Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 10CM7054 Donna L. Tarter, Judge.
Rudolph Kraft III, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J., and Detjen, J.
STATEMENT OF THE CASE
On March 19, 2010, appellant, Randall Laws, was charged in an information with felony spousal abuse (Pen. Code, § 273.5, subd. (a), count one) and a felony count of making criminal threats (§ 422, count two). On April 23, 2010, Laws waived his constitutional rights and admitted count one. In exchange for the change in plea, the People dismissed count two. On May 25, 2010, the court sentenced Laws to prison for two years. The court granted applicable custody credits. The court ordered Laws to pay various fines and fees including a fine of $400 pursuant to section 1203.097.
Unless otherwise designated, all statutory references are to the Penal Code.
Pursuant to section 4019 as amended on January 25, 2010, and in effect when Laws was sentenced, Laws received one-for-one custody credits for actual time in custody and for local conduct credits of 97 and 96 days respectively. Laws did not receive conduct credit for the day he was sentenced to state prison.
Section 1203.097 provides in relevant part that:
Laws contends the trial court erred in fining him pursuant to section 1203.097 because this fine only applies to defendants placed on probation, not to those sentenced to prison. Respondent concedes the error.
Because the only issue on appeal concerns the imposition of a probation fee, we do not recount the underlying facts of the offense.
PROBATION FEE
Laws contends, and respondent concedes, that the trial court’s imposition of a domestic violence fee for one placed on probation pursuant to section 1203.097 does not apply because subdivision (a) of this section expressly states that this section applies to persons “placed on probation.” Appellant was sentenced to state prison, not placed on probation. The fee was inappropriately applied to this case and must be stricken.
Laws further argues that the trial court erred in failing to make a finding concerning his ability to pay the probation fee. Because Laws is not legally subject to this fee, it is resolved on the first point and we do not reach this contention.
CORRECTION OF NAME ON ABSTRACT
Upon review of the record, this court discovered that appellant’s name is misspelled as “Randy” in the minutes of the May 25, 2010, sentencing hearing and the abstract of judgment filed on May 26, 2010. This is obviously a clerical error. The appellate court possesses jurisdiction to order the trial court to prepare a new abstract accurately reflecting the sentence that was orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court’s imposition of a domestic violence fee pursuant to section 1203.097 is stricken. The trial court shall prepare an amended abstract of judgment reflecting this change and correcting the name of the defendant to “Randall Laws.” The trial court is ordered to transmit a certified copy of the corrected abstract of judgment to the appropriate authorities and to the parties. The judgment is otherwise affirmed.
“(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.”