Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F01528
HULL, J.Defendant Pysey Bue pleaded no contest to the charge of unlawfully and knowingly bringing marijuana into a state prison in violation of Penal Code section 4573. The trial court suspended imposition of sentence, ordered defendant to serve 90 days in jail, and placed her on formal probation for three years. At sentencing, the court asked defendant and her counsel whether they had reviewed and understood the contents of the probation report, particularly pages five through seven; both indicated they had. The court then ordered defendant to pay a $200 restitution fine, saying there were “no further court costs.”
Nevertheless, the minute order, prepared by the court clerk, included the following fines and fees: a $20 court security fee (Pen. Code, § 1465.8), a probation revocation fine (Pen. Code, § 1202.44), a $263.85 main jail booking fee (Gov. Code, § 29550.2), and a $30 court facility fee (Gov. Code, § 70373).
Defendant appeals and, relying on People v. Zackery (2007) 147 Cal.App.4th 380 (Zackery), argues that the minute order prepared by the court clerk wrongly included additional fines and fees that were not pronounced in open court. The People argue that the trial court’s reference to pages five through seven of the probation report, which included the fines and fees listed in the minute order, was sufficient. Defendant has the better argument.
In Zackery, this court reversed a restitution fine and parole revocation fine that were added to the record without being pronounced in the defendant’s presence. (Zackery, supra, 147 Cal.App.4th at p. 388.) We noted the trial court could decline to impose the restitution fine if it found compelling reasons to do so. Thus, “[w]hen a restitution fine is imposed in the absence of the defendant, the defendant has no opportunity to address the propriety of imposing the fine or its amount.” (Id. at pp. 388-389.)
Unlike the fines imposed in Zackery, the statutes authorizing the court security fee (Pen. Code, § 1465.8) and the court facilities fee (Gov. Code, § 70373) direct that those fees “shall” be imposed. Thus, the reasoning in Zackery is inapposite.
The minute order also includes a $200 probation revocation fine under Penal Code section 1202.44. Given that the court did order defendant to pay a $200 restitution fine under Penal Code section 1202.4, this fee also was mandatory and the reasoning in Zackery is inapposite. (Pen. Code, § 1202.4)
The remaining main jail booking fee, however, is not mandatory. (Gov. Code, § 29550.2.) Accordingly, it was error for the clerk to include this fee outside the presence of the defendant. (See Zackery, supra, 147 Cal.App.4th at pp. 388-389.)
DISPOSITION
The main jail booking fee imposed pursuant to Government Code section 29550.2 shall be stricken from the May 13, 2009, minute order; the judgment is otherwise affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.