Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct.No. C1075400
Duffy, J.
Defendant Denise Lozano was convicted by no-contest plea of aggravated assault in violation of Penal Code section 245, subdivision (a)(1) and second-degree burglary in violation of sections 459-460, subdivision (b). The court suspended imposition of sentence and placed defendant on probation. The court also imposed various assessments and fees, including costs related to probation (§ 1203.1b), a court security fee (§ 1465.8), a criminal conviction assessment (Gov. Code, § 70373), and a criminal justice administration (booking) fee (Gov. Code, §§ 29550, 29550.1, 29550.2). The court made payment of these assessments and fees conditions of probation.
Defendant’s name appears in the record as “Denise Alvarez,” her maiden name, and “Denise Lozano,” her married name. We refer to her as Denise Lozano, as she stated was currently her name.
Further unspecified statutory references are to the Penal Code.
Defendant appeals from the judgment, challenging the imposition of these particular assessments and fees as probation conditions. Respondent wisely concedes the point. We modify the sentence to reflect that these particular assessments and fees are not conditions of probation and otherwise affirm the judgment.
STATEMENT OF THE CASE
The underlying facts do not appear in the record and they are not relevant to our review.
Defendant was charged by felony complaint with one count of second-degree attempted robbery in violation of sections 664 and 211-212.5, subdivision (c) (count 1) and one count of aggravated assault in violation of section 245, subdivision (a)(1) (count 2). The complaint was later amended to add an additional charge of second-degree burglary in violation of sections 459-460, subdivision (b) (count 3).
After waiving her rights and being advised of the consequences of her plea, defendant pleaded no contest to counts 2 and 3 and the court found a factual basis for the plea. At sentencing, the court dismissed count 1 and, consistently with the recommendation of the probation report, suspended imposition of sentence, placing defendant on formal probation for three years. The court imposed a county jail sentence “commensurate with” the time she had already served. The court also imposed, without objection, various conditions of probation and various assessments and fees, referring to all of them as “conditions of probation.” These included a monthly probation supervision fee not to exceed $110 (§ 1203.1b); a court security fee of $60 (§ 1465.8); a criminal conviction assessment of $60 (Gov. Code, § 70373); and a criminal justice administration (booking) fee of $129.75 (Gov. Code, §§ 29550, 29550.1, 29550.2).
The probation report, which was a waived referral and not a full report, recommended that the probation supervision fee, the court security fee, and the criminal conviction assessment not be imposed as conditions of probation but as separate orders.
Defendant timely appealed.
DISCUSSION
On appeal, defendant challenges the imposition of these four fees and assessments as conditions of probation. She contends that the challenge was not waived by her failure to object below (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1279-1280, overruled on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1068) and that we should modify the sentence so as to exclude these four fees and assessments as conditions of probation. Respondent asserts no waiver and concedes the error, joining defendant’s request for modification of the sentence. We accept the concession.
While a defendant may be ordered to reimburse the county for probation-related costs, payment of the costs may not be made a condition of probation. (§ 1203.1b; People v. Hart (1998) 65 Cal.App.4th 902, 907; People v. Benner (2010) 185 Cal.App.4th 791, 797.) This is because an order for recoupment of probation costs is a separate order that is collateral to the judgment and section 1203.1b itself provides for enforcement of the order by civil collection. (Hart, supra, at p. 907.) The remedy for such an error is for the reviewing court to modify the sentence so that probation-related costs are not conditions of probation. (Ibid.) The court security fee under section 1465.8, the criminal conviction assessment under Government Code section 70373, and the booking fee under Government Code sections 29550, 29550.1, 29550.2 are likewise collateral and separate orders that should not be imposed as conditions of probation. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 [polygraph testing]; People v. Washington (2002) 100 cal.App.4th 590, 592-593 [extradition costs].) We will accordingly modify the sentence to reflect that these four particular fees and assessments imposed are not conditions of probation.
DISPOSITION
The sentence is modified to reflect that the monthly probation supervision fee not to exceed $110 (§ 1203.1b); the court security fee of $60 (§ 1465.8); the criminal conviction assessment of $60 (Gov. Code, § 70373); and the criminal justice administration (booking) fee of $129.75 (Gov. Code, §§ 29550, 29550.1, 29550.2) are separate orders and are thus excluded from the conditions of defendant’s probation. The judgment is otherwise affirmed.
WE CONCUR: Rushing, P.J., Premo, J.