Opinion
As Modified Nov. 17, 1992.
Review Granted Feb. 11, 1993.
Review Dismissed and Cause Remanded Aug. 19, 1993.
Review Granted Previously published at: 15 Cal.App.4th 1509, 10 Cal.App.4th 772
Opinions on pages 1377-1577 omitted.
REVIEWS GRANTED [Copyrighted Material Omitted] COUNSEL
[12 Cal.Rptr.2d 807] Darren J. Kessler, Albany, Through the Appointment of the Sixth District Appellate Program, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Mary A. Roth, Deputy Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., for plaintiff and respondent.
OPINION
CAPACCIOLI, Associate Justice.
Statement of the Case
Defendant Barbara Doty Rios appeals from a judgment entered after she pled guilty to possession of methamphetamine and driving with a suspended license. (Health & Saf.Code, § 11377, subd. (a); Veh.Code, § 14601.1, subd. (a).) She claims the trial court abused its discretion in ordering her to pay a lab fee, a drug program fee, and probation supervision costs without first making a determination that she was able to pay them. We agree in part and remand the matter for further proceedings.
Facts
After defendant pled guilty, the court suspended imposition of sentence and placed defendant on probation for three years. As a condition of probation, defendant was ordered to serve sixty days in jail, attend a substance abuse counselling program, and pay a restitution fine, drug program fee, a lab fee, and probation supervision costs.
At the hearing the court did not expressly inquire into defendant's ability to pay any of these fees and costs.
Discussion
Waiver
The Attorney General claims defendant waived any error in ordering payment of various fees and costs because she failed to [12 Cal.Rptr.2d 808] object when the fees were imposed. He asserts that although an objection is not needed when a condition is void, i.e., exceeded the court's authority to impose, a defendant must object if the condition is merely voidable. He argues that since defendant's complaints here are procedural, the probation conditions imposed are merely voidable and, therefore, an objection was required to preserve these complaints for appellate review. We find no merit to this claim.
The Attorney General cites no authority that has recognized this novel distinction between void and voidable probation conditions. His reliance on People v. Keele (1986) 178 Cal.App.3d 701, 224 Cal.Rptr. 32 to support this basic concept is misplaced. There, after a lengthy hearing on whether to order restitution to the defendant's victims, the court determined that restitution was appropriate. Because the matter was complex and the amounts involved were large, the court left the specific amount, manner, and time of payment for the probation officer to figure out. (Id. at p. 705, 224 Cal.Rptr. 32.) On appeal, the defendant claimed the court improperly delegated these tasks. (Id. at p. 706, 224 Cal.Rptr. 32.) The court held that defendant waived this claim by failing to object below. (Id. at p. 708, 224 Cal.Rptr. 32.) The court acknowledged that no objection is needed to challenge the validity of a probation condition. The defendant, however, did not claim the condition was invalid but simply disputed the " mechanics of implementing [it]." (Id. at p. 708, 224 Cal.Rptr. 32.)
Keele supports the well settled rule that an appellate challenge to the validity of a probation condition requires no objection at the time it is imposed. (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727; People v. Hernandez (1991) 226 Cal.App.3d 1374, 1377, 277 Cal.Rptr. 444, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1,124 Cal.Rptr. 905, 541 P.2d 545; People v. Kiddoo (1990) 225 Cal.App.3d 922, 925-927, 275 Cal.Rptr. 298.)
There are two theoretical justifications for this rule, both premised on the fact that the imposition of probation is controlled by statutes that require probation conditions to be reasonable . (See Pen.Code, § 1203.1.) First, a defendant cannot waive the right to be subjected only to reasonable conditions because the statutes requiring reasonable conditions reflect fundamental public policy that cannot be contravened by private agreement. (People v. Kiddoo, supra, 225 Cal.App.3d at pp. 925-926, 275 Cal.Rptr. 298; People v. Dominguez (1967) 256 Cal.App.2d 623, 627-629, 64 Cal.Rptr. 290.) Second, the imposition of an unreasonable probation condition is not authorized by statute, outside the court's power, and thus an act in excess of jurisdiction. Thus, it is void and cannot be ratified by consent, waiver or estoppel. (People v. Kiddoo, supra, 225 Cal.App.3d at p. 926, 275 Cal.Rptr. 298; People v. Blakeman (1959) 170 Cal.App.2d 596, 597-598, 339 P.2d 202.)
The Supreme Court recently granted review in People v. Welch (1992) --- Cal.3d ----, 6 Cal.Rptr.2d 638, 826 P.2d 1125, where the Third District held that the failure to object waives the right to contest probation conditions.
Defendant here claims, in effect, that the orders of restitution are unreasonable, that is, unauthorized by statute, because the trial court failed to make a statutorily required finding that she had the ability to pay restitution. As such, she challenges the validity of the conditions, and an objection below was unnecessary. Therefore, we turn to the merits of defendant's appeal.
People v. Keele, supra, 178 Cal.App.3d 701, 224 Cal.Rptr. 32, on the other hand, involved restitution to victims, for which there is no statutory requirement of a special hearing or even finding on the defendant's ability to pay. (People v. Ryan (1988) 203 Cal.App.3d 189, 193, 249 Cal.Rptr. 750.)
Probation Supervision Costs
Penal Code section 1203.1b provides in pertinent part, " (a) In any case in which a defendant is convicted of an offense and granted probation, the court ... shall make a determination of the ability of the defendant to pay all or a portion of the reasonable [12 Cal.Rptr.2d 809] cost of probation; and of conducting the presentence investigation and preparing the presentence report made pursuant to Section 1203.... The court shall order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of such costs. At a hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the county officer."
This section further explains, " In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution."
The section defines " ability to pay" as " the overall capability of the defendant to reimburse the costs, or a portion of the costs" and includes, among other things, the defendant's present financial position, reasonably discernible future financial position during the next six months, and the likelihood of employment during this period. (Pen.Code, § 1203.1b, subd. (b).)
Clearly, a hearing on a defendant's ability to pay probation supervision costs must be held either by the court or a county officer. Moreover, as with other statutory sentencing requirements (see, e.g., Pen.Code, § 1170.3, subds. (a) and (b)), the statute contemplates the creation of an evidentiary record that not only enables the trial court to make an informed determination concerning a defendant's ability to pay probation supervision costs but also provides a basis to review that determination on appeal.
Thus, in People v. Adams (1990) 224 Cal.App.3d 705, 274 Cal.Rptr. 94, the trial court found defendant able to pay probation supervision costs and ordered payment, but the appellate court reversed because the court did not hold a hearing on defendant's ability to pay and thus there was no evidence to support its finding. (Id. at pp. 712-713, 274 Cal.Rptr. 94; People v. Bennett (1987) 196 Cal.App.3d 1054, 1057, 242 Cal.Rptr. 380 [failure to hold hearing requires reversal and remand].) The court said that at a minimum, " the requirement of a hearing includes a requirement that evidence of the defendant's ability to pay be admitted." (224 Cal.App.3d at p. 713, 274 Cal.Rptr. 94.)
Although there was a probation report, the opinion does not say whether the probation officer inquired into defendant's ability to pay, recommended payment of probation supervision costs, cited the applicable code section, and/or contained a written statement of findings relevant to a determination of defendant's ability to pay. (People v. Adams, supra, 224 Cal.App.3d at p. 708, fn. 1, 274 Cal.Rptr. 94.)
The court noted that although the defendant said he was working, this statement was insufficient evidence to support the trial court's finding because there was no evidence defendant would have income during the jail term he had to serve prior to commencing probation or that he would have the ability to pay costs thereafter. (People v. Adams, supra, 224 Cal.App.3d at p. 713, 274 Cal.Rptr. 94.)
The Attorney General notes that here the probation report contained some financial information about defendant's ability to pay and the trial court reviewed the report before ordering payment of the supervision costs. Thus, he argues that the trial court implicitly found that defendant had the ability to pay and that the report supports this finding.
The probation officer interviewed defendant concerning her " Employment/Financial Status." The probation report reveals defendant is a graphic artist, with a diploma from the Masters Institute. Her employment history reveals that between March 1989 and August 1990, she earned $1800 per month. From November 1990 to March 1991, she earned $2400 per month. And from August 1991 to September 1991, the date of the report, she earned $1600, presumably per month. However, the report also lists her " present income" as $1000 per month. Finally, the report indicates that she has $1315 in monthly expenses and owns a 1985 automobile.
[12 Cal.Rptr.2d 810] Although Penal Code section 1203.1b entitles a defendant to written findings, it does not itself require an express finding on the record that a defendant is able to pay probation supervision costs. Nevertheless, we conclude that to assure compliance with the statute and permit adequate appellate review, the record must explicitly show that the required hearing on ability to pay was held. The record must also contain sufficient evidence to support the trial court's determination.
The record here consists of a probation report and one-and-one-half-page transcript of the sentencing hearing. It does not explicitly reveal that the required hearing occurred. The court did not itself inquire into defendant's overall capability to reimburse probation costs or her present financial position. In fact, the record does not clearly indicate that the court even knew of the statutory requirement for a hearing or its obligation to make a determination concerning defendant's ability to pay probation supervision costs. Nor does the probation report suggest that a county officer conducted the required hearing. It contains no evidence of defendant's reasonably discernible future financial position during the next six months or her likelihood of employment during this period and does not explicitly reflect that the probation officer considered these things.
Under the circumstances, even if the probation report put defendant on notice that costs would be requested, the trial court still had the responsibility to make sure the required hearing took place and then determine her ability to pay. (See People v. Bennett, supra, 196 Cal.App.3d at p. 1057, and fn. 3, 242 Cal.Rptr. 380.) Given the mandatory statutory procedures incident to properly ordering payment of supervision costs and the brevity of the sentencing hearing, we decline to infer compliance with the statute.
Finally, even if we could reasonably infer such compliance from this record, the information in the probation report is insufficient to support an implied finding of defendant's ability to pay. There is conflicting information on her present monthly income ($1000 vs. $1600), her monthly expenses are listed at $1315, other mandatory fines and fees were imposed, and there is no information on her financial position during the following six months or the likelihood she will be employed during this period.
Under the circumstances, it is appropriate to remand the matter for a hearing and determination concerning defendant's ability to pay.
The Drug Program Fee
Imposition of a drug program fee is authorized by Health and Safety Code section 11372.7, subdivision (a): " [E]ach person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred dollars ($100) for each separate offense." Subdivision (b), however, provides: " The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee."
In contrast to Penal Code section 1203.1b, this statute does not establish a specific procedure for inquiry into the defendant's financial situation or require a hearing to determine ability to pay. Thus, where, as here, the probation report recommends imposition of the fee, citing the statute, and contains financial information about the defendant, and the defendant neither corrects the report nor offers additional relevant financial information about her ability to pay the fee, an appellate court may properly find the necessary determination of ability to be implied in the order requiring payment of the fee. (Cf. People v. Vournazos (1988) 198 Cal.App.3d 948, 957, 244 Cal.Rptr. 82 [information in probation report supports implied finding that defendant able to pay restitution to the victim].) The real question concerning the propriety of an order to pay this fee is whether the record contains sufficient evidence to support this implied finding.
It does seem somewhat anomolous to have different analyses apply depending on the sort of costs, restitution, fee, or fine imposed. However, the difference arises from the difference in the statutes that authorize the various restitution, fines, and fees. (See People v. Ryan, supra, 203 Cal.App.3d at pp. 193-194,249 Cal.Rptr. 750.)
[12 Cal.Rptr.2d 811] In this case, however, even if we infer that the court made the necessary determination, which, given the brevity of the sentencing hearing, it is most difficult to do, we nevertheless would conclude that the information in the probation report, by itself, is too vague, contradictory, and misleading to permit a thoughtful determination of defendant's ability to pay. As noted above, the report simultaneously indicates that defendant's income is sufficient and insufficient to meet her monthly expenses. Without more evidence, the trial court could not reasonably choose which information represented defendant's true present financial situation. Thus, under the particular circumstances of this case, it is appropriate on remand for the court to reconsider the propriety of its order for payment of a drug program fee.
Lab Fee
Health and Safety Code section 11372.5 provides, " Every person who is convicted of [one of certain drug offenses] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." The purpose of this 1980 legislation was to shift the expense of narcotics laboratory analyses from the public to the convicted criminals. (73 Ops.Atty.Gen. 53, 56 (1990).) Since the Legislature here does not require the court to determine the defendant's ability to pay the lab fee, we presume it meant this obligation to be mandatory regardless of the defendant's financial status. Consequently, the court did not err in imposing it.
Defendant claims that the lab fee was imposed under Penal Code section 1203.1ab. Under this section a defendant, who is placed on probation after conviction of drug offenses, must ordinarily be ordered not to use or be under the influence of controlled substances and to submit to testing as directed by the probation officer. The section further provides, " If the defendant is required to submit to testing and has the financial ability to pay all or part of the costs associated with that testing, the court shall order the defendant to pay a reasonable fee, which shall not exceed the actual cost of the testing." Defendant argues that this section required the court to determine her ability to pay the lab fee. We disagree.
The probation report recommended imposition of a lab fee under Health and Safety Code section 11372.5. The court did so. This fee is different from a testing fee under Penal Code section 1203.1ab, in that it is designed to fund costs of criminalistic labs in connection with criminal investigations, purchase of laboratory equipment, and continuing education and training for laboratory forensic scientists. (Health & Saf.Code, § 11372.5, subd. (b).) The section 1203.1ab lab testing fee, on the other hand, is designed to cover or defray the cost of continuous chemical monitoring of a defendant on probation.
Under the circumstances, therefore, Penal Code section 1203.1ab is inapplicable.
Disposition
The probation conditions requiring payment of probation supervision costs and a drug program fee are vacated. The case is remanded for the trial court to determine whether defendant has the ability to pay. It may make this determination either after the required hearing is held or after accepting waivers and/or stipulations that obviate the need for a hearing. In all other respects the judgment is affirmed.
COTTLE, Acting P.J., and BAMATTRE-MANOUKIAN, J., concur.