THE PEOPLE v. MAURICE ELLISTON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant Maurice Elliston appeals from a judgment of conviction entered after a jury found him guilty of corporal injury to a spouse/cohabitant/child's parent (Pen.Code,1 § 273.5, subd. (a)).  Defendant also admitted a prior conviction resulting in a prison term (§ 667.5, subd. (b)).  Defendant was sentenced to four years in state prison, consisting of the midterm of three years and an additional year imposed for the prior.²

On appeal, defendant contends that the trial court erred when it imposed a $400 domestic violation fee under section 1203.097.   The People agree that the fine was unauthorized.   The fine was improperly imposed and must be stricken.   In all other respects, the judgment will be affirmed.

FACTS3

On October 29, 2009, Chandra E. went to a job interview at The Grove shopping center with defendant and their one-year-old daughter.   Defendant and Chandra lived together.   During the interview, Chandra was able to see defendant with the baby and could tell he was getting irritated.   After the interview, defendant and Chandra started to argue.   Defendant insulted her;  he ran up to her, shoved her shoulder and twice said, “I'll kill you.”

Chandra went back to her car and spent about ten minutes smoking a cigarette.   She saw defendant walking with their daughter, and they resumed arguing.   She was wearing flip flops, and defendant deliberately stepped on her toes.

Chandra was angry and went to a store to call the police, but the store employees would not let her use their phone.   Eventually, she was able to use a bystander's phone to call the police.

Chandra told Officer Roberto Figueroa that, after the argument at the shopping center, defendant had pushed her, punched her once in the face, and stomped on her left foot.   Officer Figueroa observed a small red mark below her eye, and her face was a little swollen.   He believed the injuries on Chandra's face were fresh and consistent with her account.

DISCUSSION

Defendant does not challenge his conviction but only the imposition of the domestic violence fine.   Section 1203.097 provides in pertinent part as follows:  “(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․”

At the sentencing hearing, the trial court ordered defendant to pay a $400 domestic violence fine.   Defendant contends that this fine was not authorized pursuant to section 1203.097 because he was not granted probation.   Since the section only authorizes the imposition of the fine when a defendant is convicted of domestic violence and placed on probation, and defendant was sentenced to state prison, the fine was improperly imposed.   Even though defendant did not object to the fine in the trial court, the court did not have jurisdiction to impose it, and the fine's illegality is not waived.  (People v. Ponce (2009) 173 Cal.App.4th 378, 381–382.)

DISPOSITION

The $400 domestic violence fine is stricken.   In all other respects, the judgment is affirmed.⁴

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. The trial court also found defendant had violated probation in two separate cases, and sentences in those cases were ordered to run concurrently with the sentence imposed in the instant case.   The two probation violation cases are not part of this appeal..  FN2. The trial court also found defendant had violated probation in two separate cases, and sentences in those cases were ordered to run concurrently with the sentence imposed in the instant case.   The two probation violation cases are not part of this appeal.

FN3. Since the only issue defendant raised on appeal relates to a fine imposed, we will only include a brief statement of the facts..  FN3. Since the only issue defendant raised on appeal relates to a fine imposed, we will only include a brief statement of the facts.

FN4. The abstract of judgment does not reflect the imposition of the fine, and the abstract does not need to be amended..  FN4. The abstract of judgment does not reflect the imposition of the fine, and the abstract does not need to be amended.

WOODS, Acting P. J. ZELON, J.