Filed 4/4/18 P. v. Harreld 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN ROBERT HARRELD,

Defendant and Appellant.
C085098

(Super. Ct. No. CRF13264)



Defendant John Robert Harreld pleaded no contest to willful infliction of a corporal injury (Pen. Code, § 273.5, subd. (a)) and was placed on formal probation with various terms and conditions. After admitting a violation of probation, the court reinstated defendant on probation with modified terms. Following a bench trial for a second violation of probation, the court found defendant violated the terms of his probation and sentenced him to the upper term of four years in state prison.
Appointed counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we conclude that the $400 domestic violence fee imposed under section 1203.097 should have been $500 under the version of the statute then in effect. We shall modify the judgment accordingly, and affirm.
I. BACKGROUND
In May 2013, defendant punched his girlfriend in the face, chipping her tooth, during an argument about his alcohol consumption. Later, during a police interview, defendant punched a glass panel door in the interview room breaking the window. Defendant was charged with inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) and vandalism (§ 594, subd. (b)(1)).
In September 2013, defendant pleaded no contest to the corporal injury charge and the vandalism charge was dismissed with a Harvey waiver. The court placed defendant on formal probation requiring, among other things, that defendant serve 270 days in jail and complete a 52-week domestic violence batterer’s treatment program.
A petition to revoke probation was filed in February 2015 alleging that defendant failed to obey all laws. The petition to revoke probation included the following allegations: On May 16, 2014, defendant violated section 594, subdivision (b)(1) by maliciously defacing another’s personal property in excess of $400 (count 1), and violated section 22210 by possessing or manufacturing a prohibited weapon (count 2), and on October 16, 2014, defendant violated Vehicle Code section 14601.2, subdivision (a) by driving a motor vehicle while driving privileges were suspended or revoked (count 3). In June 2015, defendant waived a contested hearing and admitted a violation of probation as alleged in count 1. The court reinstated defendant on probation with modified terms, including that he serve 338 days in jail with 248 days of credit for time served.
A second petition to revoke probation was filed in May 2016. The petition alleged defendant failed to enroll and successfully complete the batterer’s treatment program (count 1), report to his probation officer as directed (count 2), and notify the probation department of any change of address (count 3). Defendant denied the allegations.
During a bench trial, Probation Officer Jerry Schicht testified that he told defendant to enroll in a batterer’s treatment program and report to the probation department by April 10, 2016. Defendant did not enroll in the program and did not report to the probation department. Although Schicht left a message on defendant’s voicemail requesting that he report to him, defendant never reported. Schicht also went to defendant’s address, but defendant no longer lived at the residence.
Defendant testified that he did not attend the treatment program because an attendee had previously threatened to kill him. Defendant also claimed he did not know he was on formal probation because a police officer told him he was not on probation.
After hearing the witness testimony, the trial court found defendant violated the terms of his probation. The court denied reinstatement on probation and sentenced defendant to the upper term of four years on the corporal injury conviction, granted 424 days of custody credit, and imposed the following financial obligations: a $280 restitution fine (§ 1202.4, subd. (b) [eff. Jan. 1, 2013, to Dec. 31, 2015]), an identical $280 parole revocation restitution fine, suspended unless was parole revoked (§ 1202.45) a $280 probation revocation restitution fine (§ 1202.44), victim restitution of $305 to the City of Marysville and $5,375 to Jasbir and Ranjit D.—the victims of the February 2015 violation of probation petition—(§ 1202.4, subd. (f)), a $250 domestic violence prevention fee (§ 1463.27), a $400 domestic violence fee (§ 1203.097), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). Defendant timely appealed.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we received no further communication from defendant.
Following an examination of the entire record, we conclude that the court erred in imposing a $400 domestic violence fee pursuant to section 1203.097. The amount imposed should have been $500.
Defendant assaulted the victim in May 2013, pleaded no contest to the corporal injury offense in September 2013, and was sentenced to formal probation in November 2013. The version of section 1203.097 then in effect provided: “(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 five hundred dollars ($500) to be disbursed as specified in this paragraph. If, after a hearing in open court, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee. If the court exercises its discretion to reduce or waive the fee, it shall state the reason on the record.” (Former § 1203.097, eff. Jan. 1, 2013 to Dec. 31, 2013, as amended by Stats. 2012, Ch. 511, § 1.) The court, then, should have imposed a $500 domestic violence fee pursuant to the version of section 1203.097 in effect at the time.
It appears, however, that the court mistakenly imposed the amount required under the prior version of section 1203.097, which was in effect from August 13, 2010, to December 31, 2012. (See former § 1203.097, subd. (a)(5), eff. Aug. 13, 2010, to Dec. 31, 2012, Stats. 2010, ch. 132, § 1.) That version mandated a $400 payment. (Ibid.)
Furthermore, nothing in the record shows the court reduced the $500 mandatory amount to $400 after finding defendant was unable to pay. (Former § 1203.097, subd. (a)(5)(A), as amended by Stats. 2012, Ch. 511, § 1.) The proper domestic violence fee is therefore $500.
III. DISPOSITION
The domestic violence fee imposed pursuant to section 1203.097 is $500. The trial court is directed to prepare an amended abstract of judgment that reflects the $500 domestic violence fee, and is ordered to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment as modified is affirmed.


/S/

RENNER, J.



We concur:


/S/

BLEASE, Acting P. J.


/S/

MAURO, J.