Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF168842. Gary L. Paden, Judge.
John F. Schuck, 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, Janis Shank McLean and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
OPINION
INTRODUCTION
Appellant Stephen Durant Weaver challenges the imposition of a medical examination fee pursuant to Penal Code section 1203.1h. We will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Weaver was charged with forcible rape and false imprisonment. In addition, it was alleged that Weaver had suffered two prior strike convictions, a prior serious felony conviction, and had served two prior prison terms. A plea agreement was reached whereby Weaver pled no contest to one count of misdemeanor sexual battery and one count of false imprisonment by violence, and admitted one prior prison term allegation. The parties agreed to an indicated sentence of two years in state prison.
The trial court sentenced Weaver in conformity with the plea agreement. In addition, the trial court imposed various fines and fees, including an $800 fee pursuant to section 1203.1h, subdivision (b) to pay for the medical examination of the victim conducted by the local sexual response team.
DISCUSSION
Weaver contends the trial court was unaware that the section 1203.1h fee is discretionary and that remand is necessary for the trial court to exercise its discretion. The record clearly discloses that the trial court was aware of and exercised its discretion.
At the sentencing hearing, Weaver objected to the $800 fee being imposed pursuant to section 1203.1h. The trial court inquired of the prosecutor whether the fee could be waived, and the prosecutor responded incorrectly that it could not. Shortly thereafter, the prosecutor corrected her erroneous comment and informed the trial court that the fee “is something the court can strike, although we are requesting that the court not do so. It is discretionary basically.” Subsequent to this comment, the trial court pronounced sentence and imposed the section 1203.1h fee.
This record clearly establishes that the trial court was aware of its discretion and chose not to waive the fee in Weaver’s case. (See People v. Meloney (2003) 30 Cal.4th 1145, 1165.) Under these circumstances, remand is not required.
DISPOSITION
The judgment is affirmed.