Opinion
H035906
09-23-2011
THE PEOPLE, Plaintiff and Respondent, v. BOBBY GLEN McNUTT, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC933958)
Defendant Bobby Glen McNutt, Jr., was convicted after jury trial of misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)), and misdemeanor annoying or molesting a child under 18 (§ 647.6, subd. (a)(1)). The court suspended imposition of sentence and placed him on probation for three years with various terms and conditions, including that he pay a criminal justice administration fee pursuant to Government Code section 29550. The court separately ordered him to pay a presentence investigation fee not to exceed $450 and a probation supervision fee not to exceed $110 per month pursuant to section 1203.1b.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that his conviction for misdemeanor battery must be reversed because the trial court failed to instruct the jury sua sponte that implied consent is a defense to battery. He also contends that there is insufficient evidence to support the orders that he pay the presentence investigation fee, the probation supervision fee, and the criminal justice administration fee. For the reasons we state below, we will reverse the judgment and remand the matter with directions to determine, in accordance with the applicable statutes, defendant's ability to pay the presentence investigation fee, the probation supervision fee, and the criminal justice administration fee before reimposing them.
BACKGROUND
Defendant was charged by information with lewd conduct on a child under 14 (§ 288, subd. (a); count 1), and misdemeanor annoying or molesting a child under 18 (§ 647.6, subd. (a)(1); count 2).
The Prosecution's Case
On the afternoon of April 9, 2008, Michelle Purcell was staying with Theresa L. and her family, which included Theresa's six-year-old daughter M., when defendant came to Theresa's home to visit Purcell. M. was playing outside with her female cousins S. and C. Theresa let defendant into the house and the girls followed him inside. Purcell was sleeping on a couch in the garage. Theresa thought that Purcell got up when first Theresa and then the girls told Purcell that defendant was there to see her, but Purcell did not get up.
Theresa returned to her bedroom. While defendant waited in the living room for Purcell, he showed the girls some card tricks. M. then sat on the couch next to defendant. S. and C. ran back and forth between the kitchen and hallway, watching defendant and M. M. testified that defendant grabbed her and sat her on his lap. She did not want to be there and she tried to get off, but defendant held her. He lifted her shirt and made "fart sounds" with his mouth on her bare stomach above her belly button. C. testified that she saw defendant "blowing on" M.'s stomach while M.'s shirt was up, and that M. was laughing. M. testified that she did not give defendant permission to do this and, although it tickled, she was "really uncomfortable."
C. and S. both testified that M. was lying on the couch beside defendant when they saw defendant put his mouth on M.'s stomach, and that they never saw M. sitting on defendant's lap.
Defendant then kissed M. on the cheek near her mouth. He said that he wanted to make love with her but he was too old. M. testified that she felt "very, very uncomfortable." She did not say anything to defendant; she "just ran" into the bathroom.
When M. left the bathroom, she went into her mother's room. Theresa could tell that something was wrong because M. looked uncomfortable. M. told her mother that defendant had kissed her on the cheek next to her mouth. Theresa went out to the garage and told Purcell to get defendant out of her house, that she did not want him there. Purcell followed Theresa into the living room and had defendant leave.
Later in the evening, M. told S. and C. what defendant had said to her and they told her to report this to her mother. M. was afraid because she thought that she had done something wrong. The girls told Theresa that defendant had lifted M.'s shirt, and M. said that defendant had blown on her stomach and that he had told her that he wanted to make love to her. Theresa got defendant's identifying information from defendant's mother with Purcell's help and then called the police.
San Jose Police Detective Brian Alexander interviewed M. at the police department on July 2, 2008. A videotape of the interview was played for the jury. During the interview, M. said that "we had this girl staying with us, and then her friend came over, and then he was like, he was showing us tricks." "And then he, he was like um, he was blowing on my stomach, and then like, he said he want to make love to me -" "It felt weird." "He told me that he, that he, that he wanted to make love with me, and then he kissed me like right here."
After the interview, at Detective Alexander's request, Theresa made a "pretext" phone call to defendant. A recording of the call was played for the jury. During the call, defendant said that M. sat on his lap, and he told her that she could not sit there but she could sit on his knee. He said that he told her that "she was a very beautiful young lady," and that "I'd love to kiss her, but I can't" "[b]ecause I'm way too old for her." He said that he told her that if he kissed her she should call the police and that he tells "all the kids" that "[w]hen I think they're pretty, and I wanna kiss 'em." When Theresa asked him whether he had lifted M.'s shirt and blown "farts" or "bubbles" on her belly, defendant responded, "Not that I remember." When Theresa asked him whether he had kissed M. on her cheek close to her mouth, defendant responded, "I kissed her once on the forehead."
Detective Alexander interviewed defendant at the police department on August 27, 2008. During the interview, defendant said that M. climbed onto his lap and he moved her to his knee. He said that he told her that she was pretty. He said that he went to kiss her on the mouth, but changed his mind and kissed her on the forehead. He said that he told her that if anybody ever tried to kiss her she should call the police. When asked if he told M. that he wanted to make love with her but was too old, defendant responded that he did not recall saying that, but it was possible that he did say it. He said that he is not "attracted" to children and does not want to have sexual relations with them. He said that he blew bubbles on M.'s stomach while she was lying across his lap, and that it was possible that his beard brushed across the skin of her belly because her shirt was up slightly. He said that his mouth did not touch her belly. He said that if there was a problem, M.'s mother should have contacted him about it. Defendant did not say that Theresa had called him to talk about the incident until Detective Alexander brought up the subject.
Retired police officer and licensed private investigator Carl Lewis testified as an expert on child abuse accommodation syndrome. He did not know defendant, the facts of the case, or the specific charges. He testified that children are often ill equipped to deal with resisting sexual advances so they find a way to put up with it. They often delay reporting the abuse, and then they often report it "piecemeal."
The Defense Case
Purcell testified that defendant came to visit her at Theresa's house on April 9, 2008. M. came into the garage two times to wake her up, telling her that defendant was there, but Purcell had taken a Valium the night before so she did not get up right away. When she did get up, defendant was in the living room with M. and two other girls. She saw Theresa walk from her bedroom into the kitchen. Purcell spoke briefly to defendant, and then walked him to his car. When Purcell returned, Theresa told her that M. had reported that defendant had made a pass at her. Theresa said that defendant asked M. if he could make love to her. Purcell asked M. twice if that was true. M. did not respond either time, she just stared at her mother. When Theresa told M. to answer Purcell, M. said that defendant asked to make love to her. Theresa said that she was going to call the police.
Purcell testified that she has a 2000 felony conviction for welfare fraud.
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Purcell has talked to defendant to get an explanation from him about what happened. Defendant said that he kissed M. on the forehead, and Purcell had seen defendant kiss M. before on the forehead. Purcell had also seen defendant kiss other children in Purcell's family on the forehead. In the 20 years that Purcell has known defendant, she has never caught him in a lie, and he has a reputation for honesty. Purcell does not believe that Theresa has the character of an honest person, because she has known Theresa to lie repeatedly. In the four months that she knew M., she thought M. was constantly seeking attention.
Linda and Ronald Gary Sheeder, defendant's neighbors, have known him since August 1973. Defendant has been a good neighbor and he watches over the neighborhood. In their opinions, defendant does not have the reputation of being a child molester. He has always been nice to their children and grandchildren, and he has never been dishonest with their family.
Verdicts and Sentencing
On May 28, 2010, the jury found defendant guilty of misdemeanor battery (§§ 242, 243, subd. (a)), a lesser offense of lewd conduct on a child under 14 as charged in count 1, and guilty of annoying or molesting a child under 18 as charged in count 2 (§ 647.6, subd. (a)(1)). On July 23, 2010, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve a 120-day jail sentence, and that he pay a "Criminal Justice Administration fee to the City of Santa Clara . . . pursuant to Government Code Section 29550." In addition to the terms of probation, the court separately ordered that defendant pay "[a] pre-sentence investigation fee not to exceed $450, and a probation supervision fee not to exceed $110 per month."
DISCUSSION
Instruction on the Defense of Implied Consent
Background
The court instructed the jury pursuant to CALCRIM No. 960 as follows: "Battery in violation of Penal Code section 243(a) is second alternate Count 1. To prove that the defendant is guilty of this crime the People must prove that first the defendant willfully touched M[.] in a harmful or offensive manner, and second, the defendant did not act while reasonably disciplining a child. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. [¶] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through . . . his or her clothing is enough. The touching does not have to cause pain or injury of any kind."
Defense counsel argued to the jury that "[b]attery is a touching. That's it. If I touch a person and they don't want to be touched, that's a battery. But it's not as simple as that, because it has to be harmful and offensive. And that's what you have to determine. You have to determine when he kissed her on the cheek, did he do it in a manner to be harmful and offensive. Is that what we do when we kiss a child on the cheek? Is that what Mr. McNutt did in this case when he was kissing a child on the cheek? Was his intention to offend her when he kissed her on the forehead? Was [it] his intention when he touched her or blew on her belly? Was that offensive when she's laughing? You have to make that decision. [¶] In the testimony there was some information that was provided to you that Mr. McNutt told the officer she sat on my lap and I moved her. And I told her you don't sit on people's lap, you sit on the knee. You must decide if he was reasonably disciplining her as to that issue. Is it reasonable that if you're telling the child, you know, you shouldn't do that? Is that reasonable? That's for you to decide. So both - so the element has to have a fact connected to it."
The Parties' Contentions
Defendant contends that the trial court erred in failing to instruct the jury sua sponte that implied consent is a defense to battery. He argues that the trial court has a sua sponte duty to instruct on affirmative defenses, that there was sufficient evidence to support an instruction on the affirmative defense of implied consent (that is, C.'s testimony that M. was laughing when defendant blew on her stomach), and that the general rule that children may not consent to a sexual battery does not apply in this case. He argues that he was prejudiced by the failure to give such an instruction, so his conviction for misdemeanor battery must be reversed.
The Attorney General contends that the trial court did not have a sua sponte duty to instruct the jury that implied consent is a defense to battery. The Attorney General argues that consent is not a defense to battery except in limited circumstances not applicable here, that M. did not have the legal capacity to give consent, and that, regardless, there was not substantial evidence to support such a defense in this case.
Analysis
"In a criminal case, a trial court has a duty to instruct the jury on ' " ' "the general principles of law relevant to the issues raised by the evidence." ' " ' [Citation.] The 'general principles of law governing the case' are those principles connected with the evidence and which are necessary for the jury's understanding of the case. [Citations.] As to pertinent matters falling outside the definition of a 'general principle of law governing the case,' it is 'defendant's obligation to request any clarifying or amplifying instruction.' [Citation.]" (People v. Estrada (1995) 11 Cal.4th 568, 574.)
A trial court has a duty to instruct sua sponte on an affirmative defense "only if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendant's theory of the case. [Citations.]" (People v. Michaels (2002) 28 Cal.4th 486, 529.) "A jury instruction need not be given whenever any evidence is presented, no matter how weak. [Citation.] Rather, the accused must present 'evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men [and women] could have concluded that the particular facts underlying the instruction did exist. [Citation.] [¶] This does not require—or permit—the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist.' " (People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
" '[T]he trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. [Citation.] Thus, the court is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such instruction.' [Citations.]" (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) " '[I]f an instruction relates "particular facts to the elements of the offense charged," it is a pinpoint instruction and the court does not have a sua sponte duty to instruct.' [Citation.]" (Ibid.; People v. Mayfield (1997) 14 Cal.4th 668, 778.)
" 'A battery is any willful and unlawful use of force or violence upon the person of another.' (§ 242.) [¶] ' "It has long been established, both in tort and criminal law, that 'the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark." [Citation.] [¶] "The 'violent injury' here mentioned is not synonymous with 'bodily harm,' but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act." [Citation.]' [Citation.]" (People v. Myers (1998) 61 Cal.App.4th 328, 335.)
Battery is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 217; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The intent required for a general intent crime is simply the intent to do the act or omission in question. (People v. Johnson (1998) 67 Cal.App.4th 67, 72.)
Whether consent is a defense to battery depends on the nature of the contact involved. For example, in holding that consent is not a defense to aggravated assault, the court in People v. Samuels (1967) 250 Cal.App.2d 501, stated at page 513: "[C]onsent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling. [Citation.] It is also the rule that the apparent consent of a person without legal capacity to give consent, such as a child or insane person, is ineffective. [Citation.]" Likewise, our Supreme Court has recognized that because "[v]oluntary mutual combat outside the rules of sport is a breach of the peace, mutual consent is no justification, and both participants are guilty of criminal assault." (People v. Lucky (1988) 45 Cal.3d 259, 291.)
In People v. Rivera (1984) 157 Cal.App.3d 736, at page 742, the court held that "[w]here a defendant reasonably believes the touching constituting the alleged assault was consensual he cannot be guilty because there is nothing unlawful about the physical contact between the parties." The court reasoned: "Even though assault is a general intent crime, an act committed under a mistake of fact which disproves any criminal intent is not a crime. [Citation.] 'The effect of mistake, of course, is to negate the element of intent.' [Citation.] . . . A person does not act unlawfully where he commits an act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make the act lawful." (Id. at pp. 742-743, fns. omitted; see also People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 3 [suggesting that the "affirmative defense of a bona fide and reasonable belief by defendant that the 'victim' impliedly consented and thereby would not be offended by the touching" is available where the defendant is charged with simple assault].)
"[U]nder section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. (People v. Mayberry[(1975)] 15 Cal.3d [143,] 154-155 . . . .) [¶] The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to [the physical contact]. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to [the physical contact], that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.]" (People v. Williams (1992) 4 Cal.4th 354, 360-361, fns omitted.)
In the present case, defendant's conduct was "ordinary physical contact." (People v. Samuels, supra, 250 Cal.App.2d at p. 513.) Consequently, if defendant touched the child on her stomach or cheek without the intent to arouse either himself or the child, and the touching was not perceived as offensive or harmful, defendant did not commit a battery. In addition, absent any of the elements that would have brought the conduct within some other criminal statute (such as section 288, subdivision (a), for which defendant was found not guilty (see People v. Soto (2011) 51 Cal.4th 229, 233), the conduct would be permissible if engaged in with the consent or implied consent of the child. Thus, whether the trial court was required to instruct on implied consent turns on whether the defendant was relying on the defense, or whether there was substantial evidence supportive of the defense and the defense was not inconsistent with the defendant's theory of the case. (People v. Michaels, supra, 28 Cal.4th at p. 529; People v. Williams, supra, 4 Cal.4th at pp. 360-361.)
Here, the record does not indicate that defendant was relying on the defense of implied consent, or the defense that he subjectively but mistakenly believed that M. consented to the physical contact, at trial. Defendant's defense was that his kissing M. and blowing on her stomach was nonsexual affectionate physical contact that was not conducted in a harmful or offensive manner. Defense counsel told the jury, "You have to determine when he kissed her on the cheek, did he do it in a manner to be harmful and offensive. Is that what we do when we kiss a child on the cheek? Is that what [he] did in this case when he was kissing a child on the cheek? Was his intention to offend her when he kissed her on the forehead? Was [it] his intention when he touched her or blew on her belly? Was that offensive when she's laughing? You have to make that decision." If the jury believed the defense theory, the evidence would have established no offensive touching, and thus no battery. (CALCRIM No. 960.)
In addition, we can find no evidence " 'sufficient to deserve consideration by the jury' " (People v. Strozier, supra, 20 Cal.App.4th at p. 63) that M. impliedly consented to defendant's touchings. M. specifically testified that she did not give defendant permission to touch her stomach with his mouth or kiss her on her cheek. She laughed when defendant touched his mouth to her stomach, but she did so because it tickled; she otherwise felt uncomfortable with the touching. Defendant told the investigating officer that M. climbed up on his lap, but he did not say that M. gave any indication of consenting to his touching her with his mouth on either her stomach or on her cheek. Laughing in response to a tickling sensation during physical contact is not evidence of implied consent to the physical contact that caused the tickling sensation; the person touched may still consider the touching harmful or offensive. In addition, any mistake that defendant may have had regarding consent was otherwise not reasonable under the circumstances. Defendant was not a member or friend of Theresa's extended family, so he could not assume that all otherwise affectionate physical contact of M. by him would be perceived by her as not harmful or offensive. Instead, defendant was someone who came to Theresa's home to visit a woman who was temporarily staying there, so he should have known that society would not tolerate his having this type of physical contact with the children in the home. The trial court did not have a sua sponte duty to instruct the jury in this case that implied consent is a defense to battery. (People v. Michaels, supra, 28 Cal.4th at p. 529; People v Williams, supra, 4 Cal.4th at pp. 360-361.)
Probation Supervision Costs
The probation report stated that defendant was born in 1952, and graduated from high school. He last worked in 1989, in the shipping and receiving department for a company that moved out of state. He has not sought employment since that time, and has been supported by his mother. He has two prior drug-related felony convictions and 19 misdemeanor convictions that occurred between 1972 and 1999. The probation officer recommended in part that a "Presentence Investigation Fee not to exceed $450.00" and a "Probation Supervision Fee not to exceed $110.00 per month" be imposed pursuant to section 1203.1b, payable to "the Department of Revenue during the period of probation."
When the court ordered that imposition of sentence be suspended, and that defendant be granted probation for three years, the court stated: "Mr. McNutt is to report to the probation officer within three days. The defendant is referred to the Department of Revenue for a determination of ability to pay fines and fees." The court then set forth the terms and conditions of probation, including that defendant "seek and maintain gainful employment or academic or vocational training as directed by the probation officer." After setting forth all the terms and conditions of probation, the court separately ordered that defendant pay "the following fees not as a condition of probation but separately due to the Department of Revenue during the period of probation, failure to pay these fees will result in civil collection and potential loss of California driver's license. [¶] A pre-sentence investigation fee not to exceed $450, and a probation supervision fee not to exceed $110 per month." Defendant did not object to the order.
Defendant now contends that there is insufficient evidence in the record to support a finding that he has the financial ability to pay the ordered presentence investigation fee and probation supervision fee. He acknowledges that section 1203.1b authorizes the fees subject to a defendant's ability to pay them, but argues that the referral to the Department of Revenue did not satisfy the trial court's obligations under that section. He concludes that the matter must be remanded to the trial court for a determination of his ability to pay the ordered fees.
The Attorney General contends that, "the order for probation imposes no current financial obligation on [defendant]. It simply sets a maximum financial obligation and leaves open what portion of that maximum [defendant] will pay. By ordering [defendant] to report to the Department of Revenue for an evaluation, the trial court properly complied with the procedure that must be followed . . . . Once ability to pay has been determined by the Department of Revenue, [defendant] will have the right to an ability-to-pay-hearing before the trial court."
Section 1203.1b, subdivision (b) states in pertinent part: "The court shall order the defendant to pay the reasonable costs [of probation supervision and any presentence investigation and report] if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative." The statute describes the procedure the trial court must follow before making such an order. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401 (Pacheco).)The court shall first order the defendant to appear before "the probation officer, or his or her authorized representative" so that the officer may ascertain the defendant's ability to pay any part of these costs, and to propose a payment schedule. (§ 1203.1b, subd. (a).) Unless the defendant waives the right, before the court orders payment of these costs the defendant is entitled to a court hearing on his or her ability to pay them. (§ 1203.1b, subds. (a) & (b).) Because the statutory procedure provided by section 1203.1b for the determination of the defendant's ability to pay the ordered probation supervision fee was not followed in Pacheco (Pacheco, supra, at p. 1401), this court directed the superior court to determine in accordance with the statute the defendant's ability to pay the fee on remand before imposing it. (Id. at p. 1404.)
In this case, as in Pacheco, there is no evidence in the record that anyone, whether the probation officer or the court, made a determination of defendant's ability to pay the ordered probation supervision fee or the presentence investigation fee. Nor is there any evidence that probation advised him of his right to have the court make this determination or that he waived this right. "In short, it appears that the statutory procedure provided at section 1203.1b for a determination of [defendant's] ability to pay probation-related costs was not followed." (Pacheco, supra, 187 Cal.App.4th at p. 1401.) For these reasons, the ordered presentence investigation fee and the probation supervision fee cannot stand. (Ibid.)
Criminal Justice Administration Fee
As a condition of probation, the court ordered that defendant pay a "Criminal Justice Administration fee to the City of Santa Clara . . . pursuant to Government Code Section 29550." The court did not orally set the amount of the fee, also referred to as a booking fee, but the probation report recommended that $129.75 be ordered, and that is the amount the minute order reflects. Defendant did not contest the order below. On appeal, citing Pacheco, defendant contends that there is no evidence in the record to support the order and that the order should be stricken. The Attorney General contends that "given the small monetary amount of the fee involved, . . . in the interest of judicial economy the Government Code section 29550 fee should be stricken. . . . Remand to the trial court for a determination of [defendant's] ability to pay would be a waste of judicial resources."
In Pacheco, this court held that "a prerequisite to the imposition of a booking fee . . . under Government Code section 29550 . . . is a finding, whether express or implied, of the defendant's ability to pay. Such a finding must be supported by substantial evidence. Further, a booking fee must not exceed the actual administrative costs of booking, as further defined in the relevant statutes." (Pacheco, supra, 187 Cal.App.4th at p. 1400.) Because there was no evidence in the record in that case of either the defendant's ability to pay a booking fee, particularly as a condition of probation, or of the actual administrative costs of booking (ibid), and this court was reversing the judgment and remanding the matter for other reasons, the court directed the trial court to also determine the defendant's ability to pay the ordered fee. (Id. at p. 1403.)
In this case, as in Pacheco, there is no evidence in the record of either the defendant's ability to pay a booking fee, particularly as a condition of probation, or of the actual administrative costs of booking. (Pacheco, supra, 187 Cal.App.4th at p. 1400.) And, as we are reversing the judgment and remanding the matter for other reasons, upon remand the court should determine the defendant's ability to pay a criminal justice administration fee before reimposing it. (Id. at p. 1403.)
DISPOSITION
The judgment (order of probation) is reversed. The matter is remanded for the limited purpose of determining, in accordance with the applicable statutes, defendant's ability to pay a criminal justice administration fee as a condition of probation, and a presentence investigation fee and a probation supervision fee, before reimposing them.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR:
MIHARA, J.
DUFFY, J.