IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 forfeits the contention on appeal. We agree.
Defendant reviewed the proposed conditions of probation prepared by the probation department, which included the Government Code section 29550.2 fees. She never objected to their inclusion in the proposed probation conditions. Her "contentions are [forfeited] because defendant failed to raise them at the time of sentencing. [Citations.]" (People v. Hodges (1999) 70 Cal.App.4th 1348, 1357.) Any claim that the court erred in failing to determine whether she had the ability to pay the fees is likewise forfeited. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
There is an error in the minute order. The trial court awarded 83 days' presentence custody credit and 82 days' conduct credit. The minute order states defendant shall receive 83 days' "credit for time served."*fn1 We will direct the trial court to correct this clerical error to accurately reflect the court's oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Since we are remanding the case to the trial court, we shall point out its error regarding the form of imposition of fines and fees. A directive to impose all "mandatory" and waive all "discretionary" fines or fees is insufficient. It is not always clear whether a fine or fee is mandatory or discretionary; had the oral pronouncement specified the fines and fees to be imposed, there would have been no confusion over whether the trial court intended to impose the Government Code section 29550.2 fees. In addition, it might have led the court or the parties to realize that these fees were predicated upon a finding of defendant's ability to pay them, and allow the court to hold the statutorily mandated hearing on defendant's ability to pay.
The judgment is affirmed. The trial court is directed to correct the minute order and order of probation filed May 28, 2010, to reflect an award of 82 days' conduct credit in addition to the 83 days' custody credit and to forward the appropriate documents to defendant and to the probation department.
BLEASE , Acting P.J.