Opinion
E065302
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CHRISTOPHER SCHERER, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1406545) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed as modified with directions. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant William Christopher Scherer was found with methamphetamine in his possession for the purposes of sale and transportation. Pursuant to a plea to the court, defendant pleaded guilty to selling and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). In return, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years on various terms and conditions, including 180 days in county jail to be served on work release and payment of various fines and fees.
Defendant subsequently appealed, arguing five of the ordered fees were improperly imposed as conditions of probation and the residence approval condition was unconstitutionally overbroad. In a prior unpublished opinion, we found that the payment of costs of probation supervision, the court operations security assessment fee, and the court conviction assessment fee were not imposed as conditions of defendant's probation and could be imposed by a separate court order. We also concluded the drug laboratory and drug program fees were punishment, and thus, could be imposed as conditions of defendant's probation. Nonetheless, to avoid any ambiguities, we directed the trial court to clarify payment of these fees and modified the judgment with directions. We also held that the residence approval condition was not unconstitutionally overbroad.
When we initially filed our opinion, there was a split in authority in the Courts of Appeal on the assessment of drug laboratory and drug program fees. (See People v. Watts (2016) 2 Cal.App.5th 223, 229-237 (Watts) [imposition of additional penalty not permitted], disapproved by People v. Ruiz (2018) 4 Cal. 5th 1100, 1122, fn. 8 (Ruiz); People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696 (Sierra) [additional penalty upheld on drug program fee]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez) [additional penalty required on drug laboratory fee].) After reviewing these decisions, the evolution of cases determining whether the drug laboratory and drug program fees were punitive such that these fees were subject to additional penalties and assessments, the applicable statutes, and prior California Supreme Court authority, we held the court's assessment of the drug laboratory and drug program fees were punishment, and therefore, could be imposed as conditions of probation.
Defendant then petitioned for review to the California Supreme Court. The high court granted review and held defendant's petition pending its decision in Ruiz, supra, 4 Cal.5th 1100, which involved a similar but not identical issue. Ruiz concerned whether it was proper to impose drug laboratory and drug program fees under Health and Safety Code, sections 11372.5 and 11372.7 for a conviction of conspiracy to transport a controlled substance.
In May 2018, the high court filed Ruiz, holding that the drug laboratory and drug program fees were properly imposed for a conspiracy to commit the underlying offense. (Ruiz, supra, 4 Cal.5th 1100.) The court reasoned that in enacting Health and Safety Code, sections 11372.5 and 11372.7, the Legislature intended the drug laboratory and drug program fees to constitute punishment and a conspiracy is " 'punishable' " in the same manner as the underlying felony. (Ruiz, at pp. 1104, 1109-1111.) The court expressly disapproved Watts's conclusion that the assessments under Health and Safety Code, sections 11372.5 and 11372.7 do not constitute punishment. (Ruiz, at pp. 1112-1113, 1122, fn. 8.) But the Ruiz court declined to decide the (unbriefed) issue whether the drug laboratory and drug program fees are specifically subject to assessments under the penalty statutes. (Id. at p. 1122.)
The California Supreme Court then transferred this case with directions to vacate our prior decision and to reconsider the cause in light of Ruiz. We provided both parties the opportunity to file supplemental briefs, which both parties have filed. In his supplemental brief, defendant argues that imposition of the drug laboratory and drug program fees should not be reversed and that imposition of these fees by separate order from the order of probation conditions is not affected by Ruiz. The People respond, in their supplemental brief, that Ruiz supports this court's holding that the drug laboratory and drug program fees are punitive, and thus, appropriately ordered as conditions of probation.
For the reasons explained below, we adhere to our prior conclusions. Accordingly, we affirm the judgment with directions to clarify the imposition of the five challenged fees.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing.
On April 11, 2014, at around 2:40 a.m., Riverside Police Department Officer Garcia and his partner were on routine patrol when they ran the registration of a vehicle driven by defendant. As defendant parked his vehicle in the driveway of his residence, the officers initiated a traffic stop. Upon contact with defendant, the officers discovered defendant's license was suspended. Officer Garcia obtained defendant's consent to search his person and found a small box in defendant's front pocket. The box contained four individual baggies of what looked like methamphetamine. The total weight of the baggies was approximately 3.5 grams. Officer Garcia also recovered $531 in cash from defendant's possession.
On September 21, 2015, an information was filed charging defendant with selling and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 3).
On January 25, 2016, pursuant to a plea to the court, defendant pleaded guilty to all of the counts as charged. Immediately thereafter, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years on various terms and conditions, including serving 180 days in county jail on work release and payment of various fines and fees.
On January 28, 2016, defendant filed a timely notice of appeal, challenging imposition of five fees and the residence approval condition.
In an unpublished opinion filed on October 18, 2017, we directed the clerk of the superior court to modify its minute order for the hearing held January 25, 2016, to clarify that the payment of costs of probation supervision, the court operations security assessment fee, and the court conviction assessment fee were not a condition of probation, but a separate court order. We further directed the clerk to clarify that payment of the drug laboratory fee under Health and Safety Code section 11372.5 and the drug program fee under Health and Safety Code section 11372.7 were punishment, and thus, appropriately ordered as conditions of defendant's probation. In all other respects, we affirmed the judgment.
Defendant then petitioned for review to the California Supreme Court. The high court granted review and held defendant's petition pending its decision in Ruiz. In May 2018, the high court filed Ruiz, and then transferred this case with directions to vacate our prior decision and to reconsider the cause in light of Ruiz. We provided both parties the opportunity to file supplemental briefs, which both parties have filed.
III
DISCUSSION
A. Payment of Fines and Fees as Conditions of Probation
Defendant argues the following fees and fines were improperly imposed as conditions of probation: (1) the cost of probation supervision (Pen. Code, § 1203.1b); (2) a court operations security assessment fee (Pen. Code, § 1465.8); (3) a court conviction facilities assessment fee (Gov. Code, § 70373); (4) a drug laboratory fee (Health & Saf. Code, § 11372.5); and (5) a drug program fee (Health & Saf. Code, § 11372.7). He asserts that these five fees and fines should have instead been imposed as separate orders that could be enforced civilly.
The People respond that all five challenged fees and fines were included in a separate order and not imposed as conditions of probation, as shown on page 2 of the "Sentencing Memorandum" that was made part of the court's order. The People further argue that the drug program fee (Health & Saf. Code, § 11372.7) and the drug laboratory fee (Health & Saf. Code, § 11372.5) should have been imposed as conditions of probation because they are closely connected to defendant's crime, are mandatory, and make amends to society for the costs of drug sales.
On January 25, 2016, defendant, the defense attorney, and the trial court signed a document entitled "Sentencing Memorandum" that included both the terms and conditions of probation and additional orders of the court. The first page of the "Sentencing Memorandum" stated, "The Following Terms and Conditions Are Ordered by the Court," and the second page stated "Additional Orders of the Court." While portions of the sentencing memorandum are entitled "terms" and "conditions," the fines and fees challenged by defendant here are all included within the subheading "Additional Orders of the Court" on the second page. Without objection, the trial court incorporated the "Sentencing Memorandum" into its order.
The court's January 25, 2016 minute order placing defendant on probation stated that defendant is to "[p]ay the costs of probation supervision in an amount to be determined by the Probation Department. [¶] Based on the level of supervision, the costs will range from $591.12 to $3[,]744.00. (PC 1203.1b)." This minute order also stated that defendant is to pay "Court Operations Assessment fee of $40 imposed for each convicted charge. (1465.8 PC)" and "[p]ay conviction assessment fee for the following convicted count(s) 1 2 3. (GC 70373). [$30. each misd and felony]." This minute order further noted that defendant is to "pay a criminal laboratory analysis fee of $205.00, including assessment (HS 11372.5)" and "a drug program fee of $205.00, including fine and assessment (HS 11372.7)." These fees were indicated in the court's January 25, 2016 minute order after defendant's terms and conditions were noted.
We agree with the People that the court did not impose these fees as conditions of defendant's probation, but rather imposed them as "additional orders of the court." The record indicates that the order to pay the five challenged fines and fees was a separate order, and not a condition of probation. Nonetheless, to avoid any ambiguities, we will direct the trial court to clarify payment of these fees.
1. Imposition of Cost of Supervision, Court Operations and Conviction Facilities Assessment Fees
Although a trial court may order a defendant to pay for reasonable costs of probation, such costs are collateral and their payment cannot be made a condition of probation. (Pen. Code, § 1203.1b, subd. (b); People v. Acosta (2014) 226 Cal.App.4th 108, 126; People v. Hall (2002) 103 Cal.App.4th 889, 892 (Hall); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 (Brown).) "These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d).)" (People v. Washington (2002) 100 Cal.App.4th 590, 592; see Brown, at p. 322 [An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action]; People v. Hart (1998) 65 Cal.App.4th 902, 907 (Hart) [same].) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (Hart, at p. 907.) Any order for payment of probation costs should be imposed as a separate order. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1068.)
Likewise, "[c]ertain 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.]" (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402-1403 (Pacheco), disapproved on other grounds by People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5, and People v. McCullough (2013) 56 Cal.4th 589, 599.) "The imposition of the court security fee as a condition of probation [is] unauthorized because like probation costs, this fee is collateral to [the defendant's] crimes and punishment and as such, its payment may not be made a condition of probation. [Citations.]" (Pacheco, at p. 1402.) Similarly, the court conviction facilities assessment fee under Government Code section 70373 may not be made a condition of probation. (People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim); People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1414.)
Here, it does not appear the trial court intended to impose the five challenged fees as conditions of defendant's probation. The sentencing memorandum indicates the parties' intent that these fees would be imposed as additional orders of the court, rather than conditions of defendant's probation. Likewise, in the minute order, these fees come after what appears to be the conditions of defendant's probation.
However, to the extent ambiguities exist in the trial court's minute order or sentencing memorandum in this case, we will direct the clerk to modify the minute order to clarify the payment of the challenged fines and fees. (See People v. Anderson (2010) 50 Cal.4th 19, 26 [an unauthorized sentence can be modified at any time, and can be modified by the appellate court without the need for remand]; People v. Soto (2016) 245 Cal.App.4th 1219, 1236, fn. 10 (Soto) [although the defendant failed to object in the trial court, appellate court may correct unauthorized imposition of administrative costs that were imposed as conditions of probation instead of in a separate order].) Contrary to defendant's assertion, the appropriate remedy is not to strike the order to pay the challenged fees. Instead, the imposition of these fees as a condition of probation may simply be modified to be treated as "an order entered at judgment" and to be "enforced as permitted in the relevant statutes." (Hart, supra, 65 Cal.App.4th at p. 907; see Hall, supra, 103 Cal.App.4th at p. 892 ["We simply deem the requirement [to pay probation costs] an order, not a condition [of probation], and proceed to consider other aspects of the court's order"].) We therefore direct the trial court to modify the probation order to eliminate any requirement that defendant pay the costs of probation supervision, the court operations security assessment fee, and the court conviction assessment fee as conditions of probation.
2. Imposition of Drug Laboratory and Drug Program Fees as Conditions of Probation
In their respondent's brief, the People argue that the drug laboratory fee under Health and Safety Code section 11372.5 and the drug program fee under Health and Safety Code section 11372.7 should have been imposed as conditions of probation because they were closely related to the crimes defendant committed, made amends to society for the harm defendant caused, and furthered his rehabilitation. The People reason these two drug costs should be incorporated into defendant's probationary conditions because "[b]oth fines were mandatory here, imposed as a penalty on the crimes [defendant] committed, and were applicable only in this criminal context" where a defendant violates controlled substance laws unlike the "generic assessments applicable to all defendants, like the court operations and court facilities fees." In their supplemental brief, the People assert that Ruiz supports this court's prior conclusion that the drug laboratory and drug program fees are punitive, and thus, appropriately ordered as conditions of defendant's probation.
In his reply brief, relying on Watts, supra, 2 Cal.App.5th 223, defendant asserts that the drug laboratory and the drug program fees cannot be conditions of probation because these fees are not punitive and not subject to a penalty assessment. In his supplemental brief, defendant argues that imposition of the drug laboratory and drug program fees by separate order should not be reversed and that imposition of these fees by separate order from the order of probation conditions is not affected by Ruiz.
We have found no published cases on point addressing the issue of whether payment of a drug laboratory fee under Health and Safety Code section 11372.5 or payment of a drug program fee under Health and Safety Code section 11372.7 can or cannot be a condition of probation. However, as pointed out by defendant, case law has developed which directly addresses whether a monetary "fine" or "fee" can be made a condition of probation. (See, e.g., Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403; Kim, supra, 193 Cal.App.4th at pp. 842-843; Soto, supra, 245 Cal.App.4th at p. 1237.) These cases hold that where the purpose of the fee or fine is nonpunitive, the fine or fee is collateral to the crime and not oriented toward rehabilitation. (Pacheco, at p. 1403; Kim, at pp. 842-843; Soto, at p. 1237; see People v. Vega (2005) 130 Cal.App.4th 183, 194-195 (Vega) ["[f]ines are imposed for retribution and deterrence; fees are imposed to defray administrative costs"], disapproved of by Ruiz, supra, 4 Cal.5th at pp. 1118-1120, 1122, fn. 8 [Supreme Court recently held fees were part of "punishment" provided for in underlying target felony].) Pacheco noted that "[o]ne 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.' " (Pacheco, at p. 1403.) A defendant may be imprisoned for violating a probation condition but not for violating an order to pay fees or costs. (Ibid.) The People apparently agree with Pacheco's statement of the law, but contend the cases on "the punitive nature of the fines are not dispositive because probation conditions are not limited to punitive measures" but defendant's rehabilitation. Although we agree with the People that the purpose of probation is to assist in defendant's reformation and rehabilitation and that these fees were reasonably related to defendant's offenses, the cases on the punitive nature of fines or fees are nonetheless relevant in determining whether the drug laboratory fee and the drug program fee can be imposed as conditions of a defendant's probation.
Under Penal Code section 1203.1, trial courts have broad discretion to impose reasonable conditions of probation that 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 the breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).)
Some fines, including restitution fines, are statutorily required to be imposed as conditions of probation. (Pen. Code, §§ 1202.4, subd. (m), 1203.1, subd. (a)(1) & (2).) The drug laboratory and drug program fees are not expressly mentioned in a statute as appropriately imposed as a probation condition.
Health and Safety Code section 11372.5, subdivision (a), provides: "Every person who is convicted of a violation of [the offenses enumerated therein including Health and Safety Code, sections 11378 and 11379] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law." Under subdivision (b) of that section, the money must be used to pay costs incurred by crime laboratories providing analyses for controlled substances in connection with criminal investigations, to purchase and maintain equipment used by those laboratories, and for continuing education and training of forensic scientists regularly employed by these laboratories.
Health and Safety Code section 11372.7, subdivision (a), provides in pertinent part, "[E]ach person who is convicted of [certain narcotics offenses, including a violation of Health and Safety Code sections 11378 and 11379] shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law." The drug program fee is mandatory, provided the trial court determines the defendant has the ability to pay the fee. (Health & Saf. Code, § 11372.7, subd. (b); People v. Clark (1992) 7 Cal.App.4th 1041, 1050.)
Defendant reported that he was a licensed general contractor. Although the trial court here did not expressly find defendant had the ability to pay the drug program fee, it found defendant had the ability to pay attorney's fees and presentence incarceration costs. The trial court impliedly found defendant had the ability to pay the drug program fee. No express finding as to a defendant's ability or inability to pay is required on the record. (Health & Saf. Code, § 11372.7, subd. (b); People v. Turner (2002) 96 Cal.App.4th 1409, 1414; Martinez, supra, 65 Cal.App.4th at p. 1516; People v. Staley (1992) 10 Cal.App.4th 782, 785.)
Subdivision (b) of section 11372.7 of the Health and Safety Code 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. If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person's financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee." Under subdivision (c)(2) of Health and Safety Code section 11372.7, at least one-third of these funds must be used for drug prevention programs in schools and the community.
The penalty statutes (Pen. Code, § 1464; Gov. Code, § 76000) mandate that a court impose a penalty assessment "upon every fine, penalty, or forfeiture imposed and collected . . . for criminal offenses" with certain exceptions not applicable here. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.)
Penal Code section 1464, subdivision (a)(1), states: "Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, . . . there shall be levied a state penalty in the amount often dollars ($10) for every ten dollars ($10), or part often dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." (Italics added.)
Government Code section 76000, subdivision (a), states: "(1) Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. [¶] (2) This additional penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code. . . . [¶] (3) This additional penalty does not apply to the following: [¶] (A) Any restitution fine. [¶] (B) Any penalty authorized by Section 1464 of the Penal Code or this chapter. [¶] (C) [Certain specified] parking offense[s]. . . . [¶] (D) The state surcharge authorized by Section 1465.7 of the Penal Code." (Italics added.)
When the parties first briefed the present appeal, there was a split of authority as to whether the drug laboratory and drug program fees were intended to be punishment. (See Watts, supra, 2 Cal.App.5th at pp. 229-237 [imposition of additional penalty not permitted]; Sierra, supra, 37 Cal.App.4th at pp. 1694-1696 [additional penalty upheld on drug program fee]; Martinez, supra, 65 Cal.App.4th at p. 1522 [additional penalty required on drug laboratory fee].) Cases like Watts held that the drug laboratory fee is "not punishment." (Watts, at p. 235.) As a result, Watts held the fee was "therefore not a 'fine' or 'penalty' except in certain circumstances." (Ibid.)
However, our high court in Ruiz, supra, 4 Cal.5th 1100 resolved the split amongst the Courts of Appeal and held the drug laboratory fee and the drug program fee are indeed "punishment." (Ruiz, at p. 1122.) In resolving the issue, the Supreme Court found the answer to the question depended on whether the fees under Health and Safety Code sections 11372.5 and 11372.7 were "part of 'the punishment' 'provided for' the underlying target felony. . . ." (Ruiz, at p. 1107, italics added.) This issue in turn depended on the meaning of these two statutes. The high court thus examined in great detail the statutory language of Health and Safety Code, sections 11372.5 and 11372.7, and the legislative intent underlying these statutes. (Ruiz, at pp. 1109-1119.) Based on this exhaustive analysis, the court concluded the Legislature intended the Health and Safety Code sections 11372.5 and 11372.7 assessments to constitute punishment, and not administrative fees. (Ruiz, at pp. 1109-1119.)
In reaching this conclusion, the California Supreme Court disapproved the reasoning of several Court of Appeal decisions. (Ruiz, supra, 4 Cal.5th at pp. 1112-1113, 1122, fn. 8; see People v. Martinez (2017) 15 Cal.App.5th 659, disapproved of by Ruiz, at p. 1122, fn. 8; People v. Webb (2017) 13 Cal.App.5th 486, disapproved of by Ruiz, at p. 1122, fn. 8; Watts, supra, 2 Cal.App.5th 223; Vega, supra, 130 Cal.App.4th 183.) Three of those decisions concerned the issue of whether the penalty statutes apply to require an additional penalty on top of the Health and Safety Code section 11372.5 and section 11372.7 fees. (People v. Martinez, at pp. 662-669; Webb, at pp. 497-499; Watts, at pp. 227-237.) After examining the statutory language and legislative "evolution" of Health and Safety Code sections 11372.5 and 11372.7, the Watts court concluded that the Legislature intended the Health and Safety Code sections 11372.5 and 11372.7 assessments to be administrative fees, rather than punitive measures, and thus held the penalty statutes did not apply. (Watts, at pp. 227-237.) The Martinez and Webb courts adopted Watts's analysis and reached the same conclusion. (People v. Martinez, at pp. 662-669; Webb, at pp. 497-499.) The Ruiz court disagreed, expressly rejecting Watts's reasoning that the criminal laboratory fee " 'is by its nature not punishment and therefore not a "fine" or "penalty" . . . .' " (Ruiz, at p. 1113). The Ruiz court made clear its view that Watts's interpretation of the meaning of Health and Safety Code sections 11372.5 and 11372.7 was inconsistent with the language and legislative history of these statutes. (Ruiz, at pp. 1112-1113.)
Although Ruiz is not directly on point in the context of payment of these fees as conditions of probation, Ruiz provides guidance in this case.
In his appellate briefs (before Ruiz was filed), defendant relied on Watts to contend the drug laboratory and drug program fees were administrative, rather than punitive, measures, and therefore could not be imposed as conditions of probation. In his supplemental brief, defendant contends that Ruiz does not apply because he agrees with this court that these drug fees are appropriate separate orders. However, as the People note, defendant mischaracterizes this court's original opinion. Although we held that the trial court ordered the drug laboratory and drug program fees as separate orders of the court, we agreed with the People that because the drug laboratory and drug program fees were punishment, the fees were appropriate as conditions of defendant's probation in this case.
Defendant's arguments lack merit. Ruiz found that the drug laboratory and drug program fees are punishment subject to penalty assessments, and not administrative fees. (Ruiz, supra, 4 Cal.5th at pp. 1105-1122.) The Ruiz court stated, "it is clear the Legislature intended the fees at issue here to be punishment." (Ruiz, at p. 1122.) Because they were intended to be punishment, the penalty assessments are mandatory. Therefore, in light of the holding in Ruiz, at pp. 1105-1122, and under Pacheco, supra, 187 Cal.App.4th at pp. 1402-1403, the drug laboratory and drug program fees could be imposed as conditions of defendant's probation.
B. Residence Approval Condition
As a condition of probation, defendant was required to "inform the probation officer of [his] place of residence and reside at residence approved by the probation officer." Defendant argues that the term requiring a probation officer's approval of his choice of residence interferes with his rights to privacy and travel and to freedom of association and must be stricken as unconstitutionally overbroad. We disagree.
Probation is a suspension of a sentence and a revocable grant of release conditioned upon supervision by a probation officer. (Pen. Code, § 1203, subd. (a).) Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety. (People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).) Persons placed on probation by a court 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. (Pen. Code, § 1202.8, subd. (a).) " 'Probation is not a right, but a privilege.' " (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.) " '[I]f the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation.' " (People v. Rubics (2006) 136 Cal.App.4th 452, 459 (Rubics), disapproved on another ground as stated in People v. Martinez (2017) 2 Cal.5th 1093, 1099-1104, quoting People v. Miller (1967) 256 Cal.App.2d 348, 356.)
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review their decisions for abuse of discretion. A trial court abuses its discretion when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. (Ibid.) A condition will not be invalidated as unreasonable unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct which is not itself criminal; and (3) it requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); Carbajal, at p. 1121.) The test is conjunctive. All three prongs must be satisfied before an appellate court will find it invalid. (Lent, at p. 486.) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 380 (Olguin).) A condition of probation that enables a probation officer to effectively supervise a probationer is reasonably related to future criminality. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 (Kwizera).)
Where there is a constitutional challenge based on vagueness or overbreadth, and the matter presents a pure question of law that can be resolved without resort to the record, the standard of appellate review is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, not every term which requires a defendant to give up a constitutional right is per se unconstitutional. (People v. Mason (1971) 5 Cal.3d 759, 764-765, overruled on a different point as stated in Lent, supra, 15 Cal.3d at p. 486, fn. 1.) Probation conditions may place limits on constitutional rights if they are reasonably necessary to meet the twin goals of rehabilitation of the defendant and protection of the public. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941 (Bauer).)
As pointed out by the People, defendant did not object to the residence approval condition at issue in the trial court. But where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (In re Sheena K (2007) 40 Cal.4th 875, 888-889 (Sheena K.); Welch, supra, 5 Cal.4th at p. 235.) The forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Sheena K., at pp. 885, 888.) As such, we will only address defendant's overbreadth claim.
"If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355, quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624.) But an otherwise valid condition that impinges upon constitutional rights "must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (Bauer, supra, 211 Cal.App.3d at p. 942, quoting In re White (1979) 97 Cal.App.3d 141, 146 (White); accord, Olguin, supra, 45 Cal.4th at p. 379; Sheena K., supra, 40 Cal.4th at p. 890.)
A probation condition cannot be overbroad. (Olguin, supra, 45 Cal.4th at p. 384; Sheena K., supra, 40 Cal.4th at p. 890.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Defendant argues the probation condition in question violates his rights to travel and to free association. Defendant relies primarily on Bauer, supra, 211 Cal.App.3d 937. We agree that these rights are constitutional and fundamental, and that the conditions curtail them. (Bauer, at p. 944.) However, we do not agree that the conditions violate the rights in the sense that the restrictions imposed are unreasonable or otherwise constitutionally impermissible. (White, supra, 97 Cal.App.3d at p. 146.) Insofar as probation is a grant of supervised release in lieu of confinement, virtually all probation conditions restrict these rights. " 'Inherent in the very nature of probation is that probationers "do not enjoy 'the absolute liberty to which every citizen is entitled.' " [Citation.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.' [Citation.]" (People v. Barajas (2011) 198 Cal.App.4th 748, 753.) Since it is impossible to travel or to associate freely with persons of one's choice from inside a prison cell, probation is generally a great deal for the grantee. If defendant felt otherwise, he was free to refuse probation, and instead serve his sentence. (Rubics, supra, 136 Cal.App.4th at p. 459.)
In Bauer, the reviewing court struck a residence condition apparently designed to prevent the defendant from living with his overprotective parents. (Bauer, supra, 211 Cal.App.3d at p. 944.) Nothing in the record suggested the defendant's home life contributed to the crimes of which he was convicted (false imprisonment and simple assault), or that living at home reasonably related to future criminality. (Ibid.) The court concluded the probation condition impinged on the defendant's right to travel and freedom of association, and was extremely broad since it gave the probation officer the power to forbid the defendant "from living with or near his parents—that is, the power to banish him." (Ibid.)
The present case is distinguishable. Bauer concerned a 26-year-old man who had lived with his parents all his life. There was no evidence that his "exemplary" home life, or his parents, had contributed to his crime in any way. (Bauer, supra, 211 Cal.App.3d at p. 944.) Residing with one's parents, the court noted, is conduct not in itself criminal, and the probation department could not use the condition to "banish" the defendant from his parents. (Id at pp. 943-944.) The situation here is different. Banishment is not an issue. Unlike the condition in Bauer, the residence condition imposed here is not a wolf in sheep's clothing; it is not designed to banish defendant or to prevent him from living where he pleases. Moreover, unlike the defendant in Bauer, where defendant lives may directly affect his rehabilitation, considering his issues with controlled substances. Without a limitation placed by the residence condition or without supervision, for example, defendant could opt to live where drugs are used, sold, or manufactured. A probation officer supervising a person like defendant must reasonably know where he resides and with whom he is associating in deterring future criminality.
The residency condition is necessary under these circumstances to aid in defendant's rehabilitation, and not to banish defendant from any geographic region. The residency condition properly serves the state's interest in reformation and rehabilitation because where he lives will directly affect his rehabilitation. The nature of defendant's crimes suggests a need for oversight. Defendant in this case partly used his home to commit his crimes. He was transporting and selling methamphetamine to and from his home. Where he lives will directly affect his rehabilitation. Like the court in Bauer, we do not find that the condition itself is inappropriate in all circumstances (see Bauer, supra, 211 Cal.App.3d at p. 944 [finding residence approval condition not related to the defendant and his crimes in the case, but not invalidating the condition in every case]), but that such approval here was warranted as the requirement relates to defendant's future criminality and crimes.
Furthermore, the legal landscape has changed since Bauer, supra, 211 Cal.App.3d 937. Bauer was decided before our Supreme Court's decision in Olguin, supra, 45 Cal.4th 375, which held that a "condition of probation that enables a probation officer to supervise his or her charges effectively is . . .'reasonably related to future criminality.' " (Id. at pp. 380-381.) In Olguin, the defendant challenged a condition of probation requiring him to notify his probation officer of the presence of any pets at his residence. In part, the defendant challenged the condition on reasonableness grounds. The Supreme Court rejected the defendant's arguments, noting that "[t]he condition requiring notification of the presence of pets is reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation." (Id. at p. 381.)
The Supreme Court in Olguin, supra, 45 Cal.4th 375 also stated that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (Id. at p. 382.) We view the residence approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383.) A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant's place of residence. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order. (See, e.g., Kwizera, supra, 78 Cal.App.4th at pp. 1240-1241 [a case concerning a condition requiring a probationer to obey directions from his probation officer].)
Moreover, as previously observed, "probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 384.) "If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.]" (Id. at p. 379.) In sum, although the residency condition may restrict his movements and his choice of places to live, requirement that defendant obtain his probation officer's approval of his residence is not unconstitutionally overbroad.
IV
DISPOSITION
We direct the clerk of the Riverside Superior Court to modify its minute order for the hearing held January 25, 2016, to clarify that the payment of costs of probation supervision, the court operations security assessment fee, and the court conviction assessment fee are not a condition of probation, but a separate court order. We will further direct the clerk of the Riverside Superior Court to modify its January 25, 2016 minute order to clarify that payment of the drug laboratory fee under Health and Safety Code section 11372.5 and the drug program fee under Health and Safety Code section 11372.7 are conditions of defendant's probation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.