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The People v. Toni Marie Halle

August 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONI MARIE HALLE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F02008)

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

P. v. Halle

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 Probation was revoked and reinstated in an unrelated misdemeanor case (No. 09M11884, and another unrelated misdemeanor case (No. 08M00898) was dismissed.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 ...


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