Opinion
H036324
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMON ANTHONY SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1086031)
Following a negotiated plea, the trial court granted probation to defendant Ramon Anthony Sanchez subject to certain terms and conditions and imposed specified fines and fees. On appeal, defendant challenges a probation condition prohibiting defendant from being adjacent to any school campus as specified. He also asks this court to correct the imposition of fines and fees to correspond to the court's oral pronouncement of judgment. (See Pen. Code, § 1237, subd. (a).)
All further statutory references are to the Penal Code unless otherwise stated.
We modify the minute order granting probation and challenged probation condition and affirm as modified. A. Procedural Background
After waiving his right to a preliminary examination and his constitutional rights, defendant Sanchez pleaded no contest to the four counts alleged in a felony complaint pursuant to a negotiated plea agreement. The crimes included three felonies and one misdemeanor, specifically carrying a loaded firearm with a prior weapons violation (§ 12031, subds. (a)(1), (a)(2)(c)) (count one), carrying a concealed firearm with a prior weapons violation (§§ 12025, subd. (a)(2), 12031, subd. (a)(2)(c)) (count two), possession of a firearm while under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (e)) (count three), and resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)) (count four). The negotiated disposition provided for a grant of probation and an eight-month county jail term as a condition of probation.
The Santa Clara County probation memorandum stated: "Due to the defendant wearing Norteno gang attire at the time of his arrest, having numerous gang tattoos, and admitting to being a Norteno gang member during the booking process, gang conditions are recommended." The recommended conditions included: "You shall not be adjacent to any school campus during school hours unless you are enrolled or with prior permission of the school administrator or probation."
At the time of sentencing, it appears defendant was 20 years old. The court indicated that it would be following probation's recommendations. Defense counsel objected to the gang conditions since no gang enhancement had been alleged and the parties had not stipulated to the gang conditions. The court pointed to language in the police report that indicated the officer recognized that defendant was wearing Norteno gang attire and observed that defendant had visible tattoos suspected to be gang-related and he was walking in an area known for Norteno gang members.
Defense counsel argued that "the fact that a person is a gang member is not enough to impose gang conditions." She contended that a relationship between the actual crime and gang membership was required. The court rejected this contention and identified a rehabilitative purpose for imposing the gang conditions.
The court granted probation and imposed gang conditions, including the recommended school condition. It also ordered defendant to pay a restitution fine of $200 and a probation revocation restitution fine of $200, which it ordered suspended pending successful completion of probation (§ 1202.44). The court also ordered defendant to pay a number of fees but it did not order him to pay a drug program fee. B. Probation Condition Limiting Proximity to School Campuses
The court orally imposed the recommended probation condition but the written probation condition contains a nonsubstantive change: "You shall not be adjacent to any school campus during school hours unless you are enrolled or have prior permission of the school administrator or probation." (Italics added.)
1. Reasonable Relationship
Defendant argues that the school condition "lacks any reasonable nexus to [his] criminal behavior." He also contends that the school condition had "nothing to do with curtailing gang behavior or association" and "makes no reference to gangs." He maintains that "no rational basis existed for the trial court to limit appellant's presence near a school," citing In re D.G. (2010) 187 Cal.App.4th 47. He submits that "the condition is irrational on its face and must be stricken."
Section 1203.1, which authorizes a court to grant probation "upon those terms and conditions as it shall determine," "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. (Carbajal, supra, 10 Cal.4th at p. 1120 . . . .) The court may impose upon probationers 'reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .' (§ 1203.1, subd. (j).)" (People v. Anderson (2010) 50 Cal.4th 19, 26.)
"We review conditions of probation for abuse of discretion. ([People v. Carbajal (1995) 10 Cal.4th 1114,] 1121 . . . ; People v. Welch (1993) 5 Cal.4th 228, 233 . . . .) Generally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' ([People v. Lent (1975) 15 Cal.3d 481,] 486 . . . .) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1 . . . ; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 . . . .) As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. (See Carbajal, supra, 10 Cal.4th at 1121 . . . .)" (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
Generally speaking, the court could properly impose gang-related conditions since defendant was an apparent gang member and such conditions would be related to preventing future gang-related criminality, even if the conditions were not reasonably related to his offenses and the prohibited conduct that was not itself criminal. (See People v. Lopez (1998) 66 Cal.App.4th 615, 626.) Even though the school condition did not include the word "gang," it clearly was one of the gang-related probation conditions recommended by probation and imposed on defendant by the court.
In re D.G., supra, 187 Cal.App.4th 47, the case upon which defendant relies, concerned a juvenile probation condition generally restricting a ward's proximity to school campuses and the appellate court concluded the condition was rational only as to school grounds. (Id. at pp. 51, 53, 56-57.) That case is distinguishable since the ward was not an apparent gang member and, in any case, counsel specifically objected to the condition in the juvenile court (id. at p. 51).
While defense counsel opposed the imposition of gang conditions in general, she never argued that the school condition in particular was not reasonably related to preventing future gang-related criminality. Defense counsel's reasonableness argument with regard to the school condition in particular was not preserved for appellate review. (See People v. Welch (1993) 5 Cal.4th 228, 237.) A timely objection would have permitted the parties to develop the record and the court to exercise its discretion. (Id. at pp. 235-236.)
2. Vagueness
Defendant argues that the school condition is unconstitutionally vague on its face because he "has no way of knowing when he is 'adjacent' to a school such that he is in violation of his probation." The People maintain that the word "adjacent" as used in the school condition is not unconstitutional vague, citing Grayned v. City of Rockford (1972) 408 U.S. 104 and People v. Seale (1969) 274 Cal.App.2d 107.
Even absent an objection below, an appellant may challenge a probation condition as unconstitutionally vague on its face. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (Id. at p. 890.)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' (People v. Castenada (2000) 23 Cal.4th 743, 751 . . . .) The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' (ibid.), protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.)The vagueness doctrine ' "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 . . . .) A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]' (Id. at p. 1116 . . . .) In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' (Id. at pp. 1116-1117 . . . , italics in original.)" (Ibid.)
The word "adjacent" conveys proximity and generally means "close to," "lying near," "next to," or "adjoining," or (See The American Heritage College Dict. (3d ed.1997) p. 16 ["Close to; lying near" and "Next to; adjoining"]; Oxford American Dict. of Current English (1999), accessed at Oxford Reference Online <http://www.oxfordreference.com> [as of Aug. 4, 2011] ["lying near or adjoining"]; Black's Law Dict. (9th ed. 2009) p. 46 ["Lying near or close to, but not necessarily touching"].) According to another common dictionary, it can also mean "not distant: nearby." (Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 14.)
As this court has recently observed: "[T]he meanings of 'adjacent' and 'adjacent to' are clear enough as an abstract concept. They describe when two objects are relatively close to each other. The difficulty with this phrase in a probation condition is that it is a general concept that is sometimes difficult to apply. At a sufficient distance, most reasonable people would agree that items are no longer adjacent, but where to draw the line in the continuum from adjacent to distant is subject to the interpretation of every individual probation officer charged with enforcing this condition." (People v. Barajas (2011) 198 Cal.App.4th 748, 761.)
The People do not identify any specific distance at which, in their view, defendant would no longer be "adjacent" to a school campus. The People instead argue that the term "adjacent" is not vague because that word was determined to be unambiguous as used in the statutes considered in Grayned and Seale.
In Grayned, the United States Supreme Court considered an antinoise ordinance, which provided in pertinent part: " '(N)o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof. . . .' " (Grayned v. City of Rockford, supra, 408 U.S. at pp. 107-108.) The court determined that a challenged antinoise ordinance was not impermissibly vague but it acknowledged that "the question [was] close." (Id. at p. 109.)
In Grayned, the court reasoned as follows: "Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by 'flexibility and reasonable breadth, rather than meticulous specificity' [citation], but we think it is clear what the ordinance as a whole prohibits. Designed, according to its preamble, 'for the protection of Schools,' the ordinance forbids deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times-when school is in session-and at a sufficiently fixed place-'adjacent' to the school." (Id. at pp. 110-111, fns. omitted.) As authority for its determination with regard to the word "adjacent," the court cited "Cox v. Louisiana, 379 U.S. 559, 568-569, 85 S.Ct. 476, 482-483, 13 L.Ed.2d 487 (1965) ('near' the courthouse not impermissibly vague)." (Id. at p. 112, fn. 17.) The court determined that the terms' vagueness was "dispelled by the ordinance's requirements that (1) the 'noise or diversion' be actually incompatible with normal school activity; (2) there be a demonstrated causality between the disruption that occurs and the 'noise or diversion'; and (3) the acts be 'willfully' done." (Id. at pp. 113-114, fn. omitted.)
In Cox v. State of La. (1965) 379 U.S. 559 , cited in Grayned, the U.S. Supreme Court considered the following statute: " 'Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty pickets or parades in or near a building housing a court of the State of Louisiana * * * shall be fined not more than five thousand dollars or imprisoned not more than one year, or both.' [Citation.]" (Id. at p. 560, italics added.) Appellant was convicted for demonstrating "near" the courthouse and the demonstration took place "exactly 101 feet from the courthouse steps and, judging from the pictures in the record, approximately 125 feet from the courthouse itself." (Id. at p. 568.) The court held that the statute on its face was a valid law since the state had "a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create" and the statute was sufficiently precise. (Id. at pp. 562-564.)
As to the statute as applied to the conduct in that case, the court stated: "The question is raised as to whether the failure of the statute to define the word 'near' renders it unconstitutionally vague. [Citations.] It is clear that there is some lack of specificity in a word such as 'near.' While this lack of specificity may not render the statute unconstitutionally vague, at least as applied to a demonstration within the sight and hearing of those in the courthouse, it is clear that the statute, with respect to the determination of how near the courthouse a particular demonstration can be, foresees a degree of on-the-spot administrative interpretation by officials charged with responsibility for administering and enforcing it." (Id. at p. 568, fns. omitted.) It determined that appellant had been improperly convicted because the record "clearly show[ed] that the officials present gave permission for the demonstration to take place across the street from the courthouse." (Id. at p. 569.) "In effect, appellant was advised that a demonstration at the place it was held would not be one 'near' the courthouse within the terms of the statute." (Id. at p. 571.) But the court gave this caveat: "This is not to say that had the appellant, entirely on his own, held the demonstration across the street from the courthouse within the sight and hearing of those inside, or a fortiori, had he defied an order of the police requiring him to hold this demonstration at some point further away out of the sight and hearing of those inside the courthouse, we would reverse the conviction as in this case. In such cases a state interpretation of the statute to apply to the demonstration as being 'near' the courthouse would be subject to quite different considerations." (Id. at pp. 571-572, italics added.)
In People v. Seale, supra, 274 Cal.App.2d 107, the California case cited by the A.G., a defendant was convicted of knowingly bringing a firearm onto grounds adjacent to a city jail in violation of former section 4574. (Id. at pp. 107, 111, fn. 1.) The appellate court rejected a vagueness challenge to the word "adjacent." It concluded that "there can be no vagueness or uncertainty with respect to whether the planter strip was within the grounds adjacent to the jail building. [¶] The fact that there may arise marginal cases in which it is difficult to determine whether certain ground is 'adjacent' to a prison or jail is not a sufficient reason to hold that the use of such word makes the statute unconstitutionally vague and uncertain. (Davis v. Municipal Court (1966) 243 Cal.App.2d 55, 58 . . . .) All that is required is reasonable certainty. (People v. Victor [1965] 62 Cal.2d 280, 300 . . . .)" (Id. at p. 115.) The result in Seale was consistent with the principle that "a defendant who falls 'squarely within' the reach of a statute lacks standing to challenge its vagueness as it 'might be hypothetically applied to the conduct of others . . . .' (Parker v. Levy (1974) 417 U.S. 733, 756 [94 S.Ct. 2547, 41 L.Ed.2d 439].)" (People v. Murphy (2001) 25 Cal.4th 136, 149.)
As the California Supreme Court has recognized, "[a] contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.) But here we are not concerned with a contextual application of the challenged probation condition and the condition's purpose and terms do not circumscribe the meaning of the word "adjacent."
A gang-related probation condition restricting proximity to school campuses is aimed at deterring a defendant from continuing his gang associations and preventing gang-related crimes involving a campus or its students. Since students come and go from campuses and may be in their vicinity, the word "adjacent" is susceptible to differing interpretations. This ambiguity leaves the probationer without clear direction and potentially subject to selective enforcement.
Further, the challenged probation condition may implicate a protected constitutional interest. (Cf. Kolender v. Lawson (1983) 461 U.S. 352, 353, 358, 361 [California disorderly conduct statute, which implicated constitutional right to freedom of movement, was "unconstitutionally vague on its face because it encourage[d] arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute"].) "The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of the enactment. . . . The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. . . . [¶] Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489, 498-499 .) "Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." (Grayned v. City of Rockford, supra, 408 U.S. at p. 109, fn. omitted.)
"The right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. (In re White (1979) 97 Cal.App.3d 141, 158 Cal.Rptr. 562. . . .)" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 ["the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole"]; see also City of Chicago v. Morales (1999) 527 U.S. 41, 53-54 (plur. opn. of Stevens, J.) [In addition to recognizing that freedom of movement is a part of protected liberty, a plurality of the United States Supreme Court recognized that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment"].) The freedom of association under the federal Constitution receives protection as a fundamental element of personal liberty to choose intimate personal relationships and as an expressive aspect of the First Amendment. (Roberts v. U.S. Jaycees (1984) 468 U.S. 609, 617-618 .) But the California Supreme Court has stated that the federal Constitution "does not recognize 'a generalized right of "social association[]" ' (Dallas v. Stanglin (1989) 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18[])" and the First Amendment does not "protect the collective public activities of the gang members within the [area subject to the gang injunction], activities directed in the main at trafficking in illegal drugs and securing control of the community through systematic acts of intimidation and violence." (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th 1090, 1110; see id. at pp. 1110-1112.)
Accordingly, to avert the danger of arbitrary enforcement and ensure fair notice of the prohibited conduct, we will modify the school condition to provide that defendant must be more than 50 feet from any school campus. (See People v. Barajas, supra, 198 Cal.App.4th at p. 760.)
3. Overbreadth
Defendant asserts that the school condition is unconstitutionally overbroad because "it unjustifiably infringes upon [his] rights of travel and association." He suggests a number of legitimate reasons why he might be on or near school campuses. He also complains that the probation condition should not apply to "institutions traditionally cater[ing] to the needs of adults" and lists examples of such educational institutions. No overbreadth objection was raised below.
See ante, footnote 3.
While a probationer may not automatically surrender all constitutional rights, it is well that settled that "probation is a privilege and not a right" (People v. Olguin (2008) 45 Cal.4th 375, 384) and "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citation.]" (U.S. v. Knights (2001) 534 U.S. 112, 119 ; see Griffin v. Wisconsin (1987) 483 U.S. 868, 874 [probationers "do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.' [Citation.]"].) "Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (U.S. v. Knights, supra, 534 U.S. at p. 119.)
"Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is 'not entitled to the same degree of constitutional protection as other citizens.' (People v. Peck (1996) 52 Cal.App.4th 351, 362 . . . .)" (People v. Jungers (2005) 127 Cal.App.4th 698, 703.) But "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.)
Only those constitutional challenges presenting a pure question of law, remediable on appeal by modification of the condition, may be raised for the first time on appeal. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889.) In this case, defendant's constitutional challenges to the probation condition's scope are not pure questions of law that may be decided without reference to specific facts and circumstances and, therefore, they are not cognizable on appeal. (See ibid.)
In addition, the "permission of probation" exception does not render the probation condition constitutionally defective as suggested by defendant because the probation condition is not completely open-ended. (Cf. People v. O'Neil (2008) 165 Cal.App.4th 1351, 1357 [disapproving condition prohibiting defendant from associating with all persons designated by probation officer]; People v. Bauer (1989) 211 Cal.App.3d 937, 945 [disapproving condition making defendant's residence completely subject to his probation officer's approval].) The probation officer implicitly must act reasonably and consistent with the general purposes of the probation condition itself and probation supervision in granting or withholding permission. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 . . . [probation condition requiring defendant to "[f]ollow such course of conduct as the probation officer may prescribe" did not authorize officer to make irrational demands upon defendant]; § 1202.8 ["Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation"]; see also People v. O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359 ["The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation"]; cf. People v. Leon (2010) 181 Cal.App.4th 943, 954 [approving modified gang condition with exception for "prior permission of your probation officer"].) Where defendant has a legitimate reason for being on or within 50 feet of a particular school campus, he can request permission of his probation officer to be there. C. Restitution Fines and Drug Program Fee
1. Restitution Fines
The trial court in this case set both the restitution fine (§ 1202.4, subd. (b)) and the probation revocation restitution fine (§ 1202.44) at $200 but the November 12, 2010 minute order contained in the clerk's transcript incorrectly states that the amount of both fines is $220. A discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) "The record of the oral pronouncement of the court controls over the clerk's minute order . . . . (See People v. Mesa (1975) 14 Cal.3d 466, 471 . . . ; see also People v. Mitchell (2001) 26 Cal.4th 181, 185 . . . .)" (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct the trial court to modify the minute order to correctly reflect the restitution fine and the probation revocation restitution fine actually imposed by the court.
"In every case where a person is convicted of a crime," the court generally must impose a restitution fine of not "less than two hundred dollars ($200)." (§ 1202.4, subd. (b).) "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." (§ 1202.44.)
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2. Drug Program Fee
A drug program fee is mandatory for specified controlled substance offenses unless the court determines that "the person does not have the ability to pay." (Health & Saf. Code, § 11372.7, subds. (a) and (b).) Health and Safety Code section 11372.7 pertains to "each person who is convicted of a violation of this chapter," that is Chapter 6 of Division 10 of the Health and Safety Code. Health and Safety Code section 11550, defendant's only drug offense, is found in an entirely different chapter of Division 10 of the Health and Safety Code and, consequently, he is not subject to a "drug program fee." The court did not impose a drug program fee when it granted probation.
The minute order incorrectly requires defendant to pay a drug program fee of $150. The order must be corrected since it is the oral pronouncement of judgment that controls. (See People v. Mitchell, supra, 26 Cal.4th at p. 185; People v. Mesa, supra, 14 Cal.3d at p. 471.)
DISPOSITION
The probation condition restricting defendant's proximity to school campuses is modified as follows: "You shall not be on or within 50 feet of any school campus during school hours unless you are enrolled or have prior permission of the school administrator or probation." As modified, the judgment is affirmed. The trial court is directed to (1) amend the November 12, 2010 minute order to correctly reflect its imposition of a restitution fine of $200 (§ 1202.4, subd. (b)), a probation revocation restitution fine of $200 (§ 1202.44), and no drug program fee, (2) amend the attached "Gang Orders" to reflect this court's modification of the probation condition, and (3) forward a copy to the probation authorities.
ELIA, J. WE CONCUR:
RUSHING, P. J.
PREMO, J.