IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TONI MARIE HALLE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F02008)
The opinion of the court was delivered by: Duarte , J.
P. v. Halle
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Toni Marie Halle pleaded no contest to transportation of methamphetamine pursuant to a plea agreement.
On appeal, she contends that the oral pronouncement of sentence is not properly reflected by the written minute order and order of probation. We agree and shall order modification.
FACTUAL AND PROCEDURAL HISTORY
The parties stipulated that in March 2010, defendant unlawfully transported 12.5 grams of methamphetamine, a usable quantity, for personal use while knowing of its presence and nature as a controlled substance. The People stipulated that the transportation was for personal use.
Defendant pleaded no contest to transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In exchange for the plea, a school proximity allegation (Health & Saf. Code, § 11353.6) and one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) were dismissed. Probation was revoked and reinstated in an unrelated misdemeanor case (No. 09M11884, and another unrelated misdemeanor case (No. 08M00898) was dismissed.
Defendant waived referral to probation and requested immediate judgment and sentence. She objected to "any fine or fee that is not mandatory, and any fine or fee that is subject to an ability to pay as [defendant] is indigent and has no ability to pay." In response, the court stated, "Ma'am, I never impose anything that is non-mandatory, and I will accept your inability to pay objection for the remaining conditions."
Imposition of sentence was suspended and defendant was placed on probation for five years on conditions including participation in a Proposition 36 alcohol and drug rehabilitation program and compliance "with all the specific conditions of probation as outlined in your probation condition list." In its oral pronouncement, the court ordered defendant to pay a $200 restitution fine (Pen. Code,*fn1 § 1202.4) and a $200 restitution fine suspended unless probation is revoked (§ 1202.44). The court added: "Any mandatory fines are imposed. Any discretionary fines are stricken." The court orally awarded defendant 26 days of custody credit and 26 days of conduct credit.
The clerk's minute order and order of probation set forth, in addition to the restitution fines, a $50 laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)) plus penalty assessments, two $5 DNA fees (Gov. Code, §§ 76104.6, 76104.7), a $25 court construction fee (Gov. Code, § 70372, subd. (a)), a $10 state surcharge (§ 1465.7), a $287.78 main jail booking fee (Gov. Code, § 29550.2), a $59.23 main jail classification fee (Gov. Code, § 29550.2), a $30 court facilities fee (Gov. Code, § 70373), a $46 per month probation supervision fee (§ 1203.1b), and a $25 urinalysis testing fee (§ 1210.1, subd. (a)). All fines and fees are couched as terms and conditions of probation.
On appeal, defendant contends the minute order and order of probation should be corrected to (1) omit all fines and fees that are dependent upon a discretionary determination that she has the ability to pay (the booking fee, classification fee, monthly probation supervision fee, and drug testing fee), (2) clarify that neither the court construction fee nor the court facilities fee is a condition of probation, and (3) reflect the oral award of custody and conduct credits. We agree and shall direct the trial court to modify its written orders accordingly.
Defendant first contends the written minute order and order of probation must be corrected to conform to the trial court's oral finding that she lacked the ability to pay discretionary fees and fines and the court's oral assurance that it would not impose any discretionary fines. Specifically, defendant claims the jail booking fee, jail classification fee, monthly probation supervision fee and monthly drug testing fee are discretionary, and must be stricken in light of the court's finding that she had no ability to pay and pronouncement that it would not impose non-mandatory fines.
Because defendant's objection included "any fine or fee," and the trial court assured her that it never imposed "anything" that was not mandatory, we construe the court's later references to "discretionary fines" as including the four fees to which defendant now objects. (Italics added.)
The People argue that the court "merely 'accepted' counsel's ability to pay objections with regard to the mandatory fees and fines" because "[a]bility to pay was to be subsequently determined after an evaluation and recommendation." This argument is completely unsupported by the record.
The People's argument overlooks many points in the record, including the court's ruling that "any discretionary fines are stricken." This ruling was "not conditioned on or subject to whatever determination the [Department of Revenue Recovery] might have made." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.) Rather, it was an outright refusal to impose (by use of the term "strike") any discretionary fines (and, impliedly, fees). Had the court merely "accepted" defendant's objection and deferred its ruling pending "an evaluation and recommendation," the court would have had no occasion to strike the discretionary fines.
The jail booking fee and the jail classification fee under Government Code section 29550.2 are discretionary, in that they require an express or implied finding of ability to pay. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1398.)
Similarly, the monthly probation supervision fee expressly requires a determination of ability to pay. (§ 1203.1b, subd. (a).)
Finally, the monthly drug testing fee impliedly requires a determination of ability to pay. Section 1210.1, subdivision (a) provides in relevant part: "In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program." (Emphasis added.) The cost of defendant's drug tests is one of the costs of "his or her  placement in a drug treatment program."
A trial court clerk is required to accurately record the sentence pronounced by the judge in a criminal proceeding. (People v. Zackery (2007) 147 Cal App.4th 380, 382.) In this case, the clerk incorrectly included in the order of probation the four discretionary fees noted above. We shall direct the trial court to correct the minute order and order of probation to conform to the court's oral ruling striking these four discretionary fees.
Defendant next contends, and the People concede, the trial court erred by imposing the court construction fee (Gov. Code, § 70372, subd. (a)) and the court facilities fee (Gov. Code, § 70373) as conditions of defendant's probation. We agree and accept the People's concession.
Court construction fees and court facilities fees are "collateral" to a defendant's crime and punishment, in that they are "not oriented toward a defendant's rehabilitation but toward raising revenue for court operations." (People v. Kim (2011) 193 Cal.App.4th 836, 842, citing People v. Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403.) Thus, the fees should be "separately imposed and not made a condition of probation." (Kim, supra, 193 Cal.App.4th at p. 842.)
The oral pronouncement of sentence did not specifically address the court construction and facilities fees. However, because the court's written minute order and order of probation describe payment of these fees as conditions of probation, we shall direct the trial court to correct those orders to reflect the separation of these court fees from the terms and conditions of probation.
Defendant contends the written minute order and order of probation should be corrected to reflect the trial court's oral award of 26 days of custody credit and 26 days of conduct credit. The People's only response is that the trial court's oral pronouncement of credits was correct. Because the written orders must be corrected in other respects, we shall direct the trial court to include the custody and conduct credits in the corrected minute order and order of probation.
The judgment is affirmed as modified. The trial court is directed to correct the minute order and order of probation to conform with oral pronouncement of sentence; that is, to strike the $287.78 jail booking fee, $59.23 jail classification fee, probation supervision fee of $46/month, and drug testing fee of $25/test, and to reflect 26 days of custody credit and 26 days of conduct credit. The court is further directed to correct the minute order and order of probation to reflect the court construction and facilities fees as separate from the order of probation, and to strike these fees from the terms and conditions of probation.
The trial court shall forward a certified copy of the corrected minute order and order of probation to any officer having custody of defendant.
We concur: BLEASE , Acting P. J. NICHOLSON , J.