Opinion
C052011
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WAYNE HILLIGAS, Defendant and Appellant.
In Nevada County Superior Court case No. SF05133, defendant Robert Wayne Hilligas pleaded guilty to committing corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and permitting a dependent elder (the spouse) to suffer unjustifiable pain and suffering (§ 368, subd. (b)(1)) in exchange for dismissal of one count of dissuading a witness (§ 136.1, subd. (b)) and one count of contempt of court (§ 166, subd. (a)(4)).
Undesignated statutory references are to the Penal Code.
In Nevada County Superior Court case No. SF05308, defendant pleaded guilty to one count of making criminal threats (§ 422), and admitted a prior serious felony conviction allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The trial court sentenced him to state prison for an aggregate term of nine years four months and ordered him to pay (among other fines and fees) a $200 domestic violence fund fee pursuant to section 1203.097, subdivision (a).
Defendants sole contention on appeal is that imposition of the $200 fine was error because section 1203.097, subdivision (a) applies only to defendants who receive probation. The People properly concede error.
DISCUSSION
Section 1203.097 states in pertinent part: "(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] . . . [¶] (5) A minimum payment by the defendant of four hundred dollars ($400) to be disbursed as specified in this paragraph. If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee." (Italics added.)
Here, defendant was not granted probation; he was sentenced to state prison. Thus, no fine pursuant to section 1203.097, subdivision (a) could lawfully be imposed in this case, and the error may be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.)
Of course, had he been granted probation, defendant could have been assessed $400, not $200. Effective January 1, 2007, section 1203.097, subdivision (a)(5) will provide for a fine of $200. (Stats. 2003, ch. 431, § 2.)
DISPOSITION
The judgment is modified by striking the $200 fee imposed pursuant to section 1203.097. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
BLEASE, Acting P. J.
RAYE, J.