Filed 8/31/16 P. v. Zaragoza CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B269160
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA422074)
v.
ARTIE ZARAGOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa B.
Lench, Judge. Affirmed as modified.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Artie Zaragoza (defendant) appeals from an order
imposing a domestic violence fee, made during sentencing. Defendant’s sole contention
on appeal is that the fee was unauthorized.1 We agree and strike the fee, but otherwise
affirm the judgment.
BACKGROUND
Under a negotiated plea agreement, defendant pled no contest on October 16,
2015, to one count of assault with a semiautomatic firearm in violation of section 245,
subdivision (b), and two counts of false imprisonment of a hostage in violation of section
210.5. Defendant admitted that he personally used a firearm when he committed the
assault, as alleged pursuant to section 12022.5, subdivisions (a) and (b), and that he had
suffered a prior violent or serious felony conviction within the meaning of the “Three
Strikes” law, as alleged pursuant to section 1170.12. Defendant also admitted that he
served a prison term for the offense as alleged pursuant to section 667, subdivision (a).
The trial court sentenced defendant to the agreed upon prison term of 30 years 4 months.
The court calculated presentence custody credit as a total of 684 days, and imposed
mandatory fines and fees in addition to a $500 domestic violence fund fee.
1 Defendant’s notice of appeal was filed two weeks before the effective date of
Penal Code section 1237.2, which now provides: “An appeal may not be taken by the
defendant from a judgment of conviction on the ground of an error in the imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant
first presents the claim in the trial court at the time of sentencing, or if the error is not
discovered until after sentencing, the defendant first makes a motion for correction in the
trial court, which may be made informally in writing. The trial court retains jurisdiction
after a notice of appeal has been filed to correct any error in the imposition or calculation
of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for
correction. This section only applies in cases where the erroneous imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on
appeal.”
All further statutory references are to the Penal Code, unless otherwise indicated.
2
Defendant filed a timely notice of appeal, challenging only the domestic violence
fund fee.2
DISCUSSION
Defendant correctly asserts that the trial court erroneously imposed a $500
domestic violence fee, as the express language of the statute authorizes the fee only when
a defendant is “granted probation.” (§ 1203.097, subd. (a) & (a)(5)(A).)3 Because
defendant was sentenced to prison, the fee was unauthorized, and the appropriate remedy
is for this court to strike the fee. (See People v. Kirvin (2014) 231 Cal.App.4th 1507,
1520.) Respondent agrees.
DISPOSITION
The $500 domestic violence fee is stricken. The judgment is affirmed in all other
respects. The superior court is directed to prepare an amended abstract of judgment and
to forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
2 As this appeal does not concern the proceedings prior to the entry of defendant’s
no contest plea, we do not summarize them.
3 Section 1203.097 provides in relevant 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) A minimum
payment by the defendant of a fee of five hundred dollars ($500) . . . .”
3