Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F07906886. Houry Sanderson and James Quaschnick, Judges.
Judge Sanderson took appellant’s plea; Judge Quaschnick sentenced appellant.
Ross Thomas, 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, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J. and Dawson, J.
INTRODUCTION
Appellant Jesus Mendoza pleaded no contest to unlawfully taking or driving a vehicle and was placed on formal probation for two years. On appeal, he contends the court improperly ordered him to pay costs and fees as a condition of probation. We will modify the court’s order and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 22, 2007, appellant and Alex Trinidad were at a friend’s house. Appellant approached the victim and asked to borrow his car keys. The victim refused. Appellant and Trinidad backed the victim up against a wall, and appellant aggressively demanded the keys and raised his hand as if he was going to hit the victim. The victim was holding the car keys in his hand, and raised up both hands to protect himself. Appellant grabbed the lanyard which held the keys and forcibly pulled it out of the victim’s hand. Appellant and Trinidad ran to the victim’s car, they got inside, and appellant drove it away. The car was found two days later and it had been stripped. There were prints from appellant and Trinidad in the vehicle.
Appellant was arrested a few weeks later, and claimed the victim willingly gave him the car keys so appellant could purchase drugs for him. Appellant admitted he failed to return the car and claimed he left it in a friend’s backyard because he blew out a tire. Appellant said he had been associated with the “Bulldog” street gang “forever.” Appellant had a lengthy juvenile record but this was his first offense as an adult.
On September 8, 2007, a felony complaint was filed in the Superior Court of Fresno County charging appellant with count 1, second degree robbery (Pen. Code, § 211), and count 2, unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Appellant pleaded not guilty.
All further statutory references are to the Penal Code unless otherwise indicated.
Plea Proceedings
On October 9, 2007, appellant requested to withdraw his not guilty pleas. Defense counsel stated appellant would accept the prosecution’s offer to plead to count 2, with no state prison term. The court advised appellant of his constitutional rights, appellant waived his rights, he pleaded no contest to count 2, and the court dismissed count 1.
On November 6, 2007, the court placed appellant on formal probation for two years “under the following terms and conditions,” including service of 365 days in county jail with credit for time served, to contact the probation officer within two days of his release, obey all lawful directives of the probation officer, advise the probation officer of any change of address, not to leave the state, that he was subject to a search condition, to seek and maintain gainful employment while on probation, not to knowingly possess stolen property, not to associate with any person known to him to be a member of a criminal street gang, and “to make restitution as directed by [the] probation officer.”
The court further ordered appellant to pay a $400 restitution fine pursuant to section 1202.4, subdivision (b), and a $400 restitution fine pursuant to section 1202.44, but suspended that fine unless probation was revoked. The court also ordered:
“He’s to pay for probation supervision, pre-sentence report, treatment programs and other probation costs pursuant to Penal Code Section 1203.1(b). [¶] Pay courtroom security fee in the amount of $20 pursuant to Penal Code Section 1465.8(a)(1) by December 10th.”
The court asked appellant if he understood “all those terms and conditions,” and appellant said yes. The court clarified the $20 court security fee was due on December 10, 2008.
“[APPELLANT]: Okay. I was going to say that was going to be kind of hard for me to do that.
“THE COURT: Yeah. I recognize that. I meant next year. So you’ve got a full year to save up $20.
“[APPELLANT]: All right. I heard 400, 400 and then 20.
“THE COURT: Well, all of those are to be paid at the direction of your probation officer. Probation officer will give you a time schedule. But as to the $20 you have until December [2008] to save your money.
“[APPELLANT]: Yes, sir.”
The minute order states the court placed appellant on probation subject to “the following terms and conditions,” including those set forth above and “to pay fee pursuant to [section] 1203.1b to the Probation Department.”
On January 4, 2008, appellant filed a timely notice of appeal, and on the same day, the superior court granted his request for a certificate of probable cause.
DISCUSSION
On appeal, appellant contends the court improperly ordered him to pay costs and fees under section 1203.1b as a condition of probation, such that his failure to pay could result in a probation violation, revocation of probation, and possible imposition of a prison term. Appellant acknowledges his defense attorney did not raise this objection during the sentencing hearing, but asserts the issue is still cognizable on appeal because the court’s order was unauthorized. In the alternative, appellant claims defense counsel was prejudicially ineffective for failing to object.
A defendant who is granted probation may be ordered to pay the costs of probation supervision and the preparation of probation reports, preplea investigation and report, and presentence investigation and report, if he is able to do so. (§ 1203.1b, subds. (a), (b); People v. Washington (2002) 100 Cal.App.4th 590, 592; People v. Hall (2002) 103 Cal.App.4th 889, 892.) “However, payment of such costs cannot be made a condition of probation. [Citation.]” (People v. Hall, supra, 103 Cal.App.4th at p. 892.)
“Although the trial court is statutorily authorized to make respective orders for the payment of appointed attorney fees and for the costs of probation, depending on a defendant’s ability to pay, such costs and fees cannot legally be imposed as conditions of probation. [Citations.] The costs of probation imposed for preparation of the probation report and of supervising probation ‘may not be a condition of probation as the costs are collateral and [section 1203.1b] itself provides for enforcement of the order by civil collection.’ [Citations.] Attorney fees are constitutionally proscribed as probation conditions because they would ‘exact[] a penalty for the exercise of a constitutional right. Thus, the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendant’s grant of probation upon payment thereof.’ [Citation.] Orders for appointed attorney fees and for probation costs are merely entered at the time of judgment and sentencing and ‘may be enforced as permitted in the relevant statutes.’ [Citation.]” (People v. Bradus (2007) 149 Cal.App.4th 636, 641-642, fn. omitted.)
Thus, the imposition of costs and fees pursuant to section 1203.1b “are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. [Citations.] The costs are not conditions of probation. [Citation.]” (People v. Washington, supra, 100 Cal.App.4th at pp. 592-593 ; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 322; § 1203.1b, subd. (d).)
Appellant complains the court imposed costs and fees as a condition of probation, and the order is invalid and must be stricken. When the court placed appellant on probation, it broadly referred to “the following terms and conditions,” including section 1203.1b costs and fees. The court did not specifically impose these costs and fees as conditions of probation. While defense counsel did not raise any objections, appellant, who was 19-years-old, expressed some confusion as to when other fees were due and how he would raise that amount of money in a limited period of time.
To the extent there is any confusion in the court’s order, the order granting probation will be modified to delete the order to pay certain fees and 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. (See, e.g., People v. Hart (1998) 65 Cal.App.4th 902, 907.)
DISPOSITION
The conditions of probation are modified to delete the requirement to pay costs of preparation of the probation report and of probation supervision pursuant to Penal Code section 1203.1b, however, the order that appellant pay such costs is affirmed. As modified, the probation order (judgment) is affirmed.