Probation condition requiring defendant to obtain permission before changing his residence or leaving California was improper. Soto entered a no contest plea to driving with a blood alcohol content of .08% (Veh. Code, § 23152, subd. (b)) and driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). He was granted probation. On appeal, he challenged a probation condition requiring him to obtain permission before changing his residence from Monterey County or leaving the state of California as impinging on his constitutional right to travel. Held: Probation term stricken. Under People v. Lent (1975) 15 Cal.3d 481, a probation condition is invalid if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. At issue in this case is the third Lent prong. In People v. Olguin (2008) 45 Ca.4th 374, the court upheld a probation term requiring the defendant to notify the probation officer of any pets at his residence, as enabling the probation officer to effectively supervise a defendant. In this case, however, Soto must obtain approval, not just give notice, to change his residence or leave the state. The record does not support this condition as being reasonably related to defendant’s criminality.
The Government Code section 76000 fine should be reduced. Government Code section 76000, subdivision (a)(1) provides for a penalty of $7 for every $10, or part of $10, upon every fine or penalty imposed by the court for criminal offenses. Here, Soto was ordered to pay a $390 fine under Vehicle Code section 23550, subdivision (a); 70% of this is $273. Soto claimed that Government Code section 76000, subdivision (e) rather than subdivision (a)(1) applied; this requires the reduction in the $7 penalty by the additional penalty amount assessed by the county for the courthouse construction fund. (See Gov. Code, § 76100.) Section 76000, subdivision (e) also states that the amount to be charged in Monterey County is $5. The Attorney General attempted to show that Monterey County had not established a courthouse construction fund, but the record here was unclear. In the interest of judicial economy for this case only, and because the amount at issue was de minimis, the penalty was reduced to $195. The court noted “that in future proceedings the trial court should make the appropriate, underlying factual findings when imposing a penalty under Government Code section 76000.”
The administrative fee under Penal Code section 1463.07 was erroneous. Section 1463.07 provides for a $25 administrative fee to a person who is arrested and released on his recognizance, upon conviction for any criminal offense related to the arrest. As Soto was never released on his own recognizance, this fee was stricken.
The installment account fee of $55 under Penal Code section 1205, subdivision (e), was unauthorized. Section 1205, subdivision (e) provides in pertinent part that a defendant shall pay for the processing of installment accounts where the defendant is ordered to pay a fine in installments. Here, the court imposed a $55 fee for this purpose. However, the court did not order Soto to make installment payments. Therefore, the fee is reduced to the maximum of $30 for non-installment accounts.
Restitution fine under Penal Code section 1202.4, subdivision (b) should be stayed when the offense to which it attaches was stayed under Penal Code section 654. The trial court imposed a $300 restitution fine under Penal Code section 1202.4, subdivision (b) in addition to a restitution fine of $150 for Soto’s conviction for driving on a suspended license (Veh. Code, § 14601.2, subd. (a)). Soto correctly argued that the Penal Code section 654 stay that applied to the driving on a suspended license count also applied to the restitution fine. The $150 restitution fine was striken.
Those fines, fees, and assessments that are punitive and are not collateral to the underlying offense may be ordered as conditions of probation. Soto challenged the court’s order of a number of fines and fees as conditions of probation (i.e., Pen. Code, § 1465.7, Gov. Code, §§ 70372, 76000, subd. (a)(1), 76000.5, 76104.6, subd. (a)(1), 76104.7). However, these fines are punitive and serve the purpose of rehabilitation and deterring the commission of future offenses. “The punitive nature of the challenged penalty assessments renders their payment a reasonable condition of probation.” However, the fee imposed under Penal Code section 1205, subdivision (e) (installment payment fee) is collateral to Soto’s offenses and punishment and may not be imposed as a probation term.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042115.PDF
