Fear Not Law Articles: P. v. Sumrall

P. v. Sumrall

Filed 2/25/08 P. v. Sumrall CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

GARY JAMES SUMRALL,

Defendant and Appellant.

H031467

(Santa Clara County

Super. Ct. No. CC515153)

Defendant Gary James Sumrall appeals from a judgment entered after he pleaded no contest to one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), one count battery on a cohabitant (Pen. Code, 242-243, subd. (e)), one count of battery on a specified person (Pen. Code, 242-243, subd. (b)), and admitted four prison priors. The trial court placed defendant on four years of formal probation. As one of the conditions of probation, the trial court imposed a $35 probation supervision fee. On appeal, defendant contends that the trial court erred in imposing the probation supervision fee as a condition of probation. The Attorney General agrees, and requests that we amend the judgment. We will remand for the appropriate modification of judgment.

Factual and Procedural Background

On Christmas Eve 2005, defendant fought with his girlfriend of 22 years, pushing, slapping and hitting her. She left the residence, and when she returned, appellant was holding a gun to his own head. She called 911. When officers arrived, defendant became combative and assaulted the police officers. After they arrested defendant, the officers located the gun under the cushion of defendants couch.

Defendant was charged with one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), One count battery on a cohabitant (Pen. Code, 242-243, subd. (e)), one count of battery on a specified person (Pen. Code 242-243, subd. (b)), and with having suffered four prison priors. After he entered a plea of not guilty, he moved to suppress evidence pursuant to Penal Code section 1538.5. The trial court denied the motion and the defendant subsequently entered a plea of no contest to all charges and admitted all the allegations. The trial court suspended execution of a six-year prison term and placed defendant on probation for four years. As a condition of probation, the court required, among other things, that appellant serve one year in jail and that he pay a $35 per month probation supervision fee pursuant to Penal Code section 1203.1b. This appeal ensued.

Discussion

On appeal, defendant contends that the trial court erred in imposing the Penal Code section 1203.1b supervision fee as a condition of probation. The Attorney General agrees, and requests that we modify judgment by removing this fee as a condition of probation and making a separate order for payment of the fee.

Although a trial court is statutorily authorized to make an order for the payment of costs of probation, such a cost cannot legally be imposed as a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 641-642.) Penal Code section 1203.1b, by its terms, provides for enforcement of such an order by civil collection, because the costs of probation are collateral. Therefore the proper remedy is to delete the order to pay costs of probation from the conditions of probation, [and make] it simply an order entered at judgment. (People v. Hart (1998) 65 Cal.App.4th 902, 907.)

Although the Attorney General asks that we amend the sentence and enter an order directing the payment of fees, the trial court is best situated to make such an order as it is charged with the civil enforcement of such an order. Therefore we will remand this matter to the trial court for the requested modifications and orders.

Disposition

The matter is remanded to the trial court to amend the judgment, deleting the payment of probation supervision fees as a condition of probation; and to enter a separate order pursuant to Penal Code section 1203.1b, directing the payment of such fees.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.

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Description	Defendant Gary James Sumrall appeals from a judgment entered after he pleaded no contest to one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), one count battery on a cohabitant (Pen. Code, 242-243, subd. (e)), one count of battery on a specified person (Pen. Code, 242-243, subd. (b)), and admitted four prison priors. The trial court placed defendant on four years of formal probation. As one of the conditions of probation, the trial court imposed a $35 probation supervision fee. On appeal, defendant contends that the trial court erred in imposing the probation supervision fee as a condition of probation. The Attorney General agrees, and requests that we amend the judgment. Court remand for the appropriate modification of judgment.
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