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The People v. Micah David Bigelow

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Plumas


April 8, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICAH DAVID BIGELOW, DEFENDANT AND APPELLANT.

Super. Ct. No. F09-01294

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Micah David Bigelow pleaded guilty to possession of an assault weapon. (Pen. Code, § 12280, subd. (b).)*fn1 He was granted probation with various conditions and was ordered to pay numerous fines and fees.

Defendant appeals, claiming the trial court erred by imposing a number of fees as conditions of probation rather than as an order entered at judgment. Agreeing that clarification of the court's order is required, we shall order a modification of the order.

PROCEDURAL BACKGROUND*fn2

Defendant pleaded guilty to possessing an assault weapon. At his sentencing, the trial court announced that it was suspending imposition of sentence and admitting defendant to three years of supervised probation "on the following terms and conditions." After reciting several conditions of probation, the court stated: "There's a $150 booking fee, a $487 report preparation fee, a $25-a-month supervision fee, a $220 restitution fine, a similar amount that will be stayed pending successful completion of probation, a $30 court security fee, and a $30 immediate court needs . . . assessment fee." Defendant informed the court he would not be able to pay the fines and fees that day, after which the court imposed a $35 collection charge and ordered defendant to go to the treasurer's office to arrange to make payments. The court then ordered defendant not to use or possess any narcotics.

The trial court's written order was contained on a form entitled "Order of Judgment and Probation," which had preprinted language stating that the subject defendant was being admitted to probation "under the following terms and conditions," followed by a numbered list of "standard" probationary terms and conditions with boxes that could be checked. One of the "disciplinary" terms and conditions of probation checked on defendant's order was that he was to pay a $35 collection charge and make payments of $50 per month. Toward the bottom of the form below the signature line, in a section entitled "Fees," the restitution fine and all other fees imposed in defendant's matter were noted.

DISCUSSION

Defendant argues that, with the exception of the restitution fine, the trial court erred by imposing various fees as a condition of probation. We agree that the trial court's order requires clarification.

This court has held that an order to pay the costs of probation pursuant to section 1203.1b may not be made a condition of probation because such costs "are collateral and the statute itself provides for enforcement of the order by civil collection." (People v. Hart (1998) 65 Cal.App.4th 902, 907.) The fees for preparation of a probation report and for probation supervision imposed in defendant's matter fall expressly under the provisions of section 1203.1b, and the payment thereof may not be made a condition of probation.

The same is the case for the court security fee (Pen. Code, § 1465.8) and the immediate court needs assessment fee (Gov. Code, § 70373). Both are non-punitive in nature (People v. Alford (2007) 42 Cal.4th 749, 756 [Pen. Code, § 1465.8]; People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1414 [Gov. Code, § 70373]) and, like the costs of probation, are "collateral to [defendant's] crimes and punishment" (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402 [Pen. Code, § 1465.8]). As such, they may not be made a condition of probation.

On the other hand, any booking fee ordered by the trial court is statutorily required to be imposed as a condition of probation. (Gov. Code, § 29550, subd. (d)(2).)

The question remains whether the trial court ordered the fees at issue as a condition of probation. The court orally imposed the fees at the same time it pronounced the amount of the restitution fine, which is a mandatory condition of probation (§ 1202.4, subd. (m)), and while setting forth other terms and conditions of probation. Then again, the section of the written probation order where the fees are listed is below the trial judge's signature and is separated from the enumerated terms and conditions of probation. However, the $220 restitution fine is noted in this bottom section of the form, even though the form contains an enumerated space for noting the amount of any fine imposed as a condition of probation. That the court's oral order grouped the restitution fine together with the other fees suggests that either all of these were made conditions of probation or none of them were. In light of this ambiguity, we decline the People's invitation to deem the issue forfeited and will order a modification to clarify the trial court's order.

DISPOSITION

The probation order is modified to reflect that payment of the restitution fine and the booking fee are conditions of defendant's probation. The order for defendant to pay a report preparation fee, a monthly supervision fee, a court security fee, a collection charge, and an immediate court needs assessment fee is affirmed; however, payment of these fees is not a condition of defendant's probation. The judgment is otherwise affirmed.

We concur: RAYE, P.J. MURRAY ,J.


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