Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR914716
RIVERA, J.
Defendant Cesario Angelo Jacobo, Jr., appeals a judgment entered upon his plea of no contest to inflicting corporal injury on his spouse. (Pen. Code, § 273.5, subd. (a).) His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to file a supplemental brief, but he has not done so.
All undesignated statutory references are to the Penal Code.
Defendant was charged by information with one felony count of inflicting corporal injury on his spouse. (§ 273.5, subd. (a).) The information included an allegation that defendant had been convicted of violating the same statute within the prior seven years. (Id., subd. (e)(1).) He initially pled not guilty. Before trial, however, he changed his plea to no contest pursuant to a plea agreement under which the prior conviction allegation would be dismissed. Before defendant entered his plea, the trial court stated that it would be inclined to suspend defendant’s sentence and grant probation, and that it would look favorably on a motion to withdraw the plea if the probation report suggested that a prison term would be appropriate.
The probation report indicated that defendant and his wife got into a fight on January 26, 2008. During the fight, defendant forced his wife’s head into a wall, punched her kidney area, hit her, and strangled her.
An officer’s report of the incident provided the factual basis for defendant’s plea. The report is not included in the record on appeal. We have relied instead on the probation report, which includes a summary of the investigation done by the sheriff deputy who responded to a report of domestic violence on the date in question, and a statement by the victim.
The probation report recommended that probation be denied. At the sentencing hearing, against the advice of counsel, defendant told the court he wished to be sentenced to prison rather than receiving probation. The court sentenced defendant to the mid-term of three years (§ 273.5, subd. (a)), and imposed a domestic violence fee of $400 (§ 1203.097), a restitution fine of $600 (§ 1202.4, subd. (b)), and a court security fee of $20 (§ 1465.8).
Section 1203.097, subdivision (a) provides in pertinent part: “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. . . .” Here, defendant was not granted probation, but was instead sentenced to prison. We asked the Attorney General to submit a letter brief explaining his position as to whether such a fee was authorized for a defendant who was not granted probation. The Attorney General has conceded that in the circumstances, no fee could lawfully be imposed pursuant to section 1203.097. We agree, and shall order the fine stricken.
The error may be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.)
Defendant was represented by counsel throughout the proceedings. He was informed of his constitutional rights and the consequences of his plea. Aside from the propriety of the domestic violence fee, there are no meritorious issues to be agued.
DISPOSITION
The $400 fee imposed pursuant to section 1203.097 is ordered stricken. The trial court is directed to prepare an amended abstract of judgment reflecting this change and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respect, the judgment is affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.