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The People v. Devon Dawn Olson

February 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEVON DAWN OLSON, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F00383)

The opinion of the court was delivered by: Robi ,j.

P. v. Olson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On January 14, 2010, defendant Devon Dawn Olson entered a Rancho Cordova residence with the intent to commit a felony.

Defendant pled no contest to second degree burglary. Under a plea agreement, she was to receive a suspended 16-month sentence with placement in drug court. The plea was subsequently refashioned after it was determined she was ineligible for drug court. Defendant was placed on five years' formal probation, ordered to serve 365 days in jail, pay $2,275 in victim restitution, and pay all mandatory fines, while "All other discretionary fines are waived."

Defendant appeals, contending the probation order requires her to pay jail booking and classification fees, which are discretionary and were thus waived. We shall order corrections to the minute order and affirm.

DISCUSSION

I

Fines

In pronouncing judgment, the trial court stated, "You are ordered to pay all mandatory fines. [¶] All other discretionary fines are waived." The minute order and order of probation states that defendant is to pay, pursuant to Government Code section 29550.2, a jail booking fee of $270.17 and a jail classification fee of $51.34.

The record also contains a recommendation from the probation department filed on April 26, 2010, the same day the court pronounced sentence. It recommended defendant pay the $270.17 jail booking fee and the $51.34 jail classification fee. Two other fees, a $10 Penal Code section 1202.5 crime prevention program fee and a $30 Penal Code section 1465.8 court security surcharge, were also listed in the recommendation, but were crossed out with the handwritten word "waived" next to both of them. Before sentencing, defense counsel admitted receiving the recommendations and having reviewed them with defendant. Neither defendant nor counsel made any statement before the imposition of sentence.

Defendant asserts the minute order is contrary to the trial court's pronouncement of judgment, as the Government Code section 29550.2 jail booking and classification fees are predicated on an ability to pay and thus discretionary. Her contention that these fees are discretionary is correct, since they may only be imposed if the trial court finds defendant has the ability to pay. (Gov. Code, § 29550.2, subd. (a); People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1400.)

The People argue defendant knew the court included the jail booking and classification fees as part of the probation order, and her failure to object ...


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