P. v. Flores-Castro
Filed 5/30/07 P. v. Flores-Castro CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, Plaintiff and Respondent, v. EDY ALBERTO FLORES-CASTRO, Defendant and Appellant. | C053539 (Super. Ct. No. TF033505A) |
After defendant Edy Alberto Flores-Castro admitted he struck and bit his live-in girlfriend, he pled guilty to inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a))[1]and was sentenced to prison. After sentencing, an abstract of judgment was prepared that included the imposition of a $400 domestic violence fee pursuant to section 1203.097, subdivision (a).
Defendants sole contention on appeal is that imposition of the $400 fine was error because section 1203.097, subdivision (a) applies only to defendants who receive probation. The People properly concede error.
We agree. 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 two hundred dollars ($200) 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.
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.)
Defendant also notes that although the court did not impose the domestic violence fine at sentencing, it appeared thereafter in the abstract of judgment. The fine also appears in the clerks minutes. Even were the fine one that could have been lawfully imposed, a court clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Although, in light of our determination that the fine was improper and the clerks error was immaterial, we nonetheless emphasize what should not need repeating: that the clerks minutes must accurately reflect what occurred at the hearing. (See id. at p. 388.)
DISPOSITION
The judgment is modified by striking the $400 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.
RAYE , J.
We concur:
SCOTLAND, P.J.
NICHOLSON , J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
