People v. Kirvin

Filed 12/4/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B246329

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054851)
v.

CHARLES KIRVIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard, Judge. Affirmed as modified.

Caroline R. Hahn, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, James William Bilderback II and Brendan Sullivan, Deputy Attorneys General,
for Plaintiff and Respondent.

******
 Does a trial court abuse its discretion in denying a criminal defendant the right to
represent himself when he has repeatedly refused to come to court and be interviewed by
a court-appointed mental health expert? Is a defendant who makes six separate telephone
calls urging a relative to persuade the prosecution’s chief witness not to testify at trial
entitled, under People v. Bailey (1961) 55 Cal.2d 514, to dismissal of all but one of his
six convictions for attempting to dissuade a witness? The answer to both questions is no,
and we affirm Defendant Charles Kirvin’s convictions and, with one small correction, the
26-year prison sentence imposed in this case.
FACTS AND PROCEDURAL HISTORY
I. Offense Conduct
Al Jesse Cambell (Cambell) was driving Defendant Charles Kirvin (Defendant)
and others from Palmdale to Inglewood, California. Defendant and Cambell were dating.
Upset with how Cambell was eating candy, Defendant punched her in the right eye so
hard it bled. Defendant told Cambell he would hurt her family if she told anyone who hit
her; he subsequently drove her to a nearby police station and hospital where she reported
that she was hit by a stranger trying to rob her.
A few days later, Defendant grabbed Cambell’s arm gruffly after she rebuffed his
sexual advances; her arm bruised. When the police arrived, they noticed Cambell’s still
swollen eye and she told them the truth about the prior incident. Defendant was arrested.
Defendant thereafter made several calls from jail urging his sister and others to get
Cambell “not to come to court.” Six of these calls were made to Defendant’s sister on
the same day.
II. Procedural History
The People charged Defendant with corporal injury to a cohabitant (Pen. Code,
§ 273.5, subd. (a)),1 assault by means likely to produce great bodily injury (§ 245, subd.
(a)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) for Defendant’s
actions in the car; with corporal injury to a cohabitant (§ 273.5, subd. (a)) for grabbing

1
All further statutory references are to the Penal Code unless otherwise indicated.

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Cambell’s arm a few days later; and with 11 counts of attempting to dissuade a witness
(§ 136.1, subd. (b)(2)) for the calls from jail. The People also alleged Defendant’s 2002
prior conviction for battery involving serious bodily injury as a “strike” (§ 1170.12,
subds. (a) through (d); § 667, subds. (b) through (i)), and as a prior “serious felony”
(§ 667, subd. (a)(1)); the People further alleged three prior prison sentences (§ 667.5,
subd. (b)).
Prior to trial, Defendant expressed dissatisfaction with his appointed counsel and
the trial court held a hearing with Defendant and his lawyer, pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden). At that hearing, Defendant complained that his
attorney was not moving the case forward fast enough, and was too willing to “waive
time.” Defendant also stated that he was seeing “mental images” “in his head” of his
lawyer “flip[ping] [him] off.” The trial court found no basis to appoint new counsel, but
declared a doubt about Defendant’s competence, suspended the criminal proceedings
under section 1368, and appointed two mental health experts to examine Defendant.
After examining Defendant, each expert reported that Defendant had first “hear[d]
voices” 18 years earlier, had since been on and off various medications, and had never
been hospitalized for any mental issues. Both experts further opined that Defendant
understood the charges against him, the role of the court officers, and what was at stake.
They differed in their opinion of whether Defendant could assist his counsel: Dr.
Stephen Wilson thought Defendant could not, while Dr. Kory Knapke thought he could.
The court appointed a third expert to evaluate Defendant, but Defendant refused to meet
with him on two separate occasions. The third expert informed the court that he could
not render a “direct opinion” without interviewing Defendant, but remarked that the
“available information”--namely, the documents available to the expert as well as
Defendant’s custodial placement outside the psychiatric unit--indicated that Defendant
had not overcome the presumption of competency.
After the parties submitted the issue of competency on the reports, the court ruled
that Defendant had not rebutted the statutory presumption of competency. The court
cited the absence of any “indication at all that [Defendant] is suffering from any type of

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mental illness”; the fact that Defendant was not being housed in the mental health unit of
the jail; and the concurrence of the two examining experts that “Defendant has a rational,
factual understanding of the charges and the nature and purposes of the proceedings.” In
accord with Dr. Knapke’s opinion, the court concluded that Defendant was “able to
comprehend his own status and condition in reference to such proceedings and . . . is able
to assist counsel in conducting his defense.”
At that point, Defendant renewed his earlier request to represent himself, which
the trial court had initially postponed until Defendant’s competency was determined. The
court denied Defendant’s request on two grounds. First, the court pointed to Defendant’s
refusal to leave his cell that morning, and his earlier refusal to meet with the third mental
health expert. As the court saw it, Defendant was “playing games,” and Defendant’s
“actions in refusing to come to court and cooperate with doctors appointed by the court
are disruptive, obstreperous, disobedient and disrespectful to the court, and his
misconduct and its impact . . . affect the integrity of the trial court.” Second, the court,
citing Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), noted Defendant, while
competent to stand trial, lacked the competency to represent himself.
Defendant immediately exercised a peremptory challenge against the judge under
Code of Civil Procedure section 170.6, and a new judge was assigned. Defendant again
moved to disqualify his appointed counsel and to represent himself. The court conducted
a second Marsden hearing, and found no basis upon which to appoint new counsel. The
court also denied Defendant’s request to represent himself due to (1) Defendant’s
repeated refusals to come to court and meet with the court-appointed expert; and (2) his
misconduct in jail (namely, throwing urine and feces). The court found the sum total of
Defendant’s behavior to be “disruptive to the fundamental operations of the judicial
system.”
The case proceeded to trial. The trial court dismissed one of the witness
dissuasion counts for insufficient evidence and, in lieu of dismissing the two corporal
injury against a cohabitant counts (due to lack of evidence of cohabitation), permitted the
People to substitute two counts of misdemeanor battery in a dating relationship (§ 243,

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subd. (e)(1)). The jury acquitted Defendant of one other witness dissuasion count, but
convicted Defendant of the remaining counts. Defendant admitted his prior convictions,
and the Court imposed a prison sentence of 26 years, as well as a $200 domestic violence
restitution fine under section 1203.097.
DISCUSSION
I. Competency
A criminal defendant may not be tried or convicted while mentally incompetent.
(People v. Sattiewhite (2014) 59 Cal.4th 446, 464; Pate v. Robinson (1966) 383 U.S. 375,
384-386.) For these purposes, a defendant is mentally incompetent if he (1) “‘“lacks a
‘“sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding”’”’”; or (2) lacks “‘“‘“a rational as well as a factual understanding of the
proceedings against him.”’”’” (Sattiewhite, supra, 59 Cal.4th at p. 464, quoting Dusky v.
United States (1960) 362 U.S. 402, 402.) Whenever substantial evidence raises a
reasonable doubt regarding the defendant’s competence, a court is required to suspend
the criminal proceedings and conduct a full competency trial. (§ 1368, subds. (a), (b);
People v. Lightsey (2012) 54 Cal.4th 668, 691.) At that trial, the defendant is rebuttably
presumed to be competent. (§ 1369, subd. (f).) The defendant consequently bears the
burden of proving his incompetency by a preponderance of the evidence. (People v.
Blacksher (2011) 52 Cal.4th 769, 797 (Blacksher).) We review a trial court’s
determination of competency for substantial evidence, viewing the evidence in the light
most favorable to that determination. (Id. at p. 798; People v. Poe (1999) 74 Cal.App.4th
826, 831 (Poe).)
Defendant contends that the trial court’s competency determination is not
supported by substantial evidence because (1) Dr. Wilson found him unable to assist in
his own defense; and (2) the trial court should not have relied upon (a) the opinion of the
third expert who never interviewed him; or (b) the jail officials’ decision not to place him
in a mental health unit.
As a threshold matter, we reject the People’s argument that Defendant, by
“submitting” the matter to the trial court on the basis of the experts’ reports, thereby

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forfeited his right to challenge that ruling on appeal. To be sure, defendants may not
attack the validity of expert reports to which they submit with arguments they did not
present to the trial court. (Blacksher, supra, 52 Cal.4th at pp. 797-798; People v. Weaver
(2001) 26 Cal.4th 876, 904.) But Defendant objected to several aspects of the third
expert’s report, and may renew those objections on appeal.
We nevertheless conclude that Defendant’s contentions lack merit. Dr. Wilson’s
opinion is not controlling. Dr. Knapke found Defendant to be competent, and a single
witness may establish any fact. (Evid. Code, § 411; People v. Rasmuson (2006) 145
Cal.App.4th 1487, 1508.) It is “not the role of this court to redetermine the credibility of
experts or to reweigh the relative strength of their conclusions.” (Poe, supra, 74
Cal.App.4th at p. 831.) There is also no reason to do so, given that both experts agreed
that Defendant understood what was going on and what was at stake.
The trial court also did not commit any error vis-à-vis the third expert.
Importantly, the court did not cite or otherwise purport to rely on that expert’s opinion.
But even if it had, courts may lawfully use a third expert as a “tie breaker” (Blacksher,
supra, 52 Cal.4th at p. 798), and may rely upon a report not based on a face-to-face
interview when the subject refuses to meet with the expert (People v. Johnson (2012) 53
Cal.4th 519, 533 (Johnson)). The trial court’s observation that jail officials did not view
Defendant as needing special accommodation due to mental health issues is also not
cause for reversal. Dr. Knapke’s report and the court’s own observations of Defendant
provided ample basis for the court to find that Defendant had not rebutted the
presumption of competency; the court’s reliance on additional information--even if
extraneous--does not undermine the otherwise substantial evidence.
II. Self-representation
A criminal defendant has the constitutional right to forego the constitutional
guarantee of the assistance of counsel and to represent himself at trial. (Faretta v.
California (1975) 422 U.S. 806, 817-818 (Faretta). This right is “‘not absolute.’”
(People v. Butler (2009) 47 Cal.4th 814, 825 (Butler), quoting Edwards, supra, 554 U.S.
at p. 171.) The right to self-representation may be abridged when a defendant engages in

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“misconduct that seriously threatens the core integrity of the trial”; if the rule were
otherwise, the right to self-representation could be perverted into a “‘license not to
comply with relevant rules of procedural and substantive law.’” (People v. Carson
(2005) 35 Cal.4th 1, 8 (Carson), quoting Faretta, supra, 422 U.S. at p. 834, fn. 46.) The
right to self-representation may also be denied when a defendant possessing the
competency to stand trial nevertheless lacks the competency “to conduct the basic tasks
needed to present [one’s] own defense without the help of counsel.” (Johnson, supra, 53
Cal.4th at p. 530; Edwards, supra, 554 U.S. at pp. 175-176).)
The first judge who denied Defendant’s request to proceed without counsel relied
upon Defendant’s misconduct and lack of competency; the second judge relied solely
upon Defendant’s misconduct. Defendant attacks the second judge’s ruling as an abuse
of discretion because the judge (1) relied in part upon Defendant’s jail misconduct;
(2) never spelled out how Defendant’s repeated refusal to come out of his cell threatened
the integrity of the trial; and (3) never warned Defendant to cease his behavior before
denying his request. We review the second judge’s ruling for an abuse of discretion
(People v. Welch (1999) 20 Cal.4th 701, 735), and accord “due deference” to the trial
court’s assessment of the impact of the Defendant’s misconduct on the integrity of the
trial (Carson, supra, 35 Cal.4th at p. 12; see also People v. Sarpas (2014) 225
Cal.App.4th 1539, 1552 [abuse of discretion asks whether the court exceeds the “‘bounds
of reason’”]). That discretion was not abused.
A defendant’s in-court misconduct can warrant the denial or revocation of a
defendant’s right to represent himself. (Faretta, supra, 422 U.S. at p. 834, fn. 46; Illinois
v. Allen (1970) 397 U.S. 337, 343-344 (Allen); Carson, supra, 35 Cal.4th at p. 8.) So can
a defendant’s out-of-court misconduct, as long as there is a nexus between that
misconduct and the trial process. (Carson, supra, 35 Cal.4th at p. 7.) What matters is
“the effect, not the location, of the misconduct and its impact on the core integrity of the
trial.” (Id. at p. 9.) A defendant’s out-of-court efforts to intimidate witnesses may
consequently justify the denial of self-representation (id. at p. 10), but abuse of the
privileges accorded to self-represented litigants or misconduct while incarcerated

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ordinarily do not (Butler, supra, 47 Cal.4th at pp. 826-827 [disciplinary infractions in jail;
insufficient]; Carson, supra, 35 Cal.4th at p. 7 [abuse of pro. per. privileges; insufficient];
People v. Doss (2014) 230 Cal.App.4th 46, 55-57 [same]).
Defendant is accordingly correct that his repeated episodes of showering jail
officials with his excrement are not, without more, a proper ground for denying his
request for self-representation. But this was not the only basis for the second judge’s
ruling, and we must evaluate whether the court abused its discretion in denying self-
representation on the remaining basis--namely, Defendant’s willful absences from court
and other court-ordered interviews. (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn.
12 [“‘[W]e review the ruling, not the court’s reasoning, and, if the ruling was correct on
any ground, we affirm.’”].)
The court did not act beyond the “bounds of reason” in concluding that
Defendant’s repeated refusals to come to court or obey court orders to meet with others
would seriously threaten the core integrity of the trial. An in-custody defendant who
wishes to represent himself but demonstrates a pattern of refusing to come to court or to
leave his cell when ordered puts the trial court on the horns of a dilemma: That court
must either (1) halt the court proceedings whenever the defendant decides to remain in
his cell (thereby inconveniencing the jurors and witnesses, and playing havoc with the
court’s busy calendar), or (2) face the unpleasant prospect of proceeding with trial in the
absence of the defendant or anyone representing him (in derogation of the strong
statutory and constitutional preference that criminal defendants be present during a trial
in which their liberty is on the line). (Allen, supra, 397 U.S. at p. 342 [noting Sixth
Amendment right to be present at trial]; §§ 977, subd. (b)(1), 1043, subd. (a); see also
People v. Williams (2013) 58 Cal.4th 197, 255 [self-represented defendants have no right
to standby counsel].) If, as our Supreme Court has noted, a defendant’s refusal to sit in
the appropriate place in the courtroom is a basis for denying the right to self-
representation (Carson, supra, 35 Cal.4th at pp. 10-11), the defendant’s total absence
from the courtroom surely is.

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 Defendant protests that the trial court did not specifically articulate why his
repeated refusals to come to court would interfere with his trial, but the court explicitly
noted its concern that Defendant’s conduct would cause interference; there are no magic
words that must always be said, particularly when they would do no more than state the
obvious. Nor was there any need for the court to give warnings or to consider alternative
remedies in this case. Defendant’s refusals were, by their nature, willful and repeated.
The second denial of his request for self-representation followed a first, so Defendant was
sufficiently forewarned. Further, the trial court had no alternatives to consider; tellingly,
Defendant offers none on appeal.
In sum, the trial court did not abuse its discretion in denying Defendant’s request
to represent himself.
III. Consolidation of Convictions
A criminal defendant cannot be punished more than once for the same criminal act
or for a series of criminal acts committed “incident to one objective.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19; § 654.) However, as a general matter, a criminal
defendant can suffer multiple convictions for a single criminal act or series of related
criminal acts. (§ 954 [“The prosecution is not required to elect between . . . different
offenses or counts set forth in the accusatory pleading, [and] the defendant may be
convicted of any number of the offenses charged.”]; accord, People v. Gonzalez, __
Cal.4th __, 2014 Cal. LEXIS 9618, 2 [“Section 954 . . . concerns the propriety of
multiple convictions, not multiple punishments, which are governed by section 654.”]; In
re Arthur V. (2008) 166 Cal.App.4th 61, 67 (Arthur V.) [noting distinction between
multiple punishments and multiple convictions].)
Our Supreme Court created an exception to the general rule allowing for multiple
convictions in People v. Bailey, supra, 55 Cal.2d 514 (Bailey). Bailey held that the
People could charge a defendant’s ongoing receipt of welfare benefits arising from a
single fraudulent application as a single grand theft rather than as discrete, separate petty
thefts because the thefts were all committed “pursuant to one intention, one general
impulse, and one plan.” (Id. at p. 519.) Subsequent decisions have construed Bailey as

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being a two-sided coin, granting criminal defendants the right to insist upon the dismissal
of all but one conviction when multiple crimes are unified by a single intent, impulse or
plan. (E.g., People v. Tabb (2009) 170 Cal.App.4th 1142, 1149-1150 (Tabb).)
The courts have since struggled with the contours of this “converse Bailey”
doctrine. The decisions applying this doctrine have cited a variety of rationales, but its
applicability ultimately turns on the nature of the underlying crimes at issue. These
crimes--and the rule governing them--fall into two categories.
The first category pertains to crimes that treat harm or damage as one of their
elements, and which permit the prosecution to aggregate that harm or damage. The most
common crimes falling into this category are theft and vandalism. Until recently, the
“converse Bailey” doctrine applied with full force to this category of offenses, and
entitled a defendant to dismissal of all but one conviction for multiple crimes, even if
each involved a complete criminal act, as long as the crimes were committed “pursuant to
a single general impulse, intention or plan.” (Tabb, supra, 170 Cal.App.4th at p. 1150;
see also People v. Brooks (1985) 166 Cal.App.3d 24, 30-32 [theft]; People v. Kronemyer
(1987) 189 Cal.App.3d 314, 363-364 [same]; Arthur V., supra, 166 Cal.App.4th at
pp. 68-69 [vandalism]; cf. People v. Carrasco (2012) 209 Cal.App.4th 715, 717, 719-721
[vandalism]; People v. Jaska (2011) 194 Cal.App.4th 971, 980, 984 [same].) This is no
longer the case. In People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), our Supreme
Court jettisoned much of this earlier precedent by holding that a defendant could sustain
multiple convictions “based on separate and distinct acts of theft, even if committed
pursuant to a single overarching scheme.” (Id. at pp. 740-741.) Indeed, Whitmer marked
such an abrupt departure from the current law that the court held it was not to be applied
retroactively. (Id. at pp. 741-742.)
The second category includes all of the other crimes that do not monetize and
aggregate harm or damage. By and large, the “converse Bailey” doctrine has not been
applied to this category of offenses; as a result, a defendant may be convicted of multiple
crimes--even if the crimes are part of the same impulse, intention or plan--as long as each
conviction reflects a completed criminal act. This is the rule that has been applied to

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convictions for insurance fraud (People v. Zanoletti (2009) 173 Cal.App.4th 547, 559-
560); Medi-Cal fraud (People v. Drake (1996) 42 Cal.App.4th 592, 597); forgery (People
v. Neder (1971) 16 Cal.App.3d 846, 852; People v. Richardson (1978) 83 Cal.App.3d
853, 866); burglary (People v. Washington (1996) 50 Cal.App.4th 568, 575-578
(Washington); People v. Church (1989) 215 Cal.App.3d 1151, 1159); sex crimes (People
v. Harrison (1989) 48 Cal.3d 321, 329-332); corporal injury on a spouse (People v.
Johnson (2007) 150 Cal.App.4th 1467, 1477); and identity theft (People v. Mitchell
(2008) 164 Cal.App.4th 442, 455-457). For a brief time, a handful of California courts
prohibited multiple convictions for a series of related criminal acts unless they were
separated by an interlude in which the defendant had a “‘reasonable opportunity to reflect
upon his conduct’” (In re William S. (1989) 208 Cal.App.3d 313, 317), but our Supreme
Court ultimately rejected that view (People v. Harrison (1989) 48 Cal.3d 321, 332;
Washington, supra, 50 Cal.App.4th at pp. 575-576; cf. People v. Louie (2012) 203
Cal.App.4th 388, 399 [time to reflect is still part of multiple punishment analysis under
§ 654]).
The California courts have, at times, offered reasons for confining the “converse
Bailey” to harm-focused crimes. Expanding the doctrine further would exacerbate two of
its undesirable side effects: The doctrine effectively grants wrongdoers a “felony
discount” by assuring them only one conviction for a potentially limitless number of
related offenses (e.g., In re Arthur V., supra, 166 Cal.App.4th at p. 67), and it effectively
displaces the legislative definitions of what constitutes a completed crime with a new
constellation of judicially created “continuous crimes” that come into being should all
related burglaries, sex crimes or identity thefts be aggregated into a single “continuous
crime” (Washington, supra, 50 Cal.App.4th at p. 578). Further, a chief benefit of the
“converse Bailey” doctrine--making sure defendants who engage in conduct that
technically constitutes two crimes but practically constitutes one (such as two
immediately successive entries into the same home being treated as separate burglaries)--
can be just as effectively achieved by the already existing rule prohibiting double

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punishment, and without all of the attendant disadvantages of prohibiting multiple
convictions.
The crime of attempted dissuasion of a witness falls squarely into the second
category because it is not a crime for which harm is monetized or aggregated. To the
contrary, that crime is completed once the defendant takes an immediate step toward
having another person knowingly and maliciously attempt to persuade a witness from
assisting in a prosecution. (People v. Velazquez (2011) 201 Cal.App.4th 219, 230;
§ 136.1, subd. (b)(2)). A separate violation of section 136.1, subdivision (b)(2) was
completed each time Defendant placed a call to his sister urging her to persuade Cambell
not to go to court. As a result, whether each of Defendant’s calls was directed toward the
same goal is irrelevant.
Defendant argues that People v. Salvato (1991) 234 Cal.App.3d 872 dictates a
different result. We disagree. The question in Salvato was whether a defendant charged
with attempting to dissuade a witness over a period of time was entitled to have the
People specify (or “elect”) which specific acts the People intended to prove at trial. (Id.
at pp. 878-883.) Salvato held that no specification was required because the crime of
attempting to dissuade a witness fit within one of the exceptions to the rule mandating
election--namely, the exception for offenses contemplating a continuous course of
conduct over time. (Id. at pp. 882-883.) But the question here is whether the People--
having charged specific acts on specific dates (rather than over a time period)--are
effectively required to allege only one continuous crime of attempted dissuasion. This is
a different question than the one presented in Salvato. Salvato dealt with whether the
People may allege violations of section 136.1 as a continuous crime, while this case deals
with whether the People must do so. More to the point, reading Salvato as Defendant
suggests would effectively engraft the “converse Bailey” doctrine onto the second
category of crimes discussed above. This is an outcome Salvato nowhere mentions, and
one considerably at odds with the weight of case authority and the latest pronouncement
from our Supreme Court in Whitmer narrowing the “converse Bailey” doctrine.

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 The trial court did not err in allowing all of Defendant’s six convictions for
dissuading a witness on the same day to stand.
IV. Restitution Fine
Defendant lastly argues that the trial court should not have imposed the then $200
domestic violence restitution fine because he was sentenced to prison and the fine is to be
imposed only when a defendant is “granted probation.” (§ 1203.097, subd. (a)(5)(A).)
The People agree with Defendant on this point, and so do we.
CONCLUSION
The abstract of judgment shall be modified to delete the $200 domestic violence
restitution fine. Otherwise, the judgment is affirmed.
CERTIFIED FOR PUBLICATION.

_______________________, J.
HOFFSTADT
We concur:

____________________________, P. J.
BOREN

____________________________, J.
ASHMANN-GERST

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