Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF027923. Carol D. Codrington, Judge.
Thein Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P.J.
Defendant, James Jay Patrick, pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the trial court placed him on three years of formal probation. In this appeal, defendant challenges the conditions of probation restricting him from associating with persons on parole or probation, and requiring him to obtain his probation officer’s approval of his residence and consent prior to moving his residence. Defendant further argues that the laboratory analysis and drug program fees assessed to him are incorrect and must be modified. As discussed below, we agree with defendant that: 1) the parole condition regarding associating with persons on parole or probation must be modified to include a knowledge requirement; and 2) the laboratory analysis fee is incorrect and should be modified to $163. We also conclude that the parole condition regarding residence approval should be modified to require defendant to notify the probation officer of his residence address and any changes In residence. In all other respects, the judgment is affirmed.
All further section references are to the Health and Safety Code unless otherwise indicated.
Statement of Facts and Procedure
On February 24, 2009, Lake Elsinore police received a report of a suspicious person talking to children at an apartment complex and asking to use the non-existent Jacuzzi spa. On his way to the apartment complex, a police officer noticed defendant driving a vehicle matching the description of the suspicious person’s vehicle. The officer conducted a traffic stop and pulled defendant over.
The officer noticed defendant seemed “extremely nervous” and was sweating and speaking rapidly. The officer believed defendant was under the influence of a controlled substance and arrested him. The officer searched defendant’s car and found 3.9 grams of methamphetamine and smoking pipes with white residue. Defendant also had 0.5 grams of methamphetamine on his person.
Defendant initially pled not guilty to possession of methamphetamine, misdemeanor under the influence of a controlled substance (§ 11550, subd. (a)), and misdemeanor possession of drug paraphernalia (§ 11364). After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5) based on unlawful detention and search, defendant withdrew these pleas and pled guilty to the felony possession charge.
The trial court placed defendant on three years formal probation, on condition he participate in a substance abuse program. (Pen. Code, § 1210.1.) The court also imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $200 probation revocation fine (Pen. Code, § 1202.44), a $298 laboratory analysis fine (§ 11372.5), and a $298 drug program fine (§ 11372.7), among other fines. This appeal followed.
Discussion
1. Probation Condition Restricting Association with Probationers and Parolees
Defendant argues that the condition of probation ordering him not to “associate with any unrelated person known to be a possessor, user or trafficker of controlled substances nor any unrelated person on probation or parole” is constitutionally overbroad. This is because the condition does not contain a knowledge requirement regarding whether a person is on probation or parole. The People agree that this condition is overbroad, citing In re Sheena K. (2007) 40 Cal.4th 875. We agree, and thus order the trial court to modify this condition to read “[n]ot associate with any... unrelated person known to be on probation or parole.”
2. Probation Condition Requiring Approval of Residence and Consent to Move
Defendant also challenges the condition of his probation that he “[r]eside at a residence approved by the Probation Officer and not move without prior consent of the Probation Officer” for being constitutionally overbroad.
Courts have broad discretion to impose conditions of probation that foster rehabilitation or protect public safety. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The California Supreme Court has clarified the review of probation conditions on appeal. It held, “We review conditions of probation for abuse of discretion. [Citations.] Generally ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” [Citation.]’ [Citation.] This test is conjunctive - all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) In other words, “even 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. [Citation.]” (Id. at p. 380.)
In People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer) the defendant was found guilty of false imprisonment and assault. He was placed on probation with a condition that he “obtain his probation officer’s approval of his residence....” (Id. at p. 940.) Bauer held this condition failed the requirements for probation conditions, as it was not related to the defendant’s crime and was not related to future criminality. (Id. at p. 944.) The Bauer court went on to hold that the probation condition was “all the more disturbing” because it impermissibly impinged on the defendant’s constitutional rights to travel and of freedom of association. (Ibid.) The condition was not narrowly tailored to interfere as little as possible with these important rights, but rather gave the probation officer broad power over the defendant’s living situation. (Id. at pp. 944-945.)
Here, there is nothing in the record referring to defendant’s living situation. Defendant was convicted of felony possession of methamphetamine. There is no indication that his home life contributed to the offense. We can see a situation where the probation condition might be necessary because a probationer’s residence was somehow involved in the crime or due to the nature of the crime, e.g. a sex offender who is mandated to live in certain areas, but in this case, the condition was not in any way related to defendant’s offense. 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 was not related to defendant’s crime and living situation in this case.
Further, the condition is not reasonably related to defendant’s future criminality. In this case, there is no indication that he was living or planned to live with those who might impede his rehabilitation. It is mere speculation to believe he might move to an undesirable location or live with others who might influence his criminal behavior. Imposing the residence approval condition was unreasonable here.
The People rely on Olguin to claim that this court should find that Bauer was wrongly decided and that the residence approval condition is related to future criminality. They claim Olguin expanded future criminality to include the ability of the probation officer to supervise the probationer in order to facilitate rehabilitation.
In Olguin, the Supreme Court reviewed a condition of probation that required the probationer to inform the probation officer of any pets owned by the probationer and to inform the probation officer within 24 hours of any changes. (Olguin, supra, 45 Cal.4th at p. 380.) The Supreme Court found that although the condition was not related to the crime the defendant committed, it was reasonably related to the supervision of defendant and, therefore, to his rehabilitation and future criminality. The court held, “[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.... [T]o ensure that a probationer complies with the terms of his or her probation and does not reoffend, a probation officer must be able to properly supervise that probationer. Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence.... Therefore, the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.” (Id. at p. 381.)
The condition at issue here is unlike that in Olguin, where the probationer only needed to notify the probation officer of a pet in the home and did not need approval to have a pet in his home. Several times the Olguin court distinguished the condition from one that would require approval of a pet by the probation officer. (See Olguin, supra, 45 Cal.4th at pp. 383, 385.) On these grounds alone, we find Olguin inapplicable, as it did not even consider a situation where the probation officer must approve a pet, much less a residence.
Further, the People claim the condition assists in a probation officer’s supervision of a probationer. They claim it would “substantially impede” a probation officer’s ability to supervise defendant it he moved to a “remote or hard to reach location....” This is pure speculation. Nothing suggested that defendant had any intention of moving, much less to a hard-to-reach location.
The People attempt to extend the finding in Olguin by arguing that who a defendant lives with could impact the safety of the probation officers and impede rehabilitation, as when a drug offender moves in with drug users. We agree with the People that in some situations, in order to adequately supervise a defendant, the probation officer may need to approve his or her residence. However, in this case, there was no indication defendant had a history of moving or living with people who use drugs and no indication that he planned to move. Further, this concern is adequately addressed by the condition that defendant not associate with known drug users. The instant probation condition thus was not reasonably related to appellant’s future criminality.
Because defendant’s living situation has not been shown to be reasonably related to future criminality and because there is no nexus between these circumstances and the instant offense, the court abused its discretion in imposing this condition.
However, we do see the benefit of the probation officer being informed if defendant’s residence has changed. We have the power to modify a probation condition on appeal. (See In re Sheena K., supra, 40 Cal.4th at p. 892; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) We believe that the condition should be modified to read as follows: “Keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.”
3. Laboratory Analysis Fee
The trial court imposed a $298 laboratory analysis fee pursuant to section 11372.5, which included various penalty assessments that the trial court did not enumerate. Defendant contends the $298 total fee was incorrect, and proposes that a total fee of $180 is the correct fee, broken down as follows:
$50 - basic criminal laboratory analysis fee (§11372.5, subd. (a))
$50 - penalty assessment (Pen. Code, §1464, subd. (a)(1))
$35 – penalty assessment (Gov. Code, § 76000, subd. (a)(1))
$10 – penalty assessment (§ 76000.5, subd. (a)(1))
$10 – state surcharge (Pen. Code, § 1465.7, subd. (a))
$15 – state court construction penalty (Gov. Code, § 70372, subd. (a)(1))
$ 5 – DNA penalty (Gov. Code, § 76104.6, subd. (a)(1))
$ 5 - DNA state-only penalty (Gov. Code, §76104.7, subd. (a))
In response, the People agree that the laboratory analysis fee was miscalculated, but proposes that a total fee of $163 is the correct fee, broken down as follows:
$50 - basic criminal laboratory analysis fee (§ 11372.5, subd. (a))
$50 - penalty assessment (Pen. Code, §1464, subd. (a)(1))
$35 – penalty assessment (Gov. Code, § 76000, subd. (a)(1))
$10 – state surcharge (Pen. Code, § 1465.7, subd. (a))
$13 – state court construction penalty (Gov. Code, § 70372, subd. (a)(1))
$ 5 – DNA penalty (Gov. Code, § 76104.6, subd. (a)(1))
The difference between the two totals is that the People do not include the $10 penalty assessment under Government Code section 76000.5, subdivision (a)(1) or the $5 state-only penalty under Government Code section 76104.7, subdivision (a), and include a $13 state construction penalty (Gov. Code, § 70372, subd. (a)(1)) instead of a $15 penalty. Because the People concede that the various fees and assessments were improperly calculated, and in fact propose a lesser fee than does defendant, and because defendant does not object to this lesser amount, we order the trial court to modify the laboratory analysis fee to $163.
4. Drug Program Fee
The trial court also imposed a $298 drug program fee pursuant to section 11372.7, which also included various penalty assessments that the trial court did not enumerate. Defendant contends the $298 total fee was also incorrect, because it is reasonable to infer that the trial court intended to impose a $50 fee, plus appropriate penalties and assessments, for each program, rather than a $50 fee for the laboratory analysis and a higher fee for drug program. Section 11372.7, subdivision (a), requires the court to impose a “drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense... in addition to any other penalty prescribed by law.” Subdivision (b) of this section allows the court to waive this fee if the person does not have the ability to pay, or to set a fee lower than $150 if the court believes the lower amount is “reasonable and compatible with the person’s financial ability.”
Although we find some logic to defendant’s argument, we ultimately find that defendant did not establish that the court erred when it imposed the drug program fee in the amount of $298. In People v. Martinez (1998) 65 Cal.App.4th 1511, an appellate court determined that “a trial court may, without expressly so stating, and taking into account any fine or restitution amount imposed, conclude that a defendant does not have the ability to pay a drug program fee.... [O]n a silent record, we presume the trial court resolved those issues in favor of not imposing the fee. [Citations.]” (Id. at p. 1517; see also People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414, fn. 2 [“‘[w]e presume the trial court found an inability to pay, because the trial court is not required to state such a finding on the record; therefore, the prosecutor’s failure to object to omission of the [drug program] fee waives the People’s claim of error on appeal’”].) In this same vein, we must presume the trial court properly resolved the issue of ability to pay in favor of imposing the fee in an amount that, with associated penalty assessments, totals $298. As set forth above, section 11372.7, subdivision (b), directs the trial court to consider the defendant’s financial ability to pay and, having done so, “set the amount to be paid.” (§ 11372.7, subd. (b).) Here, setting the drug program fee in the amount of $298, including the penalty assessments, was within the trial court’s discretion, and we will not disturb it absent more convincing evidence that the trial court intended a lower fee or calculated it incorrectly.
Disposition
The trial court is ordered to modify Probation Condition Number 5 to read “[n]ot associate with any... unrelated person known to be on probation or parole.” The trial court is also ordered to modify Probation Condition Number 12 to read “Keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.” Finally, the trial court is ordered to modify the amount of the laboratory analysis fee to $163. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J, KING J.