Opinion
H032006
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOHNSON, Defendant and Appellant
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Joseph Johnson pleaded no contest to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and to injuring or obstructing telephone or cable lines (§ 591). The trial court suspended imposition of sentence and placed defendant on probation, with various terms and conditions, including paying a probation supervision fee of $10 per month.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court erred in ordering him to pay the probation supervision fee as a condition of probation. We agree and we will order the judgment modified accordingly.
II. BACKGROUND
As defendant was convicted by plea, the summary of his offense is taken from the preliminary examination. San Jose Police Officer Lisa Gannon testified that on January 1, 2007, defendants wife reported that defendant punched her, "[r]ipped the phone out of the wall and broke it," and then left the house.
Defendant was charged by information filed June 22, 2007, with one felony count of inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and one misdemeanor count of injuring or obstructing telephone or cable lines (§ 591). The information further alleged that defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)).
On August 3, 2007, the trial court reduced the felony count to a misdemeanor pursuant to section 17, subdivision (b), and defendant pleaded no contest to the two misdemeanor counts. The trial court suspended imposition of sentence and placed defendant on probation for three years, with various terms and conditions, including 270 days in jail with 122 days credit, and a probation supervision fee of $10 per month. The trial court ordered all fines and fees stayed until August 3, 2008.
III. DISCUSSION
Defendant contends the trial court erred by ordering him to pay the probation supervision fee as a condition of probation, and that "the order requiring [him] to pay probation supervision costs as a condition of probation must be stricken."
As an initial matter, the People contend defendants claim is "premature" because the trial court stayed all fines and fees until August 3, 2008.
At the hearing on August 3, 2007, the following exchange took place between defense counsel and the trial court:
"[DEFENSE COUNSEL]: And, Your Honor, [defendant] would also request that the Court consider, given his financial circumstances and the fact that he will be spending considerable amount of time in custody on this and a violation of parole, the Court would consider —[¶] [THE COURT]: Im staying all of his fines and fees." In sentencing defendant thereafter, the trial court stated that all fines and fees "are ordered stayed until August the 3rd, 2008."
The People fail to explain the significance of the trial courts stay order with respect to defendants current appeal. The trial courts stay order only delays for one year the execution of the underlying order concerning fines and fees. To the extent the People are suggesting that defendants appeal should be dismissed because of the one-year stay on the fines and fees, the People fail to support this contention with legal argument. We therefore deem the issue abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].)
Turning to the substance of defendants appeal, the People concede that payment of probation costs may not be ordered as a condition of probation. The People suggest that this court follow People v. Hart (1998) 65 Cal.App.4th 902, by deleting the probation supervision fee as a condition of defendants probation, and specifying that defendants "payment of probation fees and costs is a separate financial obligation and `an order entered at judgment which `may be enforced as permitted in the relevant statutes. [Citation.]."
We find appropriate the Peoples concession that payment of a probation supervision fee may not be ordered as a condition of probation. Section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay "all or a portion of the reasonable cost of any probation supervision," depending upon the defendants ability to pay. However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. "These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d);[] People v. Hart[, supra,] 65 Cal. App. 4th [at pp.] 906-907.)" (People v. Washington (2002) 100 Cal.App.4th 590, 592-593.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (People v. Hart, supra, 65 Cal.App.4th at p. 907; see also People v. Bradus (2007) 149 Cal.App.4th 636, 641-642; People v. OConnell (2003) 107 Cal.App.4th 1062, 1068; People v. Hall (2002) 103 Cal.App.4th 889, 892.)
Section 1203.1b, subdivision (a), provides in part: "In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies."
Section 1203.1b, subdivision (d), provides in part: "Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt."
In this case, during sentencing, the trial court stated: "Defendant is placed on three years formal probation on the following terms and conditions: Therell be a 10-dollar a month probation supervision fee." Payment of the probation supervision fee should not have been ordered as a condition of probation. Accordingly, we will direct the trial court to modify the probation order to strike this condition and to enter a separate order directing the payment of a probation supervision fee.
IV. DISPOSITION
The case is remanded to the trial court to amend the judgment, to delete that portion of the judgment (order granting probation) directing defendant to pay a probation supervision fee as a condition of probation; and to enter a separate order pursuant to section 1203.1b, directing the payment of such a fee. As modified, the judgment is affirmed.
We Concur:
RUSHING, P.J.
ELIA, J.