Filed 4/30/15 P. v. Underwood 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040312
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1079816)

         v.

CARLUS ANTHONY UNDERWOOD,

         Defendant and Appellant.


         Defendant Carlus Anthony Underwood pleaded no contest to four counts of
second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and three counts of felony
false imprisonment (§§ 236, 237) arising out of his active participation in the armed
robbery of a marijuana collective. After the trial court denied his Romero2 motion, he
was sentenced to a total term of 36 years to life and ordered to pay various fines and fees.
         On appeal, Underwood contends the trial court abused its discretion in denying his
Romero motion and should have stricken at least two of his strike priors. Underwood
also argues that the penalty assessments imposed in connection with one of his fines,
specifically the fine imposed pursuant to section 1202.5, subdivision (a), were improperly
calculated and must be reduced.




         1
             Further unspecified statutory references are to the Penal Code.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
       We disagree that there was any abuse of discretion in denying the Romero motion.
However, as the People have conceded, the penalty assessments were miscalculated and
must be modified.
       As so modified, we will affirm the judgment.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       In May 2010, Underwood drove from Yuma, Arizona, to San Jose, California,
along with three others, Angel Torres, Mauro Sierra and Robert Singleton. They traveled
in Singleton’s silver Honda and planned on buying a car from Torres’ father in San Jose.
       During the drive, Torres suggested they rob a cannabis club in San Jose and, after
discussing the matter further, the men agreed to do so. Torres indicated he did not want
to use firearms in the robbery but Underwood said they should.
       Underwood and his companions arrived in San Jose on May 18, 2010. Although
their initial plan was to rob the cannabis club on the day they arrived, they decided to
postpone the robbery. Torres’ father traded a blue Honda to them in exchange for
Singleton’s silver Honda plus some cash. Torres’ brother-in-law was visiting and
overheard Underwood planning the robbery with Torres, Sierra and Singleton.
       Torres borrowed a shotgun from a friend. The barrel was sawed off and there
were bullet shells taped to the side of the shotgun. It was wrapped in a sheet or a towel.
Torres and Singleton went to the cannabis club in order to determine its location as well
as the layout of the building. They also purchased pepper spray, a pellet gun and duffel
bags to use in the robbery.
       On May 20, 2010, Torres arranged to borrow his cousin’s black Nissan Altima.
They met in a parking lot and Torres arrived in a blue Honda, along with Underwood,
Sierra and Singleton. Torres’ cousin gave him the keys to her car and arranged to meet
him later that day.




                                             2
       Singleton drove to the cannabis club in the borrowed Nissan. When they arrived,
Underwood, Singleton and Sierra walked toward the building. Underwood carried the
pellet gun, while Singleton carried the shotgun. Torres remained behind as the lookout.
       Sierra rang the doorbell around 12:30 p.m. At the time, there were nine people
inside the business: three employees, a doctor, a doctor’s assistant and four customers.
Gordon Seifert was working security at the club that day, and as part of his duties, he
would answer the door and confirm that customers had marijuana recommendations
before allowing them inside.
       Seifert looked through the peephole when Sierra rang the doorbell and saw
Underwood and two other men standing outside. He opened the door and Underwood
began asking him some “really strange questions,” including directions to another office
and what business was conducted at Seifert’s facility. Seifert said he did not know what
other office Underwood was asking about and said “well, we have a medical marijuana
facility here.”
       Underwood pulled a gun out of his waistband, stuck it in Seifert’s stomach and
told him to “get the fuck on the floor.” Seifert backed up a few steps and kneeled down.
Underwood followed him and put the gun to Seifert’s head, telling him to get down on
the floor. Seifert just looked at Underwood, “because I wasn’t about to let him shoot me
in the back of the head.”
       Underwood went over to the door that led into the lobby. He opened it slightly
and looked inside, seeing that there were other people in the next room. Underwood
closed the door again then kicked it open “like a tough guy.” The door split and swung
open. Meanwhile, two other men entered the front door and Seifert saw they were
carrying guns as well. One of those men pointed his gun at Seifert’s head and told him to
lie down, but Seifert did not comply. All three men walked past him and entered the
interior lobby.



                                             3
       Amber Kamber, Aaron McCall and Troy Moss were inside the lobby. After
Underwood kicked the door open, Sierra walked in carrying the sawed-off shotgun with
shells taped to the handle and a razor blade taped to the end of the barrel. He told
Kamber, McCall and Moss to “get the fuck on the ground or I’ll start killing people.”
Sierra pointed the shotgun at their heads and announced “You guys are fucked now. You
are selling shit in my hood.”
       Dr. Kevin Noonan was in the office with customer Steven Pajuelo when
Underwood and the others entered. Sierra grabbed Dr. Noonan, pulled him across the
desk and into the lobby where he threw him to the floor. Sierra then grabbed Pajuelo and
threw him to the floor of the lobby as well. One of the men punched and kicked Dr.
Noonan in the back of the head.
       One of the three went back and got Seifert, throwing him into the lobby with the
other victims. Someone again pointed a gun to Seifert’s head and told him to “lay [sic]
down all the way and put your head down.” Seifert saw five or six other patients, along
with all of his employees, lying on the floor of the lobby.
       The men yelled at everyone to stay on the floor but give them their wallets and
jewelry. One of the men walked up to each person lying on the ground, put a gun to their
head and said “give me your wallet, give me whatever you have, give me your watch.”
The victims all complied. McCall gave them his personal identification, driver’s license,
social security card and $600. Dr. Noonan gave them his wallet, which contained
approximately $500.
       The men then started asking where the safe was. Andrew Spector, who had been
working behind the lobby desk, told them there was no safe, but Sierra called him a liar.
Sierra said he knew there was a safe and he would kill Spector if he did not tell them
where the safe was. Spector repeatedly denied that there was a safe on the premises.
       Underwood and Singleton went to the back dispensary where the marijuana was
stored. They gave a black duffel bag to Sean Lockwood, who was working in the

                                             4
dispensary and told him to fill it with the jars of marijuana. After Lockwood filled the
bag as ordered, he lay down on the floor. In all, the men made off with seven to eight
pounds of marijuana, with a street value of $50,000.
       Underwood grabbed a cash register and began to carry it toward the front door,
where he placed it on the ground. He put his hands in his coat pockets and tried to open
the door, apparently to avoid leaving fingerprints. Underwood was unable to do so, and
Singleton told him to leave the register where it was. Underwood did so. When someone
outside yelled and honked a horn, Underwood and the others ran out and drove off
quickly.
       Torres arranged to meet his cousin to return her car, but when she arrived, Torres
was driving a blue Honda. He told her he would get her Nissan back to her soon. They
picked up his cousin’s daughter and drove south on Highway 101. They exited in
Morgan Hill and drove to a gas station where she saw her car, along with the three men
Torres was with earlier that day. Torres parked next to her car and the men transferred a
black bag out of the trunk of the Nissan into the Honda’s trunk. Torres’ cousin got out of
the Honda and, at some point, noticed one of the men carrying a gun wrapped in a white
shirt. When she got back into her own car, she noticed it smelled like marijuana.
       Underwood and the other men got back into the blue Honda and drove back to
Arizona. They discarded the pellet gun somewhere along Interstate 5 and eventually split
the marijuana four ways.
       In the course of investigating the robbery, police obtained the license number of
the Nissan, which led them to Torres’ cousin. Upon searching the Nissan, police found a
sawed-off shotgun with shells taped to the handle, wrapped in a white shirt.
       Underwood was charged by information with six counts of second degree robbery
(§§ 211, 212.5, subd. (c), counts 1-6) and three counts of felony false imprisonment (§§
236, 237, counts 7-9). The information further alleged that Underwood was armed with a
firearm during the commission of each of the offenses (§ 12022, subd. (a)(1)), had two

                                             5
prior serious felony convictions (§ 667, subd. (a)), three prior strike convictions (§§ 667,
subds. (b)-(i), 1170.12) and two prison priors (§ 667.5, subd. (b)). The information was
subsequently amended, dropping two of the robbery charges and renumbering the
remaining counts.
       Prior to jury selection, the prosecutor notified the court and defense counsel that
he had recently discovered that fingerprint evidence taken from the cash register had not
been examined. When those fingerprints were analyzed, one of the prints was found to
match Underwood’s. After defense counsel objected, the trial court found disclosure of
the evidence had not been intentionally delayed and refused to exclude it. Defense
counsel was given a brief extension of the trial date to discuss the matter with
Underwood and consult experts, but after a brief recess, Underwood instead opted to
plead no contest to all charges and admit all of the enhancements, strikes and prior
convictions. The prosecution dismissed Underwood’s two prison priors because they
were washed out under section 667.5, subdivision (b).
       At his September 27, 2013 sentencing, the trial court denied Underwood’s Romero
motion and sentenced him to a term of 25 years to life on count 1 (second degree
robbery) plus 10 years for his two prior serious felony convictions and one year for the
arming enhancement, for a total term of 36 years to life. The trial court also imposed
identical, but concurrent, 36 years to life sentences on the remaining three robbery
charges (counts 2-4), plus three additional concurrent 25 years to life, plus one year for
the arming enhancement, on each of the false imprisonment charges (counts 5-7).
Underwood was further ordered to pay restitution along with various other fees and fines
including a “$10 fine plus penalty assessment pursuant to [section] 1202.5.” The minute
order and abstract of judgment reflect the amount of the penalty assessment associated
with this particular fine to be $31.
       After obtaining a certificate of probable cause, Underwood timely appealed.



                                              6
II.    DISCUSSION
       A.     Denial of Romero motion
       Underwood argues the trial court abused its discretion in denying his Romero
motion because the prior strike offenses were remote in time and, even though he
engaged in criminal activity during the interim period, he had remained free of criminal
activity long enough to wash out his prison priors. Also, two of the strikes were
committed during a single incident in which Underwood stole a Christmas tree, and the
other strike offense was committed within two months of that theft. Underwood served a
single prison term for all of those offenses. His non-strike criminal activity was limited
to nonviolent misdemeanors including two drug-related convictions.
              1.     Background
       As part of his plea agreement, Underwood admitted having suffered three strike
prior convictions: attempted robbery (§§ 211, 664) and dissuading a witness by force or
threat (§ 136.1, subd. (c)(1)), both on December 5, 1990; and robbery (§ 211), on
February 2, 1991. In the 1990 incident, Underwood stole a Christmas tree from a market,
and then punched and threatened the security guard who apprehended him. In the 1991
incident, Underwood, his brother and another accomplice went on an “assault spree” at a
shopping mall in San Diego County. They attacked six different people without
provocation. Underwood’s brother punched one of the victims so hard, the victim lost
consciousness. Underwood “jumped on another victim’s back, struck him in the head,
and ripped a necklace from his neck.” When apprehended, Underwood and the others
said words to the effect of “Don’t fu[ck] with the Crips.”
       In the probation report, the probation officer stated he “was unable to identify
[any] factors in mitigation.” In addition to his seven current felonies, Underwood’s
criminal record included four felony and 13 misdemeanor convictions, many of which
were violent. He had violated parole twice and escaped from prison once. Less than a



                                             7
year before committing the present offenses, he was convicted of two counts of domestic
violence, sentenced to six months in jail, and placed on three years of probation.
       In his Romero motion, Underwood asked the court to dismiss his prior strikes
because: (1) they were remote in time, having occurred more than 20 years ago; (2) he
was not charged with or convicted of any serious or violent felonies during that
intervening period; (3) two of the strike offenses arose out of a single incident of theft,
whereas the third was committed within a couple of months of that; and (4) he is 41 years
old, has a strong relationship with his family and is willing to participate in rehabilitative
programs.
       The trial court denied Underwood’s motion, stating: “[T]he Court has . . .
reviewed this case many times because this case has been before this Court previously. I
have had an opportunity to take into consideration the factors that the Court must look to
in terms of guidance in determining whether or not this case falls outside the scope of the
three-strikes legislation. [¶] In examining Mr. Underwood’s present felonies and the prior
felonies, and the background and character and his prospects, based on the seriousness of
the offenses and based on Mr. Underwood’s lengthy criminal history, the Court does not
find that this case falls outside of the three-strikes law, so the request to strike the prior is
denied at this time.”
               2.       Standard of review
       Under section 1385, subdivision (a), a judge “may, either of his or her own motion
or upon the application of the prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.” Romero held that “a trial court may strike or vacate an allegation
or finding under the Three Strikes law that a defendant has previously been convicted of
a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to .
. . section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158
(Williams).) When a trial court considers a motion under Romero, it “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious

                                                8
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the [spirit of the three strikes law]
scheme[] . . . 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.” (Id. at p. 161.)
       A defendant has the right to seek review of a trial court’s decision not to strike a
prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) The trial
court’s decision is reviewed under the abuse of discretion standard, and the burden on
defendant is to show that the court’s decision was “ ‘ “irrational or arbitrary.” ’ ” (Ibid.)
In reviewing a ruling on a Romero motion, the court “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.” (Williams, supra, 17 Cal.4th at p. 161.) “[A]n appellant who
seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary.
It is not enough to show that reasonable people might disagree about whether to strike
one or more of his prior convictions. Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in conformity with the spirit
of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently
in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
       The Three Strikes law “establishes a sentencing requirement to be applied in every
case where the defendant has at least one qualifying strike” unless the trial court deems
the defendant falls outside the three strikes scheme. (People v. Strong (2001) 87
Cal.App.4th 328, 337.) Only under “extraordinary” circumstances can a trial court find a
defendant “fall[s] outside the spirit of the very scheme within which he squarely falls
once he commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack.” (Id. at p. 338.)

                                              9
       It is true that a trial court errs if it fails to appreciate the scope of its discretion and
therefore fails to exercise it. (Carmony, supra, 33 Cal.4th at p. 378.) However,
reviewing courts will not infer sentencing error if the record does not affirmatively show
it. (Ibid.) In this context--where a defendant seeks to establish the negative proposition
that the trial court did not consider what it was required to consider--a defendant can
rarely meet the burden to affirmatively demonstrate error because the trial court is not
required to state reasons for declining to strike a strike prior. (People v. Gillispie (1997)
60 Cal.App.4th 429, 433.) In other words, where the Legislature establishes a sentencing
norm and requires the trial court to explicitly justify a departure therefrom, all that is
required on the appellate record is a showing that the trial court was aware of its
discretion to select an alternative disposition. (Id. at p. 434.)
              3.      Analysis
       Here, the record shows that the trial court was aware of its sentencing options.
Underwood filed a written motion, the People responded, and the parties argued their
positions. Moreover, the trial court was well aware that Underwood faced a lengthy
sentence, and had a period in his life when he committed no serious and violent felonies.
The trial court was unquestionably aware of its discretion under Romero, namely to
balance the nature and circumstances of Underwood’s present felonies, his prior
convictions, as well as his background, character, and prospects to determine whether
Underwood could be deemed outside the spirit of the Three Strikes law.
       In this case, the trial court properly exercised its discretion in declining to dismiss
any of Underwood’s prior strikes. The nature of Underwood’s prior and current offenses
did not warrant a finding that he was outside “the spirit of the Three Strikes law.”
(Williams, supra, 17 Cal.4th at pp. 162-163.) Underwood pleaded no contest to all of the
charged offenses and admitted that he was armed with a firearm during their commission.
When planning the robbery, Underwood was the one who insisted that the group be
armed, and he was the first one to hold a gun to a victim’s head when he forced his way

                                                10
inside the marijuana dispensary. During the crime, Underwood and his accomplices
repeatedly held guns to their victims’ heads at close range, forcing them to the ground,
before taking their property.
       His strike offenses, though committed more than 20 years prior, were also violent,
unprovoked and involved theft. In the interim, Underwood has not led a blame-free life;
rather he accumulated a number of misdemeanor convictions for a variety of offenses,
some drug-related, but others involved domestic violence, and even resisting arrest.
Thus, a large amount of Underwood’s adult life following his strike convictions has been
spent incarcerated, on parole, on probation or under community supervision. As in
Williams, supra, 17 Cal.4th at page 163, in the years following his strike convictions
Underwood “did not refrain from criminal activity . . . and he did not add maturity to age.
Quite the contrary. In those years, he was often in prison or jail; when he was not, he
violated parole and . . . probation.” (See People v. Philpot (2004) 122 Cal.App.4th 893,
906-907 [court properly concluded that defendant, as a “flagrant recidivist,” was not
outside the spirit of the Three Strikes law, based on defendant’s 20-year history of
criminal activity, his underlying drug addiction, and the prior and current offense as
indicative of his poor prospects].)
       The trial court noted that it considered “the factors that the Court must look to in
terms of guidance in determining whether or not this case falls outside the scope of the
three-strikes legislation, . . . [including] Underwood’s present felonies and the prior
felonies, and the background and character and his prospects.” The trial court concluded,
“based on the seriousness of the offenses and based on . . . Underwood’s lengthy criminal
history, the Court does not find that this case falls outside of the three-strikes law.”
       Because we can find no failure to exercise the court’s sentencing discretion; no “ ‘
“arbitrary, capricious, or patently absurd” ” ” (Carmony, supra, 33 Cal.4th at p. 378)
exercise of that discretion; and no “extraordinary circumstances” compelling a dismissal
of Underwood’s strikes under section 1385, the court’s determination of the Romero

                                              11
motion was not “so irrational or arbitrary that no reasonable person could agree with it.”
(Carmony, supra, at p. 377.)
       B.     Penalty assessments
       At sentencing, the trial court ordered Underwood to pay a “$10 fine plus penalty
assessments pursuant to [section] 1202.5 of the Penal Code.” A penalty assessment of
$31 was subsequently entered on the September 27, 2013 minute order as well as the
abstract of judgment.
       Underwood argues the $31 penalty assessment was erroneously calculated under
amended versions of the statutes in effect at the time of his sentencing, rather than the
versions in effect at the time of his offenses. The prior versions of the statute imposed
lesser penalties and thus calculating the penalty assessments under the amended statutes
is a prohibited ex post facto punishment. The People concede this error and we agree the
concession is appropriate.
       A defendant convicted of robbery (§ 211) must pay a $10 fine in addition to any
other penalty or fine assessment. (§ 1202.5, subd. (a).) In People v. Voit (2011) 200
Cal.App.4th 1353 (Voit), we identified seven assessments, surcharges, and penalties
attendant to an underlying fine, as follows: “(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 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).” (Id. at pp.
1373-1374, fn. omitted; see People v. Sharret (2011) 191 Cal.App.4th 859, 863-864.)



                                             12
       Courts must impose the penalty assessments in effect at the time of a defendant’s
crime in order to avoid unconstitutional ex post facto expansion of punishment. (Voit,
supra, 200 Cal.App.4th at p. 1375.) An ex post facto penalty is an unauthorized sentence
that can be raised for the first time on appeal. (See In re Sheena K. (2007) 40 Cal.4th
875, 886; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1249.)
       Here, it appears that the court arrived at $31 by adding: (1) $10 (100 percent of
$10, pursuant to § 1464, subd. (a)(l)); (2) $2 (20 percent of $10, pursuant to § 1465.7);
(3) $5 (50 percent of $10, pursuant to Gov. Code, § 70372); (4) $7 (70 percent of $10,
pursuant to id., § 76000, subd. (a)(l)); (5) $2 (20 percent of $10, pursuant to id., §
76000.5, subd. (a)(1)); (6) $1 (10 percent of $10, pursuant to id., § 76104.6, subd. (a)(1));
and (7) $4 (40 percent of $10, pursuant to id., § 76104.7).
       However, two of the above statutes imposed lesser penalties on May 20, 2010, the
date on which Underwood committed the robbery. The state-only penalty to finance
Department of Justice forensic laboratories (Gov. Code, § 76104.7) was increased from
10 percent to 30 percent effective June 10, 2010 (Stats. 2009-2010, 8th Ex. Sess., ch. 3, §
1), and again to 40 percent effective June 27, 2012 (Stats. 2012, ch. 32, § 25). Thus,
Underwood was subject to a 10 percent, not a 40 percent, assessment under that statute.
       In addition, the state courthouse construction penalty was incorrectly calculated.
On May 20, 2010, Government Code section 70372 provided: “Except as otherwise
provided in subdivision (b) of Section 70375,” the state court construction penalty was 50
percent (former Gov. Code, § 70372, subd. (a)(1); Stats. 2009-2010, 2nd Ex. Sess., ch.
10, § 5, eff. May 21, 2009; Stats. 2010, ch. 720, § 16, eff. Oct. 19, 2010), but that
percentage was subject to reduction by a county “as provided in subdivision (b) of
Section 70375.” (Former Gov. Code, § 70372, subd. (a)(2); Stats. 2009-2010, 2nd Ex.
Sess., ch. 10, § 5; Stats. 2010, ch. 720, § 16, eff. Oct. 19, 2010.)
       In People v. McCoy (2007) 156 Cal.App.4th 1246 (McCoy), the court explained
that for a period of time Government Code section 70375, subdivision (b) authorized two

                                              13
potential reductions in the 50 percent state court construction penalty, one in the amount
collected for deposit into a local courthouse construction fund pursuant to Government
Code section 76100, and the other in the amount collected for the “Transitional State
Court Facilities Construction Fund” to the extent it is funded by the local courthouse
construction fund. (McCoy, supra, at pp. 1252-1253; Stats. 2002, ch. 1082, § 4; Stats.
2003, ch. 592, § 18.) By reference to a chart included in Government Code section
76000, subdivision (e) that reflected the amounts various counties were collecting for
local courthouse construction, McCoy concluded that Los Angeles County had, by virtue
of its local courthouse collections, effectively reduced the 50 percent maximum to a 30
percent penalty assessment for state courthouse construction. (McCoy, supra, at p. 1254.)
       Following the reasoning of McCoy, we note that the versions of Government Code
section 76000, subdivision (e) applicable on May 20, 2010, when Underwood committed
his crimes, reflect that Santa Clara County was collecting $1.50 from the $7 penalty in
Government Code section 76000 for local courthouse construction. (Current and former
Gov. Code, § 76000; Stats. 2008, ch. 218 § 5.) In other words, the state court
construction fee of $5 per $10 fine was reduced to $3.50, or 35 percent, at that time.
       Following People v. High (2004) 119 Cal.App.4th 1192, which held that punitive
fund raising measures cannot be applied retroactively (id. at pp. 1197-1199), we apply the
statutes in effect at the time of Underwood’s crimes in order to avoid an ex post facto
expansion of his punishment. According to our calculation, the total amount of penalty
assessments that can be appended to Underwood’s $10 fine is $26.50, consisting of a 100
percent penalty ($10) under section 1464, subdivision (a), a 20 percent penalty ($2) under
section 1465.7, a 35 percent penalty ($3.50) under Government Code section 70372, a 70
percent penalty ($7) under Government Code section 76000, subdivision (a)(1), a 20
percent penalty ($2) under Government Code section 76000.5, subdivision (a)(1), a 10
percent penalty ($1) under Government Code section 76104.6, subdivision (a)(1), and a



                                            14
10 percent penalty ($1) under former Government Code section 76104.7. We will
modify the judgment accordingly.
III.   DISPOSITION
       The judgment is modified to impose a $10 fine, plus penalty assessments of
$26.50, under Penal Code section 1202.5, subdivision (a). As so modified, the judgment
is affirmed. The clerk of the court is directed to prepare an amended abstract of judgment
and forward a certified copy of the same to the Department of Corrections and
Rehabilitation.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
