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People v. Starkey

California Court of Appeals, Third District, San Joaquin
Jul 31, 2008
No. C056859 (Cal. Ct. App. Jul. 31, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARCUS C. STARKEY, Defendant and Appellant. C056859 California Court of Appeal, Third District, San Joaquin July 31, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SF104642C

SIMS, J.

After defendant Marcus C. Starkey pled no contest to receiving stolen property, the court suspended imposition of sentence and placed defendant on five years’ formal probation. At sentencing, the court indicated defendant would be required to pay, as a condition of probation, “the reasonable cost of probation.” Thereafter, it found defendant had an ability to pay $1,320 for probation supervision costs, and entered an order that defendant pay probation supervision costs in that amount (Pen. Code, § 1203.1b).

Defendant contends on appeal the trial court erred in imposing probation supervision costs as a condition of probation, citing People v. Bradus (2007) 149 Cal.App.4th 636 (Bradus). The Court of Appeal in Bradus held that, “[a]lthough 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 [Penal Code 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.]” (Id. at pp. 641-642, quoting People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)

The People concede that the trial court may order defendant to pay probation supervision costs, just not as a condition of probation. (See Bradus, supra, 194 Cal.App.4th at p. 642; see also In re Elizabeth S. (1982) 138 Cal.App.3d 450, 455.)

We agree that the court erred. Although the written minute order listing probation conditions makes no mention of probation supervision costs, the court’s oral pronouncement from the bench clearly establishes it as a condition of probation. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncement of a sentence is controlling over the written minute order or abstract of judgment].)

An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action. (People v. Hart, supra, 65 Cal.App.4th at p. 907.) The proper remedy for the trial court’s mistaken imposition of a probation supervision fee as a condition of probation is for this court to modify the conditions of probation to delete the fee, and simply reaffirm the court’s order that the fee be paid. (See ibid.) We shall do so.

DISPOSITION

The conditions of probation are modified to delete the requirement to pay the costs of probation supervision; however, the order that defendant pay such costs is affirmed. As modified, the probation order (judgment) is affirmed.

We concur, SCOTLAND, P.J., ROBIE, J.


Summaries of

People v. Starkey

California Court of Appeals, Third District, San Joaquin
Jul 31, 2008
No. C056859 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Starkey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARCUS C. STARKEY, Defendant and…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Jul 31, 2008

Citations

No. C056859 (Cal. Ct. App. Jul. 31, 2008)