Filed 4/30/14 P.v . Blount CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
MARLON J. BLOUNT,
Defendant and Appellant. B244982
(Los Angeles County Super. Ct. No. MA053263)

APPEAL from a judgment of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge. Affirmed with directions. Alan Siraco, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Roberta L. Davis and Timothy M. Weiner, Deputy Attorneys Genera l, for Plaintiff and Respondent.

___________________ ________________2 During a domestic dispute Marlon J. Blo unt prevented his fiancée from calling the police by pulling the phone out of the wall and strangling her. He pleaded no contest to a reduced charge of non-forcible witness di ssuasion (Pen. Code, § 136.1, subd. (b)(1)) 1 in
return for dismissal of other counts. The trial court senten ced him to six years in state prison, issued a 10-year protective order (§ 136.2, subd. (i)), and imposed a $400 domestic violence fee (§ 1203.097). On appe al, he contends the protective order and domestic violence fee were statutorily unaut horized. Respondent concedes both points and we agree.
DISCUSSION
I. The 10-year protective order was unauthorized Appellant contends the protective order wa s unauthorized. Respondent concedes the protection order must be set aside becaus e appellant was not convicted of a crime of domestic violence. We agree. Section 136.2, subdivision (i) provides, “I n all cases in which a criminal defendant
has been convicted of a crime of domestic violence as defined in Section 13700, the court, at the time of sentencing, shall consid er issuing an order restraining the defendant from any contact with the vic tim.” Section 13700 defines domestic violence as “abuse committed against . . . a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (§ 13700, subd. (b).) “Abus e” is defined as “intentionally or recklessly causing or attempting to cause bodily injury , or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (§ 13700, subd. (a).) Here, appellant did not stipulate to the use of force or violence in intimidating the witness. He pleaded to the lesser crime of non-forcible witness dissuasion. (§ 136.1, subd. (b)(1).) Therefore, appellant was not convicted of a crime of domestic violence

1 All further statutory references are to the Penal Code unless otherwise indicated.3 within the meaning of section 13700, and the subdivision (i) protective order was
unauthorized.

II. The domestic violence fee was unauthorized Appellant contends the $400 domestic violence fee was unauthorized because he was not granted proba tion. We agree. Section 1203.097 provides for “[a] mini mum payment by the defendant of four hundred dollars ($400)” where “a person is gran ted probation.” (§ 1203.097, subd. (a).) A section 1203.097 domestic violence fee may be imposed only if the defendant is placed on probation. Here, appellant was sentenced to a six-year pr ison term with no probation. Therefore, the domestic violence fee was unauthorized.
DISPOSITION The judgment is affirmed. The trial court is directed to issue an amended abstract of judgment to omit the $400 domestic viol ence fee and 10-year protective order.
NOT TO BE PUBLISHED.

CHANEY, Acting P. J.

We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.