People v. Orozco

Opinion

GOMES, Acting P. J. A jury convicted Ulises Orozco of second degree murder (Pen. Code, § 187, subd. (a))1 and found true an allegation that he used a deadly and dangerous weapon in the commission of the murder (§ 12022, subd. (b)(1)). The court imposed a prison term of 15 years to life with a consecutive one-year term for the weapons use enhancement. On appeal, Orozco contends (1) defense counsel was ineffective when he elicited testimony from Orozco that he had witnessed stabbings in the past, and (2) the trial court’s order requiring him to pay a probation report fee pursuant to section 1203.1b was unauthorized. We affirm.

FACTS*

[191]DISCUSSION

I. Ineffective Assistance of Counsel*

II. Presentence Report Costs

After sentencing Orozco to prison, the trial court ordered him to pay a $296 probation report fee pursuant to section 1203.1b within 30 days of his release, on parole. Orozco contends the trial court erred in imposing tids fee in that section 1203.1b does not apply to him since he was sentenced to prison rather than granted probation. The Attorney General concedes this was error and agrees this order should be stricken.

We, however, reject both Orozco’s claim and the People’s concession. Before its 1993 amendment, section 1203.1b, subdivision (a) provided: “In any case in which a defendant is convicted of an offense and granted probation, the court, taking into account any amount which the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of probation; and of conducting the presentence investigation and preparing the presentence report made pursuant to Section 1203.” (Stats. 1989, ch. 1059, p. 3666, italics added.) Based on this language, this court held in People v. Montano (1992) 6 Cal.App.4th 118 [8 Cal.Rptr.2d 136] that the statute did not apply to a defendant who was sentenced to prison, as the statute only authorized the court to assess the cost of preparing the probation officer’s report against probationers. (Montano, supra, 6 Cal.App.4th at p. 123.)