Opinion
G054073
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE RODRIGUEZ, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF2661) OPINION Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed as modified. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jesse Rodriguez guilty of several vehicle-related felonies after he drove recklessly while under the influence of marijuana and caused great bodily injury to another person. The trial court sentenced Rodriguez to five years' formal probation. On appeal, Rodriguez maintains the trial court improperly prevented him from presenting a defense by limiting the scope of his expert's testimony regarding how marijuana impairs driving. In addition, he states the court erroneously conditioned probation on the payment of several court fees. Finding merit in only the latter contention, we affirm but modify the judgment and remand to the trial court with directions.
FACTS
The parties describe in great detail the events leading to and following the collision between Rodriguez's "lifted" black pickup truck and Richard Browning's motorcycle on Pacific Coast Highway in Huntington Beach, California. Because the scope of this appeal is limited to issues regarding expert testimony and fees, we need only briefly summarize the background facts.
The witnesses offered different descriptions of this notable truck. One witness referred to it as a monster truck. Another called it a brow-dozer truck.
Suffice it to say, Rodriguez recklessly drove around a group of cars and two motorcycles stopped for a signal, by using the right turn lane. When the signal turned green, Rodriguez hurtled forward along the right shoulder of the road creating a large cloud of dust. As he veered from the shoulder into the right traffic lane to get around the cars, he bumped into Browning's right leg and shoulder. This triggered a horrific chain reaction. Browning swerved to avoid being hit, lost control of his motorcycle, and collided with a car causing it to spin and crash. Browning broke multiple bones and lost a great deal of skin as he hit and slid along the pavement. His rectum was torn loose from his bowels. Browning's injuries required more than ten surgeries and he is permanently impaired.
Rodriguez continued driving down the road and made an offensive gesture to Browning's companion, Michael Delacruz, who was riding ahead of Browning. Rodriguez passed Delacruz driving 70 or 80 miles per hour.
Soon thereafter, a police officer pulled Rodriguez over after receiving a call there had been a hit and run accident involving a large black truck. The officer stated Rodriguez acted indifferently when told police were investigating whether he caused a possibly fatal traffic accident. Rodriguez denied being involved in a collision. He stated he smoked marijuana several hours earlier and showed the officer where he had concealed more in his truck. The officer noted Rodriguez had droopy, watery eyes. He failed a series of field sobriety tests. His eyes were constricted and his pulse was 180 beats per minute. The police arrested Rodriquez and blood testing revealed four nanograms of THC per milliliter, and 62 nanograms of THCA (a marijuana metabolite) per milliliter of Rodriquez's blood.
Rodriguez was charged with driving under the influence of marijuana and causing injury (Veh. Code, § 23153, subd. (a), count 1); hit and run in a case involving permanent injury (Veh. Code, § 20001, subds. (a) and (b)(2), count 2); and reckless driving (Veh. Code, § 23105, subd. (a), count 3). With respect to counts one and two, the information contained a great bodily injury enhancement within the meaning of Penal Code sections 12022.7, subd. (a), 1192.7 and 667.5.
After a jury trial, parts of which we will discuss in more detail below, the jury found Rodriguez guilty of all charges. The court placed Rodriguez on five years' formal probation with the following conditions: (1) he serve 365 days in jail (with 126 days credit); (2) pay restitution to the victim; (3) pay multiple fines and fees; and (4) attend a first offender alcohol program.
DISCUSSION
I. Expert Testimony
Rodriguez maintains the judgment must be reversed because the trial court deprived him of his right to put on a defense. Specifically, he complains the trial court erroneously stopped his expert, Mike Henson, from discussing one basis for his opinion in this case. This contention is belied by the record.
Before trial, the prosecution made several motions in limine. One motion sought "to exclude any mention of a 'per se' rule used in any state other than California." The prosecution explained, "any per se rule based on nanograms of THC (the active component of marijuana) is irrelevant to the law in California. The fact that another state's legislature passed a law setting a per se rule concerning the amount of nanograms in a defendant's blood is not a fact of consequence to the case at hand." The prosecution argued evidence of out of state per se rules may lead the jury to draw an improper conclusion that such rules should apply in California.
At the hearing, defense counsel stated the parties exchanged summaries of the anticipated expert testimony. The documents indicated Henson was relying on a scientific study "with respect to quantitative levels of active ingredients of THC and the inactive ingredients . . . and equating them or trying to correlate them to blood alcohol concentrations [(BAC)]." Defense counsel explained that in referring to this study, Henson references Colorado and Washington as two states that have a per se rule of five nanograms per milliliter of blood, and the study equates that to California's BAC limit of .08 percent. Counsel acknowledged California did not have a per se rule regarding marijuana concentrations and that the prosecution's burden was only to prove Rodriguez was driving impaired.
The court asked defense counsel if Henson could compare concentrations of marijuana with alcohol without referring to the per se rules in other states. Counsel replied, "I don't have a problem with him not referencing Washington and Colorado. What I don't want is that he be limited [regarding] the purpose of these studies that are trying to correlate impairment to a specific quantitative level of nanograms per milliliter." Counsel stated he wanted the jury to understand the purpose of the studies was relevant to this case because "it's a problem with marijuana." A certain level of THC does not prove Rodriguez was driving impaired.
The prosecutor agreed the concentration level of THC was not relevant to the issue of impairment. She explained, the prosecution's expert would testify the concentration was only relevant because it showed how long the drug had been in Rodriquez's system.
Defense counsel stated that if the only reason to introduce the concentration level of THC was to prove the time of ingestion, "I don't see a problem" with introducing the four nanograms figure. He added that with respect to the motion in limine to exclude evidence of other states' per se rules, "I've agreed with the court that I would instruct . . . Henson to not reference Washington and Colorado."
Defense counsel expressed concern, however, with "the air of guilt" created when the prosecution says four nanograms per milliliter represents the "active ingredients" of marijuana. Counsel stated his expert should be allowed to testify about what the term "active" means in the context of determining driving impairment. He argued, "in order to discuss what's meant by 'active ingredients,' you need to talk about the studies and what they have looked at with respect to levels."
The court ruled as follows: "I am not familiar with the science related to ingestion of marijuana and its affects depending on how many nanograms there are per milliliter of blood. So what I'm going to do is this. I'm going to hear the people's evidence in chief from the people's expert. At that point I will know more about the science. Then you can renew your motion. [¶] You will not be able to cross-examine in such a way as to suggest the law in other states. I'm very concerned about that because if indeed Nevada has a level of two and Colorado and Washington a level of six, I can see us going down a very twisted path in the evidence that does - and that means that if I ultimately allow you to have your expert testify regarding the correlation between nanograms and alcohol content, not the law but the correlation, you would be able to call [back the prosecution's witness again if necessary]."
The court added, "So that you are prepared, my tentative is that the law in California says the level is not what's important. It's whether he was or was not under the influence of marijuana. However, I can see that the level of nanograms might be relevant to the time of ingestion . . . [and] the four nanogram evidence appears to be probative," but the testimony the prosecution seeks to exclude concerning the correlation between THC and alcohol levels is more prejudicial than probative. The court stated such evidence might confuse the issues, mislead the jury, and consume a great deal of time, but it was "reserving [its] decision however until I have heard the people's evidence on direct."
The prosecution's expert, Orange County Crime Lab forensic scientist, Kari Declues, testified about the significance of the lab report showing Rodriguez's blood contained four nanograms per milliliter of the active ingredient of marijuana (THC). She explained this concentration of THC confirmed Rodriguez ingested marijuana three to five hours before the sample was taken. She described the drug classification of marijuana and how it affects people.
Declues stated the concentration of THC found in the blood could not be used to determine if someone was impaired. "This has to do with how the drug functions. Essentially when someone consumes a drug, it goes into their blood stream and is very rapidly distributed into the tissues and into the brain which means that the blood level is not necessarily going to be reflective of what's actually in the brain, and that's where you are going to see the affects when you have high levels of drug in the brain. So you might have low level [of THC] in the blood and high levels in the brain or vice versa . . . so it's very difficult to correlate any sort of level to impairment." When asked if the number was relevant in any way, she replied, "The number is important only because it gives you a window of time, that three to five hours I mentioned earlier . . . ."
The prosecution asked Declues if she was familiar with any studies that have "attempted to correlate a measured level of marijuana in the system to a blood alcohol content[.]" Declues confirmed there were several studies and "the results are kind of all over the place." She stated there was no scientific consensus there is an equivalency and she believed this was because the two drugs had different effects. She stated alcohol and THC are processed differently by the body. "THC is a fat loving molecule that means it wants to go to the places where there's fat. There is [no] fat in the blood, mostly water. THC is not happy there. It goes into the fat portion or also the brain where there's also fatty portions." Thus, with THC, the blood and body tissue will have different concentrations of the drug. In contrast, with alcohol, the impairment is linear because "the distribution between the tissues and the blood is the same. There [is an] equilibrium. Measuring one, you can infer the other."
Rodriquez's expert, Henson, was a clinical and forensic scientist. Henson described his background, training, and experience. He reviewed the laboratory report, police reports, and certain scientific publications studying the effects of marijuana and driving. He looked at the current research on the issue of what levels of marijuana would cause impairment. Based on the above items, Henson opined there was insufficient evidence to support the conclusion Rodriguez's consumption of marijuana impaired his driving.
He first discussed a scientific research paper published in 2015 regarding the effects of marijuana on a person's driving (referred to by the parties as the Hartman/Huestis study). He explained the purpose of the study was to address the growing concern from communities and law enforcement now that marijuana had been legalized in many states. Henson further explained many scientific researchers were now studying marijuana with the goal of determining a person becomes impaired "at level X."
The parties refer to this scientific report using only the last names of two of the eight scientists involved in the investigation. (Rebecca L. Hartman et al., Cannabis effects on driving lateral control with and without alcohol, Drug and Alcohol Dependence, (2015) Vol. 154, pp. 25-37.) For the sake of clarity and ease of reading, we will refer the report as the "Hartman study."
However, Henson clarified the quantity of marijuana in a person's blood does not establish impairment. He explained that unlike alcohol, which enters and leaves the body "in a very linear fashion," marijuana is stored in fatty tissues in different parts of the body. He stated alcohol is a much easier drug to study because a correlation can be made between the concentration of alcohol and impairment. Henson stated marijuana does not have the same reaction in people, and there are other factors such as weight, metabolism rates, and tolerance levels to consider. Moreover, there is a wide variety of marijuana sold, having different concentrations of the active ingredient.
Henson stated the Hartman study examined what level of marijuana would cause impairment similar to a .08 percent BAC. He discussed how the experiment was conducted. In short, a group of people were given different doses of marijuana, alcohol, or both, and asked to perform tasks similar to those used in field sobriety tests. People were given increasing doses of marijuana and asked to drive a simulator to see if they could "stay within a lane."
Henson discussed a second study that attempted to develop limits for driving under the influence of marijuana. Henson noted he reviewed five other articles to prepare for his testimony in the case. He admitted there was no scientific consensus on the issue of what level of marijuana in the bloodstream would cause impairment.
Henson explained the scientists in these various studies used different methods of observation to measure the person's level of impairment. He stated it was not necessary to put a person "behind the wheel of the car" to determine what their level of driving performance would be. He discussed the same observation techniques used by scientists were currently used by police using field sobriety tests (FST) and drug recognition evaluations (DRE). Henson stated the DRE are simply "an expansion" of the FST. "[The DRE] are going to confirm what the officer observed, but they are going to go a step further. They are going to interview you like the officers did. They are going to interview the officer, and then they are going to perhaps go a step further. Go a little deeper into physiological exam such as pulse and blood pressure . . . in a controlled environment, pretty much repeat what the officer himself has done."
Henson stated the police officer used standard FSTs in Rodriguez's case. Before discussing the specific tests, Henson explained there was a difference between being under the influence and being impaired by marijuana. While being under the influence meant there was evidence it was causing a physiological effect on the person's body, the concept of being impaired meant the person was not able to perform certain functions, such as driving a car.
Henson stated the officer's report indicated Rodriguez's pupils were constricted. He testified a person impaired by marijuana would have normal or dilated pupils. Henson stated the report also noted Rodriguez's pulse was high, which could be a sign of marijuana impairment. Henson opined a high pulse rate could also be caused by the stress of being arrested and confronted by a police officer. For this reason, drug recognition protocols call for the officer to repeat this test a half-hour later. Henson explained, if the person is under the influence of a drug, the pulse rate will remain high, but if the elevated pulse rate was caused by the environment, the pulse rate should go down.
Next, Henson discussed the standing balance test, also referred to as the internal clock test. For this test, the subject is asked to close their eyes, place their feet together, put their head back, keep their hands down, and then say how much time has passed for over a 30-second period. The police report indicated Rodriguez had a "normal response" to this test. When asked what would be expected from a person impaired by marijuana, Henson stated, "that's a funny part about marijuana[, everyone] acts differently."
Defense counsel asked the hypothetical question if it would also be normal if the person were swaying during the test. Henson said this conduct could suggest a problem with balance control, but swaying by itself was not the only indicator needed to conclude marijuana was causing the person to become impaired. He opined, "You need multiple indicators to determine impairment."
Henson stated the "walk and turn test" needed nine elements in order to determine possible impairment. He stated missing a "heel to toe" was a "possible indicator of influence" but this fact by itself was not sufficient to conclude the person was impaired by marijuana. Henson testified, "Again, you would need multiple indicators." He agreed with defense counsel's statement that a subject who is able to take nine steps out and back is able to follow instructions.
With respect to the "one leg stand test," Henson stated the police report was unclear about what happened. He agreed with defense counsel's statement that the test was not relevant if it was discontinued and not scored in the report. Henson also discussed the "finger to nose test." He explained the purpose of this test was to determine coordination, balance, and the ability to follow instructions. Henson said that of the six indicators in this test, Rodriguez could not complete two of them. He stated these two indicators were not, by themselves, enough to conclude he was impaired by marijuana. Henson agreed with defense counsel's statement that another relevant factor was Rodriguez's ability to follow the officer's instructions, giving a particular finger touch order sequence. Henson stated the officer performed a horizontal gaze nystagmus test, but this test is not "one of the indicators for marijuana."
Finally, Henson discussed the "lack of convergence" test. The purpose of this test is to observe the subject's ability to follow a point of light in front of their face and be able to cross their eyes. The inability to cross their eyes indicates the presence of a depressant such as marijuana, benzodiazepine, or valium. Henson opined a negative result on this test does not necessarily mean the subject is impaired by marijuana. "Lack of convergence can be present simply by having marijuana on board and in the body. It doesn't necessarily mean that the person is impaired but is an indicator that the drug is present."
In forming his opinion, Henson stated he also considered the level of THC in Rodriguez's blood. Defense counsel asked, "When you reviewed the two studies that you referenced earlier, in particular the Hartman . . . study, you said in that study they were attempting to correlate quantitative levels of marijuana to blood alcohol concentrations?" Henson replied this was correct. He also confirmed the Hartman study was "one of many" reports and there was "no scientific consensus on this yet."
Defense counsel then asked, "In [the Hartman] study, were they able to correlate a quantity of marijuana in the measurement of nanograms per milliliter that you see here on the crime lab's report to a specific level of .08 [BAC]?" The prosecutor objected to the question on the grounds of relevance. The court sustained the objection. There was no other discussion related to this ruling. Defense counsel next asked Henson to state his final opinion regarding Rodriguez's impairment.
Henson stated the lab tests "clearly indicate" Rodriguez used marijuana. "However, from the papers that I've read and from the field sobriety tests, I'm not convinced that the person was impaired for purposes of driving; although, it's clear that marijuana was on board." Defense counsel asked Henson to state the reasons on which his opinion was based. He replied, "There's the elements in the field sobriety report, the pupil size, the no confirmation on the pulse rate. I would like to have seen a DRE exam to confirm the other elements in the report, and there was no narrative or no description conclusion by the police officer on the field sobriety tests as to what was causing the . . . elements that we saw in [those tests]. There was no written conclusion and no indication by the police officer that he observed bad driving on that report." Henson concluded neither the lab report nor the police report contained enough information to conclude Rodriguez "was impaired by marijuana for purposes of driving."
Later, on redirect examination, Henson stated there was nothing revealed during cross-examination that would change his opinion in the case. He explained there was evidence of bad driving, but he was not convinced marijuana was the cause or that the drug impaired Rodriguez's driving for two different reasons. He then elaborated there were items related to the field sobriety test that needed to be "confirmed." He testified the lab report had "an insufficient level of marijuana that new evidence is showing may not . . . ." The prosecutor interrupted his sentence with an objection, which the court sustained. The court also granted the prosecutor's motion to strike "everything after [and] right before [the word] 'new' [in the] sentence." Without any further discussion about the ruling, defense counsel continued questioning Henson. Counsel asked Henson's opinion about impairment based on the evidence and studies he reviewed. Henson stated he did not think there was "enough information to determine if [Rodriguez was] impaired by marijuana." Thereafter, both counsel agreed the witness could be excused.
To summarize, the first objection prevented Henson from referring to Hartman's scientific findings regarding what particular level of THC would equate to what the California legislature has deemed illegal for alcohol levels (.08 percent BAC). Similarly, the second objection effectively stopped Henson from drawing a comparison between the marijuana levels reported in Rodriguez's lab results to "new evidence" these levels related to certain BACs. Although Henson was interrupted, the only "new evidence" unveiled in Henson's prior testimony that related to driving impairment was the Hartman study's results drawing comparisons between specific THC and BAC levels. The prosecution apparently anticipated Henson planned to say that what the "new evidence [was] showing" was that four nanograms of marijuana "may not" equate to other states' per se rules or California's per se alcohol rule (BAC of .08 percent or higher).
Thus, in both instances, the expert was not allowed to relate how one scientific study equated a specific level of marijuana with a certain BAC level or per se rule. Rodriguez asserts these two rulings prevented him from presenting a defense. Specifically, he argues, "The whole weight of Henson's expert testimony was hanging on the thread of the court's instruction to the jury governing how they should evaluate this specialized form of evidence." He notes the jury was given CALCRIM No. 332, telling it to consider many factors including "the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion." Rodriquez argues that because the court limited Henson from "stating the other matters on which he replied," the court "substantially changed the weight that his opinion was entitled to and created a reasonable probability that . . . it could change the result of the trial."
The record does not support these arguments because the trial court allowed Henson to state reasons for his opinion and the matter he relied on in forming his opinion. The inclusive and uncorroborated results of the FST were the primary basis for his opinion there was inadequate evidence marijuana caused any driving impairment. A second reason for his opinion was the toxicology report. The court permitted Henson to explain why he believed the toxicology report would not support a finding of impairment. Henson explained the quantity of THC in the blood stream was not a good indication of a person's level of impairment due to the way THC was processed in the body. He acknowledged the scientific community had yet to reach a consensus on whether a person was impaired at a certain "level X." He discussed the existing scientific studies and need for more research to determine the quantity of "X" to assist law enforcement in determining if marijuana is causing impairment. Thus, Henson relied on the scientific studies in the context of proving the toxicology report's conclusion regarding the quantity of THC in the blood stream was inconclusive, further supporting his final opinion there was inadequate evidence marijuana caused any driving impairment. His opinion was not based on the actual results of the toxicology test to affirmatively prove Rodriguez was not driving impaired with four nanograms per milliliter of THC in his bloodstream.
The court's ruling stopped Henson from discussing what specific conclusion was reached in the Hartman study on the correlation between levels of THC in the blood stream and .08 percent BAC. This ruling did not impede Henson from stating the reasons for his expert opinion, including that the quantity of THC was not relevant in proving impairment.
Rodriguez also complains the court's evidentiary rulings made final its tentative ruling on the prosecution's motion in limine without a hearing or final ruling. Not so. The prosecution's motion in limine sought to exclude evidence of other states' per se rules regarding THC levels. Defense counsel agreed there was no need to refer to those per se rules. The court ruled defense counsel could not cross-examine the prosecution's expert to suggest there were per se THC laws in other states. It added, "you can renew your motion" and, if necessary, recall Declues. However, the motion the court was referring to was not the prosecution's motion in limine, which had been decided. It was unsure how to rule on defense counsel's request to have Henson testify regarding the purpose of scientific studies looking at the correlation between THC nanograms and alcohol content. There was no need for counsel to renew the motion. Both experts agreed there were many scientists investigating this issue and there was still no consensus in the scientific community a person was impaired "at level X." Henson was permitted to testify about the relevancy and purpose of the current scientific studies on the issue. Henson explained why scientists were attempting to correlate specific levels of THC to concentrations of BAC and that the studies involved tests similar to the FST to measure a person's level of impairment.
Finally, Rodriguez asserts different scientific opinions should be available to the jury "through the means of expert testimony." He concludes, "If the court allowed the prosecution to call an expert to testify . . . Rodriguez was driving under the influence of marijuana even when the toxicology report showed he had a low level of THC in his system, the court should not have deprived [him] of the opportunity to counter this evidence with a contrary expert opinion that was based upon a 'publication [which] has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.' (Evid. Code, § 721, subd. (b)(3).)" We conclude Rodriguez was not deprived of the opportunity to present contrary expert opinion. His expert opined the FST and toxicology report provided inadequate evidence marijuana caused any driving impairment. His expert opined the low level of THC was irrelevant in deciding whether Rodriguez was driving impaired and the conclusion must be based on observations during FST and DRE. Simply stated, Rodriguez's expert did not base his opinion upon a publication correlating nanograms of THC with a particular BAC. We conclude the court properly limited Henson's testimony to the reasons given in support of his opinion.
II. Payment of Fees
Rodriguez asserts the court operations fee (Pen. Code, § 1465.8) and a criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1)) cannot be made conditions of probation and must be imposed as a separate order at judgment. The Attorney General acknowledges there is case authority supporting Rodriguez's contention that neither of these fees is enforceable as a probation condition because such fees are collateral to a defendant's crimes. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402 [regarding Penal Code section 1465.8] (Pacheco), disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850; People v. Kim (2011) 193 Cal.App.4th 836, 842 [regarding Government Code section 70373] (Kim).) However, the Attorney General argues the case law "rests on a mirage," and there is no legal reason why the fees should not be made conditions of probation. He suggests payment of these fines are rehabilitative because "It may well be that helping to fund the courts would be a way for the probationer to make amends to society, or that it would aid in his or her reformation and rehabilitation." We are not persuaded and conclude the existing legal authority is well reasoned and should not be disturbed.
Government Code section 70373 provides: "(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction. [¶] . . . [¶] (d) . . . [T]he assessments collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury . . . ."
Penal Code section 1465.8, provides: "(a)(1) To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses . . . [¶] . . . [¶] (d) . . . [T]he assessments collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Trial Court Trust Fund. . . ."
In the Pacheco case, the court held, "The imposition of the court security fee [under Penal Code section 1465.86] as a condition of probation was unauthorized because like probation costs, this fee is collateral to [defendant's] crimes and punishment and as such, its payment may not be made a condition of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892 [probation costs are collateral and thus their payment may not be made a condition of probation]; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322 [same]; People v. Hart [(1998)] 65 Cal.App.4th [902,] 907 [same regarding attorney fees and costs].) Certain fines such as those relating to restitution, for example, may by statute be imposed as conditions of probation, but the court security fee is not one of them. [Citations.] One reason for the distinction between fines that may be imposed as probation conditions and those that may not is that probation 'should be oriented towards rehabilitation of the defendant and not toward the financing of the machinery of criminal justice.' [Citation.] An equally compelling reason for the distinction is that a defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees. [Citation.] The nonpunitive purpose of the court security fee squarely places it among those fines and fees that are collateral to the crime and the consequent punishment for its commission. [¶] An order directing payment of collateral costs like the court security fee is thus not enforceable as a probation condition but instead only as a separate money judgment in a civil action, and the order should thus be imposed as a separate order entered at judgment. [Citations.] Because the order directing payment of the court security fee as a condition of probation was erroneous, we will modify the judgment to delete it as a probation condition and clarify that it is instead a separate order. [Citation.]" (Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403.)
In the Kim opinion, the court held the same reasoning also applied to Government Code section 70373, subdivision (a)(1)'s fees designed to fund court facilities. (Kim, supra, 193 Cal.App.4th at p. 842.) "Neither statute provides for considering a defendant's ability to pay, nor do they provide for imposing the fee or assessment as a probation condition. (Cf., e.g., § 1202.4, subd. (m) [restitution fine].)" (Ibid.) The court reasoned such fees were oriented towards raising revenue for court operations, a purpose separate from defendant's crime, punishment and rehabilitation. (Ibid.) It concluded a defendant cannot be imprisoned for violating an order to pay costs and fees and the court facilities assessment should be separately imposed and not made a condition of probation. (Ibid.)
The discussion in these cases answers the Attorney General's contention there are "no good reasons" why the fees in question should not be made conditions of probation. He offers no analogous legal authority to support the theory that payment of fees aid in a defendant's rehabilitation or reformation. It appears the Attorney General has lost sight of the fact that the fees are mandatory and cannot be stayed (People v. Woods (2010) 191 Cal.App.4th 269). Thus, an order directing payment of the fees can be enforced as a separate money judgment in a civil action. (Pacheco, supra, 187 Cal.App.4th at p. 1403.) It is unnecessary to enforce payment as a probation condition.
Rodriguez also complains the court ordered him to pay the costs of the probation report and probation services as a condition of probation. True, "the costs of probation . . . may not be a condition of probation as the costs are collateral and the statute itself provides for enforcement of the order by civil collection." (People v. Hart (1998) 65 Cal.App.4th 902, 907.) However, a probationer may be ordered to pay these costs if he or she is financially able to do so. (People v. Hall, supra, 103 Cal.App.4th at p. 892.) Although the court clerk's minute order reflects payment is one of the conditions of probation, the court plainly stated at the hearing, these costs "cannot by law be made a condition of probation, so those will be separate orders." Accordingly, we find no error with respect to these costs, and the minute order must be corrected to accurately reflect the court's ruling.
DISPOSITION
The order of August 30, 2016, is modified to reflect that the court fees imposed under Penal Code section 1465.8 and Government Code section 70373 are separate orders and are not conditions of probation. The court clerk of the superior court is directed to correct the minutes to reflect these two fees, as well as the costs of the probation report and probation services are separate orders, and are not conditions of probation. As so modified, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. FYBEL, J.