P. v.King
Filed 5/19/08 P. v.King 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD RAYMOND KING, JR., Defendant and Appellant. | C055353 (Super. Ct. No. CRF043878) |
Defendant Clifford King, Jr., was convicted of receiving stolen property. He was placed on probation, on terms including that he serve 120 days in county jail, and was ordered to pay various fines and fees.
On appeal, defendant (1) challenges the orders that he pay up to $175 in public defender costs (Pen. Code, 987.8) and pay an undisclosed amount for preparation of a presentence investigation report and for probation supervision (Pen. Code, 1203.1b), and (2) contends the court erred in failing to specify the statutory bases for the components of the penalty assessments. Only the last contention has merit.
DISCUSSION
I
Citing People v. Bradus (2007) 149 Cal.App.4th 636 (hereafter Bradus), defendant contends that the trial court improperly imposed, as conditions of probation, the payment of fees to recoup public defender costs and fees related to probation.
The People argue that those fees were not imposed as conditions of probation, but rather as independent obligations and, therefore, they were proper and should not be stricken.
Bradus held that [a]lthough the trial court is statutorily authorized to make respective orders for the payment of appointed attorney fees and for the costs of probation, depending on a defendants ability to pay, such costs and fees cannot legally be imposed as conditions of probation. [Citations.] The costs of probation imposed for preparation of the probation report and of supervising probation may not be a condition of probation as the costs are collateral and [Penal Code section 1203.1b] itself provides for enforcement of the order by civil collection. [Citations.] Attorney fees are constitutionally proscribed as probation conditions because they would exact[] a penalty for the exercise of a constitutional right. Thus, the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendants grant of probation upon payment thereof. [Citation.] Orders for appointed attorney fees and for probation costs are merely entered at the time of judgment and sentencing and may be enforced as permitted in the relevant statutes. [Citation.] (Bradus, supra, 149 Cal.App.4th at pp. 641-642, fn. omitted, quoting People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)
On appeal, we presume that official duties have been regularly performed (Evid. Code, 664), and this presumption applies to the actions of trial judges. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 8-9 [If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done].)
Defendant has failed to show that the trial court imposed the challenged fees as conditions of probation. The document on which the fees appear, entitled Order Admitting Defendant to Probation, states: IT IS HEREBY ORDERED that . . . defendant be admitted to probation for a period of three (3) years from the date of this order, upon the following terms and conditions; a list of conditions follows, each marked with an X. They include payment of restitution and probation revocation fines, and defendants consent to warrantless searches and promise to cooperate with his probation officer.[1]
The fees that defendant challenges are not among the numbered items. They appear as separate, non-numbered paragraphs, each bearing its own descriptive heading. Thus, the record does not support defendants claim that they are conditions of probation.
Because the trial court was authorized to impose such fees, just not as conditions of probation (Bradus, supra, 149 Cal.App.4th at pp. 641-642), there was no error.
II
The trial court imposed penalty assessments as conditions of probation as follows: $500 as a fine plus $1,300 penalty assessment; plus a processing fee of $35. However, the court failed to specify the statutory bases for the components of the penalty assessments. This failure, defendant argues, was error. (Citing People v. High (2004) 119 Cal.App.4th 1192 (hereafter High).)
High requires a trial court to separately list, with the statutory basis, all fines, fees and penalties imposed. (Id. at p. 1201.) Although . . . a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections [and Rehabilitation] has no statutory obligation to collect a particular fee, . . . the fee must be included in the abstract of judgment. [Citation.] [A] fine . . . is part of the judgment which the abstract must digest or summarize. [Citations.] (Id. at p. 1200.)
The reasoning of High applies equally to an order of the court placing a defendant on probation which, like an abstract of judgment in a case where the defendant is not placed on probation, must be furnished to the officer whose duty it is to execute the probationary order or judgment . . . . (Pen. Code, 1213.) This is so because inclusion of all fines and fees in the order of probation may assist state and local agencies in their collection efforts. (High, supra, 119 Cal.App.4th at p. 1200.)
We disagree with the Peoples claim that defendant forfeited this issue by failing to raise it in the trial court. The penalty assessments provided in various statutes are mandatory. (Pen. Code, 1464, subd. (a), Gov. Code, 76000, subd. (a), 76104.6, 76104.7, 70372.) Without a specification of the statutory bases for the penalty assessments, it cannot be determined whether the court fulfilled its duty to impose these mandatory assessments. And, we reiterate, the specification requirement is for the benefit of state and local agencies.
Accordingly, we will remand with directions that the trial court state in the order of probation the statutory bases for the component parts of the penalty assessments.
DISPOSITION
The matter is remanded with directions to the trial court to articulate the statutory bases of all penalty assessments imposed
and amend the order of probation to include them. In all other respects, the judgment is affirmed.
SCOTLAND, P.J.
We concur:
BLEASE , J.
HULL, J.
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[1] The enumerated conditions appear to be a subset selected from a more extensive menu; they bear numbers 1-7, 10, 11, 16, 17, 19, 22, 24, and 36-39.
