Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F07576
ROBIE, J.
Defendant Victor Alfonso Sanchez-Millan pled no contest to having sexual intercourse with a minor more than three years younger than him (two counts) and contributing to the delinquency of a minor (two counts) and was placed on probation. Over his objection, the trial court ordered him to register as a sex offender under Penal Code section 290.006. Without objection, the court imposed a condition of probation prohibiting him from “be[ing] in the presence of any minor under the age of 18 without a responsible adult present as approved by the probation officer.”
All further section references are to the Penal Code.
On appeal, defendant contends he was prejudicially deprived of his right to a jury trial on the fact necessary to impose a sex offender registration requirement under section 290.006. He also contends the court erred in imposing the registration requirement because there was no evidence he was a sexual predator. He challenges the probation condition as unconstitutionally vague and overbroad, and he contends the minute order from sentencing must be corrected as to certain fees and fines.
We agree the probation condition must be clarified and narrowed to avoid constitutional infirmity and certain corrections must be made to the minute order. Otherwise, however, we find no merit in defendant’s arguments. Accordingly, we will direct the trial court to correct the minute order and modify the probation condition and will affirm the judgment (order granting probation) as modified.
FACTUAL AND PROCEDURAL BACKGROUND
According to the police report (as recounted in the probation report), defendant was a 23-year-old United States Marine recruiter when he met the 17-year-old victim at a job fair at her high school in Placer County. Several days after the victim provided defendant with her contact information, he sent her several messages on her “My Space” account, then had her pulled out of class so he could set up a testing appointment for her at the Marine Corps office in Roseville. He took her from her house to the testing site in his uniform and government vehicle, then when the test was over gave her a teddy bear, told her she was cute, and asked her if she had a boyfriend.
The probation report notes defendant’s admission that “the offense report was accurate,” and defendant did not contend otherwise at sentencing.
Several days later, defendant began sending more messages to the victim on her “My Space” account, telling her how beautiful she was and asking her out for lunch. When she told him she did not know if the school would let her out, he told her they would because he was a Marine. He began taking her to lunch and to the movies, sometimes picking her up at school and sometimes at a park near her house. The relationship eventually progressed from hugging and kissing to sexual intercourse.
When the victim told defendant she thought their relationship “wasn’t right,” he told her he was serious and wanted her to be his girlfriend. He told her he lived in Stockton with his mother and sister and did not have a girlfriend, when in fact he was married and the father of a young child.
After the first incident of sexual intercourse at a motel in Sacramento, the victim told defendant it was probably not a good idea for them to continue seeing each other. Defendant told her Marines were not quitters, and everything would change when she turned 18.
During their relationship, defendant furnished the victim with beer and rum. On one occasion he convinced her to have sexual intercourse with him in his car in a housing construction zone on the way home from a presentation.
Eventually, the victim’s stepfather confronted the victim with a phone bill showing numerous phone calls between her and defendant. He reported the matter to the Lincoln police in August 2008, and an investigation involving police detectives and Marine investigators followed. At first defendant denied having sexual intercourse with the victim, but he admitted taking her to the motel and providing her with alcohol. When confronted by a Marine captain, however, defendant admitted having sexual intercourse with the victim on four separate occasions, including twice at a motel and once at the victim’s residence.
According to the victim, defendant “really had the skills to mess with [her] head and manipulated [her] like [she] was a part of his game.” (Italics omitted.)
Defendant was charged in Sacramento County with two counts of engaging in an act of unlawful sexual intercourse with a minor who was not his spouse and who was more than three years younger than him, two counts of contributing to the delinquency of a minor, and one count of participating in an act of sexual penetration with a minor. By agreement, he pled no contest to the first four counts in exchange for a grant of probation with a year in jail and dismissal of the remaining count. Whether the trial court would require defendant to register as a sex offender under section 290.006 was expressly reserved for argument at sentencing.
Other related charges in Placer County also were dismissed as a result of defendant’s plea in this case, although not as an express part of the plea agreement.
“Any person ordered by any court to register pursuant to the [Sex Offender Registration] Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.” (Pen. Code, § 290.006.)
In advance of the sentencing hearing, defendant filed a sentencing statement arguing that the imposition of a sex offender registration requirement based on facts found by the trial court would violate his constitutional right to a jury trial. He also argued that, in any event, the court should exercise its discretion not to require him to register as a sex offender.
The probation report proposed that, as one of the conditions of probation, defendant “not be in the presence of any minor under the age of 18 without a responsible adult present as approved by the probation officer.” (We will refer to this as probation condition No. 3.)
At the sentencing hearing, defendant offered no objection to the proposed probation conditions, which he admitted he had reviewed and understood, and he asked the court not to impose the sex offender registration requirement based on his previously filed documents. The district attorney argued that defendant should be required to register as a sex offender.
The court found that “this crime was a result of sexual compulsion and sexual gratification on [defendant’s] part” and “because of the number of incidents, [defendant is] a predator.” “[F]or the safety of society and for the young ladies under the age of 18 years,” the court required defendant to register as a sex offender. The court also imposed probation condition No. 3 as recommended in the probation report.
Defendant timely appealed.
DISCUSSION
I
Right To Jury Trial
Subdivision (b) of section 3003.5, enacted as part of Jessica’s Law in 2006, provides that “[n]otwithstanding any other provision of law, it is unlawful for any person for whom [sex offender] registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.”
Defendant contends this residency restriction makes sex offender registration “punishment,” and thus the facts required for the trial court to impose a sex offender registration requirement on him under section 290.006 had to be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and its progeny. Because no such jury finding was made here, defendant contends he “is entitled to a reversal of his registration conviction,” which we take to mean the sex offender registration requirement should be stricken from the judgment.
Given that defendant expressly agreed the court would decide at sentencing whether to require him to register as a sex offender under section 290.006, there is reason to question whether defendant forfeited his Apprendi argument. We will assume for the sake of argument, however, that there was no forfeiture, and that defendant is correct in claiming the trial court erred In requiring him to register as a sex offender without having a jury find the predicate facts required to impose a registration requirement under section 290.006. We will also, for the sake of argument, assume that the People’s ripeness challenge to this argument is not well taken. Thus, the question becomes whether the failure to submit the factual issue to a jury was prejudicial. It was not.
Defendant acknowledges the error he asserts “is not reversible per se” and that under People v. Sandoval (2007) 41 Cal.4th 825 the test for prejudicial error is whether we are convinced beyond a reasonable doubt that a jury would have made the factual finding necessary for the court to impose the sex offender registration requirement on him under section 290.006. We are.
As our Supreme Court explained about applying the predecessor statute to section 290.006 (former section 290, subdivision (a)(2)(E)), “the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197.)
Thus, the only factual finding section 290.006 requires before the trial court can exercise its discretion to impose a sex offender registration requirement is a finding “that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.” Here, defendant contends we cannot conclude beyond a reasonable doubt that a jury would have made this finding, but he does not offer any explanation of why this is so beyond this bald assertion. This omission is understandable, because frankly it strains credulity to suggest there is any doubt, let alone reasonable doubt, about whether a jury would have found he had sexual intercourse with the victim “as a result of sexual compulsion or for purposes of sexual gratification.” Certainly defendant has suggested no other possible reason for having sex with the victim, and he did not claim any other reason in the declaration he filed for the sentencing hearing. Accordingly, even assuming it was error for the court, instead of a jury, to make the factual finding required by section 290.006, that error was harmless beyond a reasonable doubt.
II
Substantial Evidence
Focusing on the trial court’s statement that he was a “predator,” defendant contends the trial court erred in ordering him to register as a sex offender because “there was no substantial evidence that preponderates toward [him] being a sexual predator sufficient to trigger such an onerous requirement as lifetime sex offender registration.” We disagree.
As a threshold matter, we first address the People’s argument that defendant forfeited this claim because he did not argue in the trial court that the evidence was insufficient to support imposition of the sex offender registration requirement. We are not persuaded. In papers filed before the sentencing hearing, defendant thoroughly argued the issue of whether the facts justified requiring him to register as a sex offender. When the trial court disagreed, and explained why, defendant did not have to offer further argument to preserve the issue for appellate review.
As for whether there was substantial evidence in the record to support the trial court’s imposition of the registration requirement, we conclude there was. As with any review for sufficiency of the evidence, we examine the whole record in the light most favorable to the determination under review to determine whether it discloses evidence that is reasonable, credible, and of solid value supporting the determination. (See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 245.) We find that evidence here in the undisputed recounting from the police report of how defendant systematically pursued the minor victim, taking advantage of his status as a uniformed Marine and the minor’s apparent interest in serving in the Marines, and luring her inexorably into clandestine sexual encounters against her own misgivings and better judgment.
Defendant suggests that because there was no evidence he has ever preyed on any other minor female, or “used his status as a marine recruiter to entice [any] other young woman,” we must conclude there was no substantial evidence that he is a “predator” for whom sex offender registration is appropriate. But defendant points to no authority supporting this suggestion, and we are not prepared to conclude that the absence of evidence of any other sexual impropriety with a minor forecloses the imposition of a sex offender registration requirement. While we acknowledge that “[w]here registration is discretionary,... one consideration before the court must be the likelihood that the defendant will reoffend” (People v. Garcia (2008) 161 Cal.App.4th 475, 485), we do not believe that multiple offenses against different victims absolutely must be shown before a court can reasonably find a likelihood of reoffending.
Viewed in the light most favorable to the trial court’s decision, and not in the light most favorable to defendant -- which is how he insists on presenting the case -- the evidence reasonably supports the trial court’s implicit determination that defendant preyed on the victim -- a high school student -- by systematically pursuing her, despite their age difference and her misgivings, for the purpose of engaging in a sexual relationship with her. This was not a one-time indiscretion, but a considered course of duplicitous conduct over a period of months, supported by outright lies about his marital status and deliberate efforts to use his status as a Marine and the victim’s apparent desire to be a Marine to prevent her from ending the relationship. The evidence also reasonably supports the trial court’s implicit concern that, based on his conduct toward this victim, defendant poses a sufficient risk of preying on other such victims as to justify requiring him to register as a sex offender so that he “shall be readily available for police surveillance at all times” (the purpose of the registration requirement). (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825.)
For example, citing only his own declaration, defendant suggests he is not a predator because all he did was become “enamored by this 17½-year[-old] female, got to know her through and because of his job as a marine recruiter, found her attractive and learned that they had many things in common including their Hispanic culture, and began to have feelings for her.”
For the foregoing reasons, we conclude the trial court did not err in requiring defendant to register as a sex offender.
III
Probation Condition No. 3
Defendant contends probation condition No. 3, which prohibits him from “be[ing] in the presence of any minor under the age of 18 without a responsible adult present as approved by the probation officer,” is unconstitutionally vague and/or overbroad and is not reasonably related to the offense for which he was convicted. We agree in part.
Defendant did not object to probation condition No. 3 in the trial court, but the People acknowledge his constitutional challenges to that condition for vagueness and overbreadth were not forfeited despite that failure. (See In re Sheena K. (2007) 40 Cal.4th 875, 888.)
Under Sheena K., “the underpinning of the vagueness challenge is the due process concept of ‘“fair warning.”’ [Citation.] The vagueness doctrine ‘bars enforcement of “‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”’” (People v. Turner (2007) 155 Cal.App.4th 1432, 1435.)
Relying on Sheena K. and Turner, defendant contends probation condition No. 3 is unconstitutionally vague because it lacks a knowledge requirement, i.e., he “may reasonably not know whether he or she is associating with someone under the age of 18.” The People acknowledge that “the principles announced in Sheena K. may well require that an express knowledge requirement be added to the probation condition” and thus agree the condition “should therefore be modified to read: [¶] Defendant not be in the presence of any person he knows or reasonably should know is under the age of 18 without a responsible adult present as approved by the probation officer.” We accept this concession and will direct the trial court to modify the probation condition accordingly.
With this modification, the People contend defendant’s remaining challenges to the condition are without merit. Defendant disagrees. First, he contends the phrase “‘without a responsible adult present’” is unconstitutionally vague because it is an “‘inherently imprecise and subjective standard.’” The People contend this court rejected a similar argument in Turner.
In Turner, the defendant challenged a probation condition that he “‘[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult’” as unconstitutionally vague because “the phrase ‘responsible unrelated adult’... does not define who is a responsible adult and to whom that adult must be related.” (People v. Turner, supra, 155 Cal.App.4th at pp. 1435, 1436.) This court concluded that “[g]iven the purpose of the probation condition, protecting children from defendant, it is clear this phrase refers to an adult responsible for the minor with whom defendant wishes to associate. Once this is understood, it is equally clear that the responsible adult cannot be related to the defendant.” (Id. at p. 1436.) The court modified the probation condition to clarify that the responsible adult must be unrelated to defendant and found the condition constitutional as modified. (Ibid.)
Relying on Turner, the People argue here that “without a responsible adult present” “means precisely that [defendant] cannot be in the presence of a person under the age of 18 without a responsible adult present [who] has been approved by his probation officer. Put another way, if [defendant] wishes to be in the presence of a person under the age of 18 an adult approved by his probation officer must be with him.”
We agree with the People that this aspect of probation condition No. 3 is not unconstitutionally vague. Whereas the phrase challenged in Turner was sufficiently specific when understood to refer to an adult responsible for the minor with whom the defendant was associating, the phrase challenged here is sufficiently specific when read in conjunction with the phrase that follows it -- “as approved by the probation officer.” The probation officer will determine who qualifies as a responsible adult, and thus defendant has been put on fair notice that he cannot be in the presence of someone he knows or reasonably should know is a minor unless he is with an adult who has been approved by his probation officer.
Defendant next argues that the phrase “in the presence of” is “irreparably overbroad” because it “can include otherwise innocuous or innocent conduct.” He contends he “could unwittingly be ‘in the presence of’ people he doesn’t know are minors... just by going to work, church, the movies with his family, or standing in line at the grocery store.”
The People contend this concern is obviated by including an express knowledge requirement in the probation condition. But defendant argues that even if he knows who is a minor, the restriction is overbroad because it “curtails not only [his] freedom of association but compels him to waive his freedom of movement without achieving or being reasonably related to any legitimate rehabilitative purpose. Indeed, [defendant] cannot possibly be expected to become employed and reintegrate into and become a functioning and productive member of society and not at some point be ‘in the presence of’ someone” under the age of 18 without a responsible adult approved by his probation officer being present.
“Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) A probation condition may be impermissibly overbroad if it impinges on the constitutional rights of travel and freedom of association. (People v. Bauer (1989) 211 Cal.App.3d 937, 944.)
We agree with defendant that prohibiting him from “be[ing] in the presence” of any minor unless he is with an adult approved by his probation officer is overbroad because it restricts him from having even a brief, benign, or casual contact with a minor, and such a restriction has no reasonable relationship to a compelling state interest in reformation and rehabilitation given the nature of defendant’s crimes. The state’s legitimate interests are adequately protected by prohibiting defendant from associating with, rather than merely being in the presence of, minors without the presence of an adult approved by his probation officer. Accordingly, we will direct the trial court to modify probation condition No. 3 in this respect as well.
Defendant next contends the condition is unconstitutionally overbroad because it limits his contact with “any minor.” He contends “there is absolutely no evidence in this record that [he] is a threat to younger children much less minor males.”
We agree that given the nature of defendant’s crimes -- a sexual relationship with a 17-year-old girl -- including male children within the scope of probation condition No. 3 has not been shown to serve a compelling state interest in reformation and rehabilitation, and we will narrow the condition accordingly.
Defendant also contends the condition must be narrowed to exclude his own child, as well as other family members, because of the lack of any evidence that he poses a threat to any such child. Again, we agree. Restricting defendant from associating with his own child or other children to whom he is related unless an adult approved by his probation officer is present does not serve a compelling state interest in reformation and rehabilitation given the nature of his crimes. Thus, we will direct the trial court to narrow the condition accordingly.
To the extent defendant challenges the terms of probation condition No. 3 as invalid under the test from People v. Lent (1975) 15 Cal.3d 481, that challenge is moot because all of his concerns in that regard have been resolved by narrowing the condition to prevent constitutional overbreadth.
IV
The Residency Restriction
Interspersed amongst defendant’s argument about the unconstitutionality of probation condition No. 3 are several undeveloped assertions that imposing the residency restriction of Jessica’s Law on him as part of the sex offender registration requirement is also unconstitutional. The closest defendant comes to actually developing any argument targeting the residency restriction, however, is his assertion that “[t]he... Jessica’s Law residency requirement prohibiting him from living near a school or park when he has a pre-school age child is not reasonably related to the charges for which he pled no contest.”
This is not sufficient. Our courts make it clear that “every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) “‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
Defendant offers no authority that would allow us to modify or strike the sex offender registration requirement the trial court imposed on him based on the alleged unconstitutionality of the residency restriction that the People, through Jessica’s Law, made part of that requirement, particularly when he failed to raise this argument in the trial court and he has not yet been subjected to enforcement of that restriction (raising the issue of ripeness). His cite to Turner is unavailing because that case involved the constitutionality of a probation condition imposed by the trial court, and neither the registration requirement in general, nor the residency restriction in particular, was imposed on defendant as a condition of probation. Absent any other authority, and any principled argument, this issue has been forfeited.
V
Fines And Fees
The probation report recommended that defendant be ordered to pay: (1) a $400 restitution fine under section 1202.4 (item No. 7); (2) interest on victim restitution if the restitution was $50 or more (item No. 9); (3) a $263.85 main jail booking fee (item No. 12); (4) an $80 court security surcharge fee (item No. 13); and (5) a $25 administrative screening fee (item No. 14). The probation report also provided that “[i]f there are reimbursable costs to the County in the disposition of this case for... presentence investigation, probation supervision or incarceration, it is recommended the defendant be ordered to report to the Department of Revenue Recovery for a financial evaluation and recommendation of ability to pay such costs. [¶] Cost of investigation and presentence report $702.00; monthly cost of probation $46.00....”
At the sentencing hearing, the court ordered defendant to pay restitution in an amount to be determined and ordered payment of a $200 restitution fine, but then said, “due to your limited income we’ll delete items 12 and 14.” Later, in closing, the court said, “That will be the order. No further court costs.”
The written minute order and order of probation, however, does not accurately reflect what the court ordered at the hearing. Instead, the order is written to conform with the recommendations in the probation report and thus purports to order defendant to pay a $400 restitution fine under section 1202.4, interest on victim restitution if the restitution was $50 or more, a $25 administrative screening fee, an $80 court security surcharge fee, and a $263.85 main jail booking fee. The order also orders defendant to report for a financial evaluation and recommendation of ability to pay $702 for the presentence report and $46 per month for probation supervision.
Defendant contends that with the exception of the court security surcharge, which he admits is mandatory, “the various fines and fees must be stricken” because the oral pronouncement controls over the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2) and because “orders to pay ‘costs of probation,’ including costs of preparation of presentence report and probation supervision, may not be made conditions of probation as was done here.”
The People concede the amount of the restitution fine shown in the minute order must be corrected because the court ordered only a $200 fine. They also concede the $25 administrative screening fee and the $263.85 main jail booking fee must be stricken because these were the items the court specifically deleted. We agree.
As for the interest on victim restitution, the People contend this part of the minute order does not require correction because it “does not impose a separate fine or penalty, but [only] outlines [defendant]’s responsibilities if the restitution amount in this case, which had not yet been determined, exceeded $50.”
Section 1214.5, subdivision (a), which was the source of this provision, provides that “[i]n any case in which the defendant is ordered to pay more than fifty dollars ($50) in restitution as a condition of probation, the court may, as an additional condition of probation since the court determines that the defendant has the ability to pay, as defined in Section 1203.1b(b), order the defendant to pay interest at the rate of 10 percent per annum on the principal amount remaining unsatisfied.”
The People’s argument that this provision in the minute order merely “outlines [defendant]’s responsibilities if the restitution amount in this case... exceeded $50” fails to account for the fact that an order for interest under section 1214.5 is optional, not mandatory. The statute makes clear that the court “may... order the defendant to pay interest” if the amount of victim restitution is $50 or more “since [in such a case] the court determines that the defendant has the ability to pay.” (§ 1214.5, subd. (a).) In other words, if the court determines the defendant has the ability to pay $50 or more in restitution, then the court can, based on the same determination of ability to pay, order the defendant to pay interest as well.
Here, the trial court did not make a determination of defendant’s ability to pay any particular amount of restitution, but ordered that he “[m]ake restitution to the victim in an amount to be determined, keeping in mind if you do not agree with whatever they think you owe, you have the right to come back to court, [and] we’ll conduct a hearing to make the final decision in that regard.” There is nothing in the reporter’s transcript suggesting the court intended to exercise its discretion to order defendant to pay interest in the event the amount of restitution ultimately ordered was $50 or more. On the contrary, the court’s comment, “No further court costs,” suggests the opposite. Accordingly, we agree this provision must be stricken from the minute order as inconsistent with the oral pronouncement of judgment.
That leaves us with the provision in the minute order that provides as follows: “Defendant shall report to the Department of Revenue Recovery for a financial evaluation and recommendation of ability to pay costs for and in the amount of $702.00 for the presentence report and $46.00 per month for probation supervision, payable through the Court’s installments process.”
The People contend this provision “imposes no current [financial] obligation on” defendant and therefore should not be stricken. Defendant contends the provision must be stricken because the court did not order it at sentencing and in any event it involves a determination of ability to pay “which the court impliedly found by this silent record.”
This provision derives from subdivision (a) of section 1203.1b, which provides as follows: “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies. The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Italics added.)
By ordering defendant to “report to the Department of Revenue Recovery for a financial evaluation and recommendation of ability to pay costs for and in the amount of $702.00 for the presentence report and $46.00 per month for probation supervision,” the minute order did no more than comply with the statutory obligation imposed on the court by subdivision (a) of section 1203.1b. While it is true the Department of Revenue Recovery will inquire into defendant’s ability to pay, no determination of ability to pay has yet been made, and more importantly under section 1203.1b an order to report for an inquiry into defendant’s ability to pay is not itself contingent on the court first making a determination of ability to pay. Instead, it is a mandatory order that the court “shall” make, period, and to the extent the court here failed to make it as part of the oral pronouncement of judgment, the court erred.
Defendant contends that the provision in the minute order “that the costs of $702 and $46 have already been predetermined is completely contrary to statutory authority.” Not so. To the extent the costs have already been determined, they were determined by the probation department and included in the probation report. More importantly, however, whatever the costs may have been, no determination has yet been made of “the amount of payment.” Thus, it still remains to be determined what portion of these costs, if any, defendant has the ability to pay. This is completely consistent with section 1203.1b. Also, because defendant has not yet been ordered to pay any “costs of probation,” defendant’s assertion that the payment of such costs “may not be made conditions of probation as was done here” rings hollow as well. Accordingly, we agree with the People that this provision should not be stricken from the minute order.
DISPOSITION
The trial court is directed to correct and modify the minute order and order of probation filed December 15, 2008, as follows: (1) reduce the restitution fine pursuant to section 1202.4 from $400 to $200; (2) delete the paragraph requiring defendant to pay interest on restitution of $50 or more pursuant to section 1214.5; (3) delete the paragraph requiring defendant to pay a $25 administrative screening fee pursuant to section 29550.2 of the Government Code; (4) delete the paragraph requiring defendant to pay a $263.85 main jail booking fee pursuant to section 29550.2 of the Government Code; and (5) modify probation condition No. 3 to read as follows: “Defendant shall not associate with any female unrelated to him who he knows or reasonably should know is under the age of 18 without a responsible adult present as approved by the probation officer.”
The trial court is directed to forward copies of the corrected minute order and order of probation to defendant and to the probation department.
As modified, the judgment (order granting probation) is affirmed.
I concur:
NICHOLSON,J.
I concur in the judgment and opinion except as to part IV of the Discussion as to which I concur in the result.
BLEASE, Acting P. J.