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The People v. Jordan James Kirby

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


January 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JORDAN JAMES KIRBY, DEFENDANT AND APPELLANT.

(Super. Ct. No. CM033086)

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

P. v. Kirby

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jordan James Kirby pleaded no contest to residential burglary and was granted three years' probation, subject to certain terms and conditions, including payment of a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373).

On appeal, defendant contends the trial court erred in imposing these two fees as conditions of probation. The People concede the error.

We agree that the fees could not be imposed as conditions of probation but are properly imposed as a separate order. In People v. Pacheco (2010) 187 Cal.App.4th 1392, the court held it was error to impose a court security fee (Pen. Code, § 1465.8) as a condition of probation. The court in Pacheco determined that the court security fee imposed as a "condition of probation was unauthorized because like probation costs, this fee is collateral to [the defendant's] crimes and punishment and as such, its payment may not be made a condition of probation. [Citations.] Certain fines such as those relating to restitution, for example, may by statute be imposed as conditions of probation, but the court security fee is not one of them. [Citations.] One reason for the distinction between fines that may be imposed as probation conditions and those that may not is that probation 'should be oriented towards rehabilitation of the defendant and not toward the financing of the machinery of criminal justice.' [Citation.] An equally compelling reason for the distinction is that a defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees. [Citation.] The non-punitive purpose of the court security fee squarely places it among those fines and fees that are collateral to the crime and the consequent punishment for its commission." (Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403.) The court in Pacheco modified the order of probation to delete the fee as a condition of probation, but affirmed the fee as an order separate and apart from the conditions of probation. (Id. at pp. 1402-1404.)

The foregoing analysis also applies to the court facilities assessment. (Gov. Code, § 70373; People v. Kim (2011) 193 Cal.App.4th 836, 843.)

DISPOSITION

The judgment is modified to provide that the $40 court security fee and the $30 court facilities assessment are deleted as conditions of probation, but those fees are imposed as separate orders. As modified, the judgment is affirmed.

We concur: BUTZ , J. MURRAY , J.

20120124

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