Opinion
F053885
8-5-2008
THE PEOPLE, Plaintiff and Respondent, v. JABBAAR MARKELL KING, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Before Vartabedian, Acting P.J., Dawson, J. and Hill, J.
The original minute order from the sentencing hearing was entered on September 25, 2007. An amended minute order was entered on April 2, 2008.
Appellant Jabbaar Markell King pleaded no contest to one count of possession of cocaine for sale in violation of Health and Safety Code section 11351. The superior court suspended imposition of sentence, placed King on probation for a period of three years, ordered King to serve one year in the custody of the Kern County Sheriff, and imposed various fines and fees, including a monthly probation supervision fee of $40.
On appeal, King contends the superior court erred because the monthly probation supervision fee was imposed as a condition of probation. The Attorney General concedes that King "correctly notes this fee was imposed as a condition of probation, not as a separate order.... This was error." The Attorney General argues that the proper remedy is modification of the judgment by deleting the monthly fee as a condition of probation and making it simply an order entered at judgment. King did not file an appellants reply brief and, as a result, has not contested the modification proposed by the Attorney General.
In Brown v. Superior Court (2002) 101 Cal.App.4th 313, the court stated "that a trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. ([Pen. Code,] § 1203.1b.)" (Id. at p. 321, italics added.)
In accord with Brown and the concession of the Attorney General, we conclude that the superior court erred in ordering King to pay, as a condition of probation, a monthly fee for the cost of supervising him on probation.
In People v. Hart (1998) 65 Cal.App.4th 902, the trial court granted probation and erroneously ordered the defendant to pay the costs of probation as a condition of probation. To remedy the error, the appellate court stated: "Accordingly, the order granting probation must be modified to delete the order to pay costs of probation from the conditions of probation, making it simply an order entered at judgment. As such, the order may be enforced as permitted in the relevant statutes." (Id. at p. 907.) The court then modified the order granting probation and affirmed it as modified. (Ibid.)
Similarly, we will modify the amended minute order1 so that King is required to pay the monthly probation supervision fee, but not as a condition of probation.
DISPOSITION
The judgment (amended minute order) is modified (1) to delete the payment of a $40 monthly probation supervision fee from the conditions of probation, and (2) to include the following language: "As a separate order and not a condition of probation, defendant shall pay a $40 per month fee for probation supervision costs." As so modified, the judgment (amended minute order) is affirmed.