California Government Code Section 76104.6 - Interpretation
In People v. Batman (2008) 159 Cal.App.4th 587, the court held that Government Code section 76104.6, which established a DNA Fingerprint penalty that is nearly identical to the DNA Identification Fund penalty of Government Code section 76104.7, violated ex post facto provisions. (Batman, at p. 591.)
Former Government Code section 76104.6 stated in relevant part:
"For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($ 10), or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."
The court explained that "the statute denominates the assessment a penalty: it applies to every criminal fine, penalty, and forfeiture; it is assessed in proportion to the defendant's criminal culpability; and it is to be collected and processed under the same statute Penal Code section 1424 that authorizes the state penalty assessment.
In addition, the assessment will be used primarily for law enforcement purposes." (Batman, at p. 590.)
In our view, Government Code sections 76104.6 and 76104.7 should be treated in the same manner for ex post facto purposes, because the two penalty provisions are virtually identical.