Filed 4/4/14 P. v. Solomon CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071063

         v.                                                                      (Super. Ct. No. 12F00088)

JEREMY LERON SOLOMON,

                   Defendant and Appellant.


         Defendant Jeremy Leron Solomon pled no contest to one count of possession of
cocaine for sale (Health & Saf. Code, § 11351) and was granted formal probation for a
period of five years. On appeal, defendant challenges the following italicized language
contained in the minute order and order of probation: “It is the further Order of the Court
that . . . you shall comply in all respects with any Special Conditions of Probation
contained in your Order of Probation or which may subsequently be ordered by the Court
or the Probation Officer.” (Italics added.) He argues the italicized language violates the
separation of powers doctrine because it “impermissibly empowers the probation officer
to exercise the judicial function of fashioning and imposing conditions of probation.”


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The Attorney General agrees the written probation order “should be modified to eliminate
the probation officer’s apparent authority to impose additional specific probation
conditions.” The Attorney General also notes the challenged order was not orally
pronounced by the trial court.
       We conclude the trial court did not order defendant to comply with future special
probation conditions that may be imposed by the probation officer. Inclusion of such an
order in the written probation order was error. We therefore affirm the judgment, but
direct the clerk of the superior court to correct this and other errors in the minute order
and order of probation.
                                      BACKGROUND
       We dispense with a recitation of the facts surrounding defendant’s crime as they
are not relevant to the issue raised on appeal.
       Following defendant’s plea of no contest, in accordance with the negotiated plea
agreement, the trial court granted defendant formal probation for a period of five years.
As a condition of probation, defendant was ordered to serve 180 days in the county jail.
The trial court also imposed “all other conditions as set forth in the probation officer’s
report,” waived main jail booking and classification fees based on defendant’s inability to
pay, and suspended execution of various other fines and fees, stating: “So, it’s only if
[defendant] were to not successfully complete [probation] that those come back into play,
all right.”1 The trial court then orally imposed the following orders: “Defendant is
ordered to provide a DNA sample and fingerprints pursuant to Penal Code Section




1      These fines and fees (“drug program fee in the amount of $150.00 pursuant to
Section 11372.7 of the Health and Safety Code, plus $130.00 penalties and assessments
as prescribed by law”) were erroneously listed in the report under the heading, “Specific
Conditions of Probation” (see People v. Benner (2010) 185 Cal.App.4th 791, 797 [“trial
court erred by conditioning appellant’s probation on the payment of certain fees and
costs”]), and then listed again under the appropriate heading, “Fees and Fines.”

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296(a). [¶] He is prohibited from owning or possessing a firearm or ammunition for the
rest of his life. [¶] He’s ordered to register as a convicted narcotics offender with the
sheriff or police department where he is to reside. [¶] He will be ordered to report to the
Probation Department within 48 hours of his release from custody to begin the
probationary process.”
       We decline to recite each probation condition set forth in the probation officer’s
report. For our purposes, it will suffice to state that nowhere in the report is there an
order for defendant to comply with future special probation conditions that may be
imposed by the probation officer. Nevertheless, the minute order and order of probation
contains the following: “It is the further Order of the Court that . . . you shall comply in
all respects with any Special Conditions of Probation contained in your Order of
Probation or which may subsequently be ordered by the Court or the Probation Officer.”
(Italics added.) The written probation order also directs defendant to pay the various
fines and fees, execution of which was orally suspended by the trial court, without any
notation such execution was suspended. Finally, the following specific condition of
probation contained in the probation officer’s report did not make its way into the minute
order and order of probation: “Defendant register as a convicted drug offender, pursuant
to Section 11590 of the Health and Safety Code, in any city or county in which the
defendant resides.”
                                       DISCUSSION
       The parties agree the minute order and order of probation must be corrected to
delete reference to the probation officer’s purported ability to impose subsequent specific
probation conditions. We concur.
       “The powers of state government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of the others except as
permitted by this Constitution.” (Cal. Const., art. III, § 3.)



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       Penal Code2 section 1203.1 provides the trial court with broad discretion to
impose “reasonable conditions [of probation], as it may determine are fitting and proper
to the end that justice may be done, that amends may be made to society for the breach of
the law, for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.” (§ 1203.1, subd.
(j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) “[S]ection 1202.8,
subdivision (a) provides, ‘Persons placed on probation . . . shall be under the supervision
of the county probation officer who shall determine both the level and type of supervision
consistent with the court-ordered conditions of probation.’ Section 1203, subdivision (a)
provides in part, ‘ “probation” means the suspension of the imposition or execution of a
sentence and the order of conditional and revocable release in the community under the
supervision of a probation officer.’ Thus, by statute, the [trial] court sets conditions of
probation and the probation officer supervises compliance with the conditions.” (People
v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)
       From the foregoing, it follows that, while probation officers “have wide discretion
to enforce court-ordered conditions,” they may not impose their own conditions of
probation. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; People v. O’Neil (2008)
165 Cal.App.4th 1351, 1358.) Accordingly, had the trial court ordered defendant to
comply with future special probation conditions that may be imposed by the probation
officer, we would have to modify the judgment to strike the order as unauthorized.
However, as we explain below, because the trial court imposed no such order, we shall
affirm the judgment and order the clerk of the superior court to correct the minute order
and order of probation to remove reference to the probation officer’s purported ability to
impose probation conditions.




2      Undesignated statutory references are to the Penal Code.

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       The general rule is that where the oral pronouncement conflicts with the clerk’s
minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381,
384, fn. 2.) This is particularly true where the trial court imposes judgment and sentence
in a felony case since, with certain exceptions, “ ‘judgment and sentence in felony cases
may be imposed only in the presence of the accused.’ ” (People v. Zackery (2007) 147
Cal.App.4th 380, 386-387, quoting In re Levi (1952) 39 Cal.2d 41, 45; see also § 1193,
subd. (a).) However, “[p]robation is neither ‘punishment’ (see § 15) nor a criminal
‘judgment’ (see § 1445). Instead, courts deem probation an act of clemency in lieu of
punishment.” (People v. Howard (1997) 16 Cal.4th 1081, 1092.) “[A] grant of probation
is not part of the judgment that creates vested rights; the court has the authority to revoke,
modify or change its order.” (People v. Thrash (1978) 80 Cal.App.3d 898, 900-901.)
“The fact a person is granted probation, rather than a pardon, gives rise to the implication
there are conditions. These conditions need not be spelled out in great detail in court as
long as the defendant knows what they are; to require recital in court is unnecessary in
view of the fact the probation conditions are spelled out in detail on the probation order
and the probationer has a probation officer who can explain to him [or her] the contents
of the order.” (Id. at pp. 901-902, italics added.)
       Here, during the oral pronouncement, the trial court did not order defendant to
comply with future special probation conditions that may be imposed by the probation
officer. Nor does the probation officer’s report recommend such an order be issued by
the trial court. Inclusion of this unauthorized order in the minute order and order of
probation, presumably prepared after the terms and conditions of probation were
announced at the sentencing hearing, could not possibly have been within defendant’s
contemplation. In these circumstances, we conclude the general rule that the oral
pronouncement prevails over the clerk’s minute order should be followed. (See People v.
Farell, supra, 28 Cal.4th at p. 384, fn. 2.) We therefore direct the clerk of the superior
court to correct the minute order and order of probation to delete the words “or the

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Probation Officer” from the following order contained therein: “It is the further Order of
the Court that . . . you shall comply in all respects with any Special Conditions of
Probation contained in your Order of Probation or which may subsequently be ordered by
the Court or the Probation Officer.”
       There are two additional errors in the minute order and order of probation that
must be corrected. First, after setting forth the order to pay the “drug program fee in the
amount of $150.00 pursuant to Section 11372.7 of the Health and Safety Code, plus
$130.00 penalties and assessments as prescribed by law,” correctly noting this to be “a
court ordered fee” and “not a condition of probation,” and properly itemizing the
breakdown of the $130 in penalties and assessments with their statutory bases, the clerk
must indicate in the minute order and order of probation that the execution of these fines
and fees is suspended pending successful completion of probation. Second, the clerk
must include the following specific condition of probation, which was imposed by the
trial court by reference to the probation report during the oral pronouncement, in the
minute order and order of probation: “Defendant register as a convicted drug offender,
pursuant to Section 11590 of the Health and Safety Code, in any city or county in which
the defendant resides.”
                                       DISPOSITION
       The judgment (order granting probation) is affirmed. The clerk of the superior
court is directed to correct the minute order and order of probation to: (1) delete the
words “or the Probation Officer” from the following order contained therein: “you shall
comply in all respects with any Special Conditions of Probation contained in your Order
of Probation or which may subsequently be ordered by the Court or the Probation
Officer”; (2) indicate the trial court suspended execution of the following fines and fees:
“drug program fee in the amount of $150.00 pursuant to Section 11372.7 of the Health
and Safety Code, plus $130.00 penalties and assessments as prescribed by law”; and
(3) include the following specific condition of probation: “Defendant register as a

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convicted drug offender, pursuant to Section 11590 of the Health and Safety Code, in any
city or county in which the defendant resides.”



                                                     HOCH        , J.



We concur:



      RAYE        , P. J.



      ROBIE       , J.




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