P. v. Montoya
Filed 9/30/08 P. v. Montoya CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. PEDRO CANCHOLA MONTOYA, Defendant and Appellant. | G039078 (Super. Ct. No. 05WF3530) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed as modified.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Pedro Canchola Montoya was convicted of transportation for sale of a controlled substance. (Health & Saf. Code, 11379, subd. (a).) He appeals from a judgment that placed him on formal probation for three years subject to various terms and conditions, one being that he pay the costs of probation. Montoya argues this was not part of the oral pronouncement of sentence and must be stricken from the judgment. We agree, modify the judgment accordingly, and affirm as modified.
FACTS
Montoya was sentenced on June 8, 2007. A probation report filed the prior day recommended, among other things, the court determine Montoya had the ability to pay the costs of probation services of $136.78 per month. Prior to imposing sentence, the trial judge said he had read the probation report. He placed Montoya on formal probation for three years, ordered him to serve 270 days in the county jail, and directed the payment of various fines, fees, and assessments without including or mentioning the costs of probation. Later that day, a minute order was entered that stated Montoya was placed on probation on the following terms and conditions, one of which was [p]ay the costs of probation based on the ability to pay as directed by the Probation Officer.
DISCUSSION
Judgment is imposed when orally pronounced by the trial court. The subsequent entry of a written judgment in the minutes of the court is a clerical matter, and the oral sentence governs if the two differ. (People v. Mesa (1975) 14 Cal.3d 466, 471-472.) As one court put it, [w]here there is a discrepancy between the oral pronouncement of judgment and the minute order . . . the oral pronouncement controls. [Citations.] (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
Where the minutes do not accurately reflect what transpired at sentencing, they must be corrected to strike any terms or conditions that are not part of the sentence. (People v. Zackery, supra, 147 Cal.App.4th at p. 386.) So we must order the minutes be corrected by striking the order that Montoya pay the costs of probation as a condition of probation.
The People argue Montoya waived any objection to costs of probation when he failed to object to that recommendation in the probation report. We disagree. A defendant is not required to object to recommendations in a probation report that are not adopted as part of his sentence. Failure to challenge a probation condition that is imposed at sentencing waives the argument on appeal (People v. Welch (1993) 5 Cal.4th 228, 237), but no case has been brought to our attention where this rule was extended to a condition omitted at sentencing.
Those cases that are cited by the People are distinguishable. In People v. Welch, supra, 5 Cal.4th 228, the trial court announced it had read the probation report and was inclined to follow the recommended disposition from A to Z. (Id. at p. 232.) Having raised no objection at sentencing, the defendant was held to have waived an argument that one of the probation recommendations should not have been followed. Likewise, in People v. Valtakis (2003) 105 Cal.App.4th 1066, the defendant remained silent when the trial judge ordered him to pay a probation service fee. (Id. at pp. 1069-1070.) The court held he could not dispute the fee on appeal. Here, the trial court did not adopt the probation reports recommendation that Montoya be required to pay costs of probation, so he had no reason to object to the report. Montoyas failure to object to the probation report did not waive the argument now presented.
The People contend it is permissible to order payment of costs of probation so long as that order is not made a condition of the disposition, and they suggest the record can be so read in this case. The legal point is sound (Pen. Code, 1203.1b; cf. People v. Hart (1998) 65 Cal.App.4th 902, 906), but the factual one founders.
There simply is no room to argue costs were ordered as one of the terms of Montoyas probation, but not as a condition of the disposition. The minute order states probation is imposed on the following terms and conditions, [emphasis added]
one of which is [p]ay the costs of probation. There is nothing ambiguous about the order, and no stretch of the imagination can read out of it the conditional nature of the imposition of probation costs. The order to pay probation costs must be stricken.
DISPOSITION
Since the sentence pronounced made no mention of paying costs of probation, it was impermissible to order payment of this item in the written judgment. The judgment appealed from is modified to strike payment of costs of probation as a term or condition of probation and, as modified, the judgment is affirmed.
The trial court is directed to prepare amended minutes of the sentencing hearing on June 8, 2007, that delete payment of the costs of probation as a term or condition of probation.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
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