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The People v. Colby Levitz

May 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
COLBY LEVITZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F02663)

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

P. v. Levitz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Colby Levitz pled no contest to residential burglary and was placed on probation.

On appeal, he 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 he has the ability to pay (the booking and classification fees), (2) accurately reflect the oral pronouncement of judgment (which did not include the imposition of a monthly probation supervision fee, urinalysis fee or presentence report fee) and the court's award of custody and conduct credits, and (3) clarify that the court facilities fee is not a condition of probation. We agree and shall direct the trial court to modify its written order accordingly.

DISCUSSION

I. Fees Not Ordered by the Court

The minute order and order of probation states that defendant must pay three fees that the trial court did not mention in its oral rendition of judgment: a $25 urinalysis fee, a $46/month probation supervision fee, and a $702 presentence report fee.

Defendant contends these three fees should be stricken from the minute order. The People agree, as do we. The minute order and order of probation does not reflect the judgment pronounced orally by the trial court; to the extent it includes fees not ordered by the trial court, those fees are unauthorized and shall be ordered stricken. (People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

II. Jail Booking and Classification Fees

At the sentencing hearing, defendant reviewed the fines recommended in the probation report, and objected to the imposition of a jail booking fee and jail classification fee, on the grounds the probation report incorrectly identifies them as "mandatory." In fact, he argued, the imposition of these fines is not mandatory because their imposition is "subject to ability to pay," and cited People v. Pacheco (2010) 187 Cal.App.4th 1392.

Following argument, the trial court ordered defendant to "pay all mandatory fines" and said, "[a]ll other discretionary fines are waived." It clarified defendant is to pay three fines identified as "mandatory" in the probation report: a $270.17 main jail booking fee and $51.34 main jail classification fee, both imposed pursuant to Government Code section 29550.2, and a $30 court facilities fee, imposed pursuant to Government Code section 70373.

On appeal, defendant contends the trial court erred in imposing the Government Code section 29550.2 jail booking and classification fees on the same basis he urged below: these fees are not "mandatory," in that their imposition is contingent on a finding of a defendant's ability to ...


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