People v. Townsend CA2/5

Filed 11/16/15 P. v. Townsend CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B261014

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA401715) v.

LOREN ODELL TOWNSEND,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Reversed and remanded with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and Respondent. _____________________________

Defendant and appellant Loren Odell Townsend entered a plea of no contest to possession of a concealed weapon in a vehicle. (Pen. Code, § 25400, subd. (a)(1).)1 Pursuant to a plea agreement, the prosecution struck the allegation that he had suffered a prior serious or violent felony conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The trial court suspended imposition of sentence and placed defendant on probation. Defendant contends that the minute order dated July 19, 2013, incorrectly states that the trial court ordered defendant to pay the costs of probation services pursuant to section 1203.1b when, in fact, the trial court made no such oral pronouncement. The Attorney General argues that the imposition of probation costs was a condition of probation that is now moot because probation has been terminated. Because we cannot determine if the issue is moot in all respects, and the order to pay costs of probation was not imposed by the trial court as a condition of probation, we remand with directions to strike the condition from the minute order. “‘[T]he Legislature enacted Penal Code section 1203.1b which permits the trial court to require a defendant to reimburse probation costs if the court determines, after hearing, that the defendant has the ability to pay all or a portion of such costs.’ (People v. Bennett (1987) 196 Cal.App.3d 1054, 1055-1056, italics omitted.)” (People v. Washington (2002) 100 Cal.App.4th 590, 595.) “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d); People v. Hart (1998) 65 Cal.App.4th 902, 906-907.) The costs are not conditions of probation. ([People v.] Hart, supra, [at] pp. 906-907.)” (Id. at pp. 592-593.) Nothing in the record suggests probation costs were contemplated or intended in this case. The probation report did not recommend that defendant be ordered to pay costs under section 1203.1b, and defendant did not waive his right to a hearing on his ability to pay. There was no mention of probation costs at the sentencing hearing and the trial