P. v. Bozsik
Filed 5/16/08 P. v. Bozsik CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES BOZSIK, Defendant and Appellant. | F053072 (Super. Ct. No. CRF22828) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Michael Bozsik of felony vandalism (Pen. Code, 594, subd. (a)). The court suspended imposition of sentence; placed appellant on five years probation, with various terms and conditions; and ordered that appellant pay to the County of Tuolumne a criminal justice administration fee of $56, $30.25 per month for probation supervision services, and $566 for preparation of the probation officers presentence report (RPO).[1]
On appeal, appellant contends the court made the probation-cost orders as conditions of probation and therefore those orders were improper. We will affirm.
BACKGROUND
The probation officer, in the RPO, recommended that appellant be placed on five years probation and listed 13 recommended terms and conditions of probation. In a separate section of the RPO, labeled PROBATION FEES, the probation officer recommended imposition of the probation-cost orders.
At the sentencing hearing on June 4, 2007 (June 4), the court did not enumerate the conditions of probation or mention the probation-cost orders. Rather, the court stated: The court will impose all of the terms and conditions of probation recommended in the presentence report and as fully set forth in the order granting probation, with the exception of the recommended condition that appellants driving privilege be suspended for one year.
Also on June 4 the court signed a MINUTE ORDER and ORDER GRANTING PROBATION (probation/minute order). The probation/minute order is a printed form; it consists of a series of statements, most of which are preceded by a box which, if marked, indicates the statement is part of the order. On the second page of the probation/minute order, the court indicates, by a mark in the appropriate box, Imposition of sentence suspended and the defendant admitted to probation for 5 years. That statement is not numbered, but it is immediately followed by a sequentially numbered list of statements, with marks in the boxes by statements that correspond to conditions of probation recommended in the RPO.
Immediately thereafter, there appears an unnumbered paragraph, preceded by the heading PROBATION FEES, stating that appellant shall pay the monthly probation supervision costs ($30.25) and the cost of preparation of the RPO ($566), and a subparagraph stating that he shall pay the criminal justice administration fee of $56. There is no box preceding the PROBATION FEES section, indicating it is not one of the optional statements on the form that does not become part of the order unless checked by the court.
DISCUSSION
As the parties agree, although a defendant who is granted probation may be ordered to pay the costs of probation supervision and the preparation of probation reports, if he is financially able to do so (Pen. Code, 1203.1b, subds. (a), (b)), payment of such costs cannot be made a condition of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892; People v. Hart (1998) 65 Cal.App.4th 902, 907.) Appellant argues the court violated this rule.[2]
However, the major premise of appellants argument, i.e., that the probation-cost orders are conditions of probation, is false. Therefore appellants argument fails.
In the probation/minute order, the conditions of probation and the probation-cost orders are separate. The conditions of probation are numbered whereas the probation-cost orders are not, and appear under a separate heading. Similarly, the courts oral pronouncement of judgment referred to the RPO, which also set forth the proposed conditions of probation separately from the proposed probation-cost orders. The clear inference from both the written probation cost orders and the courts oral pronouncement of judgment is that the court ordered appellant to pay $30.25 per month for probation supervision services and $566 for preparation of RPO, but did not order appellant to make these payments as conditions of probation. Thus, there was no error.
DISPOSITION
The judgment is affirmed.
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*Before Levy, Acting P.J., Gomes, J., and Kane, J.
[1]We refer to the latter two monetary orders, collectively, as the probation-cost orders.
[2]Respondent argues appellants contention is waived because appellant failed to raise it below. We assume without deciding that appellants argument is cognizable on this appeal.
