Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC640548
McAdams, J.
Neil Arnaldo Prudente pleaded no contest to false imprisonment as a felony (Pen. Code §§ 236, 237) and was placed on probation, on various terms and conditions. Defendant challenges the imposition of probation costs as probation conditions. We will modify the judgment to strike the fees as probation conditions, reimpose them as fees, and affirm as modified.
STATEMENT OF FACTS
The underlying historical facts are not relevant to this appeal and will not be recited. The facts related to defendant’s claim are as follows. On April 20, 2007, the court held a sentencing hearing. The court indicated it had read the probation report. The court suspended sentence for three years and stated: “Defendant is admitted to three years formal probation under the following terms and conditions.” The court then began to recite a list of various conditions. Several times, the court interrupted the recitation to get clarification of some point from the probation officer or the attorneys, then continued the recitation of orders. After the final interruption, the court resumed: “Restitution fund fine of $220, court security fee of $20.00. I’m finding the defendant cannot possibly pay that without a substantial economic hardship, it’s to run concurrent to his time in custody. [¶] Probation revocation restitution fine of $220 imposed but suspended. A hundred twenty-nine dollars seventy-five cents criminal justice administration fee. [¶] Defendant is ordered to supply buccal swab sample, prints, blood specimen and other biological specimens pursuant to 296. [¶] Pre-sentence investigation fee of $150. Probation supervision fee $35.00. Attorney fees of $300. That’s not a condition of probation. It is a fee attached thereof. [¶] And on this matter defendant is eligible for workfurlough. You can apply inside. You’ll be eligible only for that pursuant to the statement I made earlier unfortunately you were not here. NO EMP, No PSP, no Sheriff’s Parole. [¶] And on the other two matters….” The court then turned its attention to the defendant’s trailing cases.
Under the rubric “Recommendation,” the probation report listed “1. Probation be granted,” followed by 23 recommended probation conditions, including payment of fines and fees in recommendations 20 through 23. The report then states: “NOTE: Attorney fees if appropriate,” followed by the probation officer’s signature.
DISCUSSION
Defendant contends the trial court imposed, as probation conditions, the payment of a presentence investigation fee of $150 and a probation supervision fee of $35. He does not challenge the amount of the fees, only the fact that they were imposed as probation conditions, rather than as independent orders. The Attorney General argues that the claim has been forfeited citing People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), People v. Scott (1994) 9 Cal.4th 331 (Scott) and People v. Welch (1993) 5 Cal.4th 228 (Welch). He then acknowledges that “the reasonable costs of probation are collateral costs and their payment cannot be made a condition of probation,” but argues that the court did not impose them as conditions of probation here. Finally, he recommends that, if we see the record differently, this court can order the abstract of judgment modified by the superior court.
Penal Code 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 defendant’s 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. Washington (2002) 100 Cal.App.4th 590, 592.) 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 (1998) 65 Cal.App.4th 902.)
Penal Code section 1203.1b, subdivision (a), provides in pertinent 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....”
Penal Code section 1203.1b, subdivision (d), provides in pertinent 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.”
We reject the Attorney General’s contention that defendant’s claim is forfeited. If the court ordered payment of probation costs as a condition of probation, that order was unauthorized. An unauthorized sentence is an exception to the forfeiture rule of Welch, Scott and Valtakis. (See Scott, supra, 9 Cal.4th at p. 334; People v. Smith (2001) 24 Cal.4th 849.)
This record is not perfectly clear as to whether payment of a probation supervision fee was ordered as a condition of probation. The trial court’s order that defendant pay probation fees directly followed the imposition of other fees, which are properly made conditions of probation. The court’s statement – “That’s not a condition of probation. It is a fee attached thereof” – came immediately after the attorney fee order, and is phrased in the singular. The probation report listed the probation costs and fees along with other orders which were clearly conditions of probation, but the attorney fee reference was a separate note. The minute orders do not clarify the ambiguities. Taken together, the reporter’s transcript and the probation report tend to suggest that the court did, in fact, impose the probation costs as probation conditions, and excepted only the attorney fees. To the extent that the record can be interpreted as conditioning defendant’s probation upon payment of probation fees and costs, modification of the conditions of probation to strike those fees and costs is appropriate. Accordingly, we will modify the probation order by striking those conditions from the order granting probation; however, we will also affirm the order that defendant pay such costs. (People v. Hart, supra, 65 Cal.App.4th at p. 907 .)
DISPOSITION
The conditions of probation are modified to delete the requirement that defendant pay a pre-sentence investigation fee of $150 and a probation supervision fee of $35.00; however, the order that defendant pay such fees is affirmed. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.