these rules before deliberation. These instructions were more than sufficient to prevent
any prejudice from the prosecutor’s use of the word “weird” in a question. Jurors are
presumed to follow the court’s instructions. There is no reasonable probability that
appellant would have received a more favorable outcome if his counsel had requested a
specific admonition.


                                             10
       iii. Berating a witness
       Appellant contends the prosecutor also committed misconduct by “berating”
appellant’s sister Maria and asking questions that invited the jury to speculate. The
prosecutor asked her if she could remember anything else “other than what you told Mr.
Fisher about these statements that [G.V.] told you?” Defense counsel objected that the
question was vague and ambiguous, and the objection was sustained. The witness
nonetheless then said, “Like what?” The prosecutor replied, “That’s what we are trying
to figure out.” Defense counsel objected that the statement was argumentative, and the
objection was sustained. This exchange is awkward but in no way improper.
       The prosecutor next said, “Let me ask this first: if you want us to know the truth,
how come you are not answering any of these questions?” Defense counsel objected that
the question was argumentative, and the objection was sustained. Even assuming that the
question suggested that Maria was deliberately not answering questions for an improper
purpose, the record shows that Maria had in fact been attempting to answer the
prosecutor’s questions, although she appeared to misunderstand some questions. When
asked clear and specific questions, Maria provided appropriate answers. The jury was no
doubt aware of this fact. An admonition from the court reminding the jury that nothing
an attorney says is evidence, and that it was the jury’s job to decide the fact of the case
would have been sufficient to dispel any potential prejudice from the question.
       Since an admonition could have dispelled any potential prejudice from the
prosecutor’s question, appellant has forfeited his claim by failing to seek such an
admonition. (People v. Pearson, supra, 56 Cal.4th at 426.)
       Appellant contends that since his claim has been forfeited by his counsel’s failure
to seek an admonition, he received ineffective assistance of counsel. In order to establish
such a claim, appellant must show that, but for counsel’s error, a different result would
have been reasonably probable. (Strickland v. Washington, supra, 466 U.S. at 687-688,
694; People v. Ledesma, supra, 43 Cal.3d at 216-218.)
       Here, although appellant’s trial counsel did not request a specific admonition
about the argumentative question to Maria, the jury was thoroughly instructed on how to

                                             11
view statements and questions by attorneys, as is detailed above. Thus, they were aware
when they heard the question that it was not evidence and that they should not suspect
that any insinuation in the question was true. They were reminded of these rules before
deliberation. These instructions were more than sufficient to prevent any prejudice from
the prosecutor’s argumentative question. Jurors are presumed to follow the court’s
instructions. There is no reasonable probability that appellant would have received a
more favorable outcome if his counsel had requested a specific admonition.


       2. Fines and Fees
       Appellant contends (1) the abstract of judgment should be corrected to reflect the
trial court’s imposition of a $200 restitution fine and a $200 parole revocation fine; (2)
the section 290.3 fine must be reduced to the amount in effect when he committed his
offenses; (3) the section 294 child abuse fine must be stricken; (4) the Government Code
section 76104.7 DNA assessment must be stricken; and (5) the Government Code section
70373 assessment must be stricken. Respondent agrees with the first four contentions,
but does not agree the Government Code section 70373 must be stricken. Respondent is
correct.


       a. Restitution and parole revocation fines
       At the sentencing hearing, the trial court properly imposed a section 1202.4
restitution fine of $200 and a section 1202.45 parole revocation fine of $200. The minute
order for the sentencing hearing and the abstract of judgment show $280 fines. The oral
pronouncement of sentence controls. (People v. Mitchell (2001) 26 Cal.4th 181, 184-
186.) The minute order and abstract of judgment are ordered corrected. (Ibid.)


       b. Section 290.3 sex offender fine
       When appellant was sentenced, section 290.3, subdivision (a) provided for a fine
of $300 for a defendant’s first qualifying sex offense. The trial court imposed a fine in
that amount on appellant. However, appellant’s sex offenses were alleged to have

                                             12
occurred from 1990 through 1999. At that time section 290.3, subdivision (a), provided
for a $200 fine for a defendant’s first qualifying conviction. Appellant’s fine must be
reduced to the $200 amount in effect when he committed his offenses. (People v.
Valenzuela (2009) 172 Cal.App.4th 1246, 1248.)


       c. Section 294 child abuse fine
       The trial court imposed a $500 fine pursuant to section 294, subdivision (b)(1).
That section became effective on January 1, 1994. Most of appellant’s sexual abuse was
alleged to have occurred after that date. However, appellant’s sexual abuse of G.V. was
alleged to have occurred between 1990 and 1996, while his sexual abuse of A.V. was
alleged to have occurred between April 1, 1993 and December 31, 1994. While it is quite
possible the abuse occurred before 1994, the victims’ testimony was not specific as to
time, and the jury did not make any findings concerning the specific dates the abuse
occurred. Thus, it is not clear whether appellant was convicted for offenses which
occurred after the enactment of section 294. (People v. Voit (2011) 200 Cal.App.4th
1353, 1372; People v. Hiscox (2006) 136 Cal.App.4th 253, 257-261 [where offenses were
alleged to have occurred between 1992 and 1996, but testimony was not specific about
dates of abuse and jury did not make findings about dates, defendant could not be
sentenced under statute which became effective in 1994; such a sentence would violate
ex post facto prohibitions]; see People v. Saelee (1995) 35 Cal.App.4th 27, 30 [under ex
post facto principles, amount of fine is calculated as of the date of the offense].)
Accordingly, the fine must be stricken.


       d. DNA assessment
       The trial court imposed a $20 DNA assessment fee pursuant to Government Code
section 76104.7. That section became effective on July 12, 2006. (Assem. Bill No. 1806
(2005-2006 Reg. Sess.) § 18.) Ex post facto principles preclude the imposition of the
assessment. (See People v. Voit, supra, 200 Cal.App.4th at 1372.) It must be stricken.


                                              13
       e. Government Code section 70373 assessment
       The trial court imposed a $390 assessment pursuant to Government Code section
70373, which became effective on January 1, 2009. This section provides in part that “an
assessment shall be imposed on every conviction for a criminal offense.” Appellant was
convicted in this matter on December 3, 2013.
       Numerous courts have held that because the assessment is tied to a defendant’s
conviction, it is meant to apply to any conviction suffered after the January 2009
effective date of the statute, regardless of the date of the offense. (People v. Castillo
(2010) 182 Cal.App.4th 1410; see People v. Cortez (2010) 189 Cal.App.4th 1436, 1443-
1444; People v. Lopez (2010) 188 Cal.App.4th 474, 480-480; People v. Mendez (2010)
188 Cal.App.4th 47, 60-61; People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; see
also People v. Davis (2010) 185 Cal.App.4th 998, 1000.) Appellant contends those cases
are wrongly decided.
       Appellant urges that we follow the reasoning of People v. High (2004) 119
Cal.App.4th 1192, which found that the state court construction penalty imposed under
Government Code section 70372 was punitive and subject to ex post facto restrictions.
There are numerous differences between Government Code sections 70372 and 70373.
Significantly, section 70372 uses the term “penalty” to describe the money a defendant is
required to pay, thus showing a penal purpose by the legislature. Section 70373 uses the
term “assessment” for the money a defendant is required to pay and so does not indicate a
penal purpose. We find the reasoning of Castillo, which concerns section 70372, to be
persuasive.3




3
       We note that Castillo and High are both decisions of the Third District Court of
Appeal. The author of Castillo, Justice Butz, is one of the justices who had earlier
decided High. Justice Robie, another of the justices who decided High, also participated
in Castillo. Presumably, they did not believe that the reasoning in Castillo was
inconsistent with their earlier decision in High.

                                              14
                                       Disposition
       The fine imposed pursuant to section 290.3 is reduced to $30. The section 294
child abuse fine and the Government Code section 76104.7 DNA assessment are both
stricken. The clerk of the superior court is directed to prepare an amended abstract of
judgment reflecting these changes and also showing that the correct amount of the section
1202.4 restitution fine is $200 and the correct amount of the section 1202.45 parole
revocation fine is also $200. The judgment is affirmed in all other respects.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                            KIRSCHNER, J.



We concur:



       MOSK, Acting P.J.



       KRIEGLER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            15
