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The People v. Jose Cajucom

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE CAJUCOM, DEFENDANT AND APPELLANT.

(Super. Ct. No. 08F10310)

The opinion of the court was delivered by: Raye, P. J.

P. v. Cajucom

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Jose Cajucom of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and illegal possession of a vehicle identification number (Veh. Code, § 10752, subd. (a)). The jury acquitted defendant of vehicle theft. (Veh. Code, § 10851, subd. (a).)

Granted probation, defendant appeals. He contends (1) the trial court imposed an unauthorized sentence in ordering him to pay the monthly costs of probation supervision and the presentence report as conditions of probation, (2) the court imposed an unauthorized fee, that is, the $60 criminal conviction assessment pursuant to Government Code section 70373, subdivision (a)(1) which was operative after he was convicted, and (3) he is entitled to additional conduct credit. Subsequent to defendant's appeal, the trial court awarded the additional credit defendant sought. We agree that the written probation order requires modification to clarify that the probation costs and report were ordered as a separate order and not as conditions of probation. We reject defendant's remaining contention and will affirm.

In view of defendant's contentions, a recitation of the underlying facts of the offenses is not required. The trial court orally imposed conditions of probation as listed in the probation report. The trial court then additionally ordered defendant to pay the $46 monthly cost of probation supervision and $702 for the presentence report. We interpret the record contrary to defendant's claim; the trial court did not impose the costs of probation supervision and the report as conditions of probation but instead as a separate order and properly so. (People v. Flores (2008) 169 Cal.App.4th 568, 578; People v. Hall (2002) 103 Cal.App.4th 889, 892; People v. Hart (1998) 65 Cal.App.4th 902, 907.) However, to the extent that the written order of probation may be interpreted as requiring payment of the monthly costs and report as conditions of probation, the written order of probation must be modified to clarify that the costs of probation supervision and the presentence report are a separate order entered at judgment.

We reject defendant's claim that the imposition of the $60 criminal conviction assessment violates Penal Code section 3. (People v. Castillo (2010) 182 Cal.App.4th 1410; People v. Fleury (2010) 182 Cal.App.4th 1486.) Defendant recognizes Castillo and Fleury but claims Castillo has no relevance because he is not arguing that the retroactive application of said section is an ex post facto application of the law and that Fleury is "almost identical to Castillo." We are not persuaded. Castillo clearly holds the statute "'is imposed on every conviction'" though the criminal conduct occurred before the statute's effective date. (182 Cal.App.4th at pp. 1413-1414, quoting Pen. Code, § 70373, subd. (a)(1).)

Defendant also contends that he was entitled to additional conduct credit pursuant to the amendment of Penal Code section 4019, which went into effect on January 25, 2010. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) The People disagree. While the appeal was pending, the trial court, by order dated July 1, 2010, awarded the additional credit that defendant sought. We find no error.

We conclude the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, former § 4019, subds. (b), (c) [as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50], § 2933 [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Defendant's offenses occurred in 2008 and he was granted probation on August 25, 2009. Consequently, defendant, having served nine actual days, was properly awarded eight days of conduct credit by the trial court for a total of 17 days of presentence custody credit.

DISPOSITION

The trial court is directed to prepare a corrected order of probation to clarify that the $46 monthly cost of probation supervision and the $702 for the presentence report were separately ordered and are not conditions of probation. The judgment is affirmed.

We concur: ROBIE, J. BUTZ, J.

20110223

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