Filed 5/3/16 P. v. Medrano CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068486

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF34691)

JOEY LUNA MEDRANO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Raymond A.

Cota, Judge. Affirmed as modified.



         Alex Kreit, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Alana Butler and Meredith S.

White, Deputy Attorneys General, for Plaintiff and Respondent.
       Joey Luna Medrano pleaded no contest to one charge of making criminal threats in

violation of Penal Code section 422, subdivision (a)1 (count 1). A second charge,

disobeying a court order in violation of section 166, subdivision (a)(4) (count 2), was

dismissed. The trial court placed Medrano on three years' formal probation and imposed

fees and probation terms as recommended by the probation officer. On appeal, Medrano

asserts that the drug testing fee, collection processing fee, probation supervision costs,

and report preparation fee should be stricken because he lacks the ability to pay the fees.

He also asserts that several of his probation conditions should be modified to include a

knowledge requirement. We affirm the judgment, but modify to strike the drug testing

fee, and modify the probation condition precluding Medrano from entering any liquor

store to include a knowledge requirement.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Medrano was arrested after he stood outside of the home of Michael Blanchard

and threatened to kill Blanchard and his family. Medrano was under the influence of

alcohol at the time. Medrano was arrested and charged with one count of making

criminal threats and one count of disobeying a court order. Medrano pleaded no contest

to count 1, making criminal threats, and count 2, disobeying a court order, was dropped.

The trial court sentenced Medrano to three years of formal probation on the condition that

he serve 270 days in custody, and awarded him 133 credits.

       Before the sentencing hearing, a probation report was prepared recommending the

following fees: (1) a drug testing fee of $7 per test, pursuant to Imperial County

1.     Statutory references are to the Penal Code unless otherwise stated.
                                              2
Ordinance section 2.84.0602 and Penal Code section 1203.1ab; (2) a probation

supervision cost of $25 per month pursuant to County Ordinance section 2.84.020 and

Penal Code section 1203.1b, subdivision (a); (3) an administrative collection processing

fee of $25 pursuant to County Ordinance section 2.84.050 and Penal Code section

1203.1b, subdivision (h); (4) an immediate critical needs assessment criminal conviction

fee of $30 pursuant to Government Code section 70373, subdivision (a)(1); (5) a court

operation assessment fee of $40 pursuant to Penal Code section 1465.8, subdivision

(a)(1); (6) a court-appointed attorney fee of $200; (7) a probation report preparation fee

of $200 pursuant to County Ordinance section 2.84.040 and Penal Code section 1203.1b,

subdivision (a); and (8) a restitution fine of $300 pursuant to Penal Code section 1202.4,

subdivision (b).

       The probation report also recommended several probation requirements: (1)

abstain from the use of alcoholic beverages; (2) abstain from the use or possession of

alcoholic beverages, even in his own home; (3) not enter the premises of any business

whose main product being sold is that of alcoholic beverages; and (4) follow all standard

terms of probation and reasonable orders of the probation officer.

       At the sentencing hearing, defense counsel objected to the imposition of the

discretionary fees set forth in the probation report, including the attorney fee and the

administrative fee for preparation of the probation report. Defense counsel stated that

Medrano was unemployed and had no ability to pay the fees.



2      All references to County Ordinances refer to Imperial County Ordinances.
                                              3
       The court found that although Medrano may not have the present ability to earn

money, he would have an opportunity to become employed and earn money while on

probation. The court imposed all of the recommended fees, except the $200 court-

appointed attorney fee, and it reduced the probation report preparation fee from $200 to

$100. The court imposed an additional probation revocation restitution fine of $300

pursuant to section 1202.44. The court imposed all of the recommended probation terms

and conditions.

                                      DISCUSSION

       As stated, Medrano challenges several of the fees and probation conditions

imposed by the trial court.

                                             I

       Specifically, Medrano contends that (1) the $25 collection processing fee, (2) the

probation supervision cost of $25 per month, (3) the $100 administrative fee for the

probation report preparation, and (4) the drug testing fee of $7 per test were improperly

imposed because he does not have the ability to pay. We agree and the Attorney General

concedes that the drug testing fee should be stricken. We affirm the imposition of the

three other challenged fees.

A.     Collection Processing Fee

       " 'When construing a statute, we must "ascertain the intent of the Legislature so as

to effectuate the purpose of the law." ' [Citation.] '[W]e begin with the words of a statute

and give these words their ordinary meaning.' [Citation.] 'If the statutory language is

clear and unambiguous, then we need go no further.' [Citation.] If, however, the

                                             4
language supports more than one reasonable construction, we may consider 'a variety of

extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,

the legislative history, public policy, contemporaneous administrative construction, and

the statutory scheme of which the statute is a part.' [Citation.] Using these extrinsic aids,

we 'select the construction that comports most closely with the apparent intent of the

Legislature, with a view to promoting rather than defeating the general purpose of the

statute, and avoid an interpretation that would lead to absurd consequences.' " (People v.

Sinohui (2002) 28 Cal.4th 205, 211-212.)

       The $25 collection processing fee imposed pursuant to section 1203.1b,

subdivision (h) is not subject to an ability to pay determination. The provision states,

"The board of supervisors in any county, by resolution, may establish a fee for the

processing of payments made in installments to the probation department pursuant to this

section, not to exceed the administrative and clerical costs of the collection of those

installment payments as determined by the board of supervisors, except that the fee shall

not exceed seventy-five dollars ($75)." (Ibid.) Because subdivision (h) does not

expressly contain an ability to pay requirement, it is not subject to an ability to pay

determination. Had the Legislature wanted to subject the fee to an ability to pay

requirement, it knew how to do so and, in fact, did do so in the same statute. Subdivision

(a) specifies that the probation officer of the defendant's authorized representative "shall

make a determination of the ability of the defendant to pay all or a portion of the

reasonable cost of any probation supervision" and the cost of preparing his probation

report. (Id., subd. (a).) Subdivision (e) defines the term "ability to pay" and references

                                              5
supervision costs and costs of preparing reports, but does not reference the cost of

processing collection payments. (Id., subd. (e).) Medrano argues that "there is no

evidence that [he is able] to pay the discretionary fees imposed by the court." Although

Medrano does not explicitly argue that this particular fee under section 1203.1b,

subdivision (h) is subject to an ability to pay determination, we can infer this argument

from his statements in his opening brief.

B.    Probation Supervision Costs and Administrative Fee for Preparation of the
Probation Report

       Medrano next contends that the probation supervision cost and the administrative

fee for probation report preparation should be stricken because he lacks the ability to pay.

(§ 1203.1b, subd. (a).)

       In order to impose the costs of probation supervision and report preparation, the

court must make either an express or implied finding that the person has the ability to

pay. (§ 1203.1b, subd. (e); People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.) The

court's direct or implied finding of ability to pay must be supported by substantial

evidence. (Pacheco, at p. 1398). Under the substantial evidence test, "our review is

limited to the determination of whether, upon review of the entire record, there is

substantial evidence of solid value, contradicted or uncontradicted, which will support the

trial court's decision. In that regard, we give great deference to the trial court and resolve

all inferences and intendments in favor of the judgment. Similarly, all conflicting

evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88

Cal.App.4th 840, 848-849, fns. omitted.)


                                              6
       Section 1203.1b, subdivision (e) defines " 'ability to pay' " as "the overall

capability of the defendant to reimburse the costs, or a portion of the costs" authorized by

subdivision (a). Subdivision (e) includes a nonexhaustive list of the factors a court is to

consider in making a determination that a defendant has an ability to pay the relevant

fees. The factors include a defendant's: "(1) Present financial position. [¶] (2)

Reasonably discernible future financial position. In no event shall the court consider a

period of more than one year from the date of the hearing for purposes of determining

reasonably discernible future financial position. [¶] (3) Likelihood that the defendant

shall be able to obtain employment within the one-year period from the date of the

hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial

capability to reimburse the county for the costs." (Id., subd. (e).)

       "[A] determination of ability to pay may be made based on the person's ability to

earn where the person has no physical, mental or emotional impediment which precludes

the person from finding and maintaining employment . . . ." (People v. Staley (1992) 10

Cal.App.4th 782, 783 [interpreting analogous fee statute].) "Ability to pay does not

necessarily require existing employment or cash on hand." (Id. at p. 785.) Further,

impending incarceration alone does not establish an inability to pay fines and fees.

(People v. Nelson (2011) 51 Cal.4th 198, 227.)

       Substantial evidence supports the trial court's finding that Medrano "will have a

period of [p]robation to become employed and have an opportunity to earn money to

pay" the fees the court imposed. Medrano is a young man with no psychological or

medical problems. Medrano has a high school diploma and has considered attending

                                              7
community college. Medrano was previously employed. Medrano is not married, has no

dependents, and lives with his parents. He also receives food stamps and stated that he

works side jobs occasionally. There is no evidence that Medrano has other financial

obligations that will interfere with his ability to pay these fees.

       When Medrano was sentenced, the court imposed a 270-day custodial term and

awarded Medrano 133 credits. Thus, Medrano had 137 remaining days to serve in

custody as of the sentencing date, June 17, 2015. At sentencing, therefore, the trial court

knew Medrano would have time while on probation to find employment within the one-

year period considered in determining ability to pay.

       We also reject Medrano's contention that the trial court's decision to strike the fee

for court-appointed counsel and reduce the fee for preparation of the probation officer's

report from $200 to $100 was contrary to the court's determination that Medrano could

pay other discretionary fees. The court properly exercised its discretion in reducing some

of the fees and deciding that Medrano could pay the rest, taking into consideration all of

the factors concerning his ability to pay.

       We also note, as the trial court below did, that after the initial determination of a

defendant's ability to pay, section 1203.1b, subdivision (f) authorizes a defendant who

experiences a change of circumstances to petition for a review of his ability to pay. If

Medrano makes a full effort to obtain employment after he is released from custody or

enrolls in school and his wages are insufficient to pay the fine, he may raise this issue at

that time.



                                               8
C.     Drug Testing Fee

       Finally, Medrano argues, and the Attorney General concedes, that the $7 drug

testing fee imposed for each drug test should be stricken. Section 1203.1ab calls for the

imposition of a fee to cover costs for drug testing if it is ordered by a court. Under the

statute, if a defendant has been convicted of "any offense involving unlawful possession,

use, sale, or furnishing of any controlled substance" and "[i]f the defendant is required to

submit to testing and has the financial ability to pay all or part of the costs associated

with that testing, the court shall order the defendant to pay a reasonable fee, which shall

not exceed the actual cost of the testing." (Ibid.) Because Medrano was not convicted of

a drug-related crime, the fee was imposed erroneously and should be stricken.

                                              II

       Medrano argues that certain probation conditions imposed by the trial court are

overbroad and vague because they do not contain a knowledge requirement. The

Attorney General concedes and we agree that a knowledge requirement should be added

to the condition restricting Medrano from entering a liquor store.

A.     Legal Standard

       Trial courts have broad discretion in determining the conditions of probation.

(People v. Peck (1996) 52 Cal.App.4th 351, 362.) This broad discretion allows the courts

to impose conditions of probation that will foster rehabilitation and reformation of the

defendant, protect the public and the victim, and ensure justice is done. (§ 1203.1, subd.

(j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.)



                                               9
       Probation conditions " 'must be sufficiently precise for the probationer to know

what is required of him, and for the court to determine whether the condition has been

violated . . . .' " (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "We construe every

probation condition proscribing a probationer's presence, possession, association, or

similar action to require the action be undertaken knowingly." (People v. Patel (2011)

196 Cal.App.4th 956, 960 (Patel).)

       However, probation conditions are also subject to the "void for vagueness

doctrine." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324, 325 (Reinertson).)

The underlying concern is the constitutional due process requirement of adequate notice.

(People v. Lopez (1998) 66 Cal.App.4th 615, 630.) A probation condition "must be

sufficiently precise for the probationer to know what is required of him [or her], and for

the court to determine whether the condition has been violated." (Reinertson, at pp. 324-

325.) If a probation condition has a "plain commonsense meaning, which is well settled,"

the condition is not unconstitutionally vague. (People v. Rodriquez (1975) 50 Cal.App.3d

389, 398 (Rodriquez).) The doctrine requires no more than reasonable certainty of what

is being prohibited. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.)

Whether a probation condition is void for vagueness is a question of pure law. (In re

Justin S. (2001) 93 Cal.App.4th 811, 815.)

B.     Probation Conditions

       Medrano challenges the probation conditions requiring him to "totally abstain

from the use of alcoholic beverages," and requiring him to "totally abstain from the use or

possession of alcoholic beverages even in his own home." Medrano contends that these

                                             10
two conditions should include a knowledge requirement so he is not faulted for violating

his probation should he accidentally consume or possess alcohol. We disagree. A

substantial body of case law establishes that a "probationer cannot be punished for

presence, possession, association, or other actions absent proof of scienter." (Patel,

supra, 196 Cal.App.4th at p. 960.) Generally, therefore, it is not necessary to include an

express scienter requirement in probation orders. Further, "[a] court may not revoke

probation unless the evidence supports 'a conclusion [that] the probationer's conduct

constituted a willful violation of the terms and conditions of probation.' " (People v.

Cervantes (2009) 175 Cal.App.4th 291, 295, quoting People v. Galvan (2007) 155

Cal.App.4th 978, 982.) Because a scienter requirement is inherent in these two probation

conditions, Medrano will not be punished for unwillingly violating the conditions.

       Medrano's reliance on People v. Rodriguez (2013) 222 Cal.App.4th 578, 594 is

misplaced. In Rodriguez, the court added a knowledge requirement to a condition that

prohibited the use and possession of alcohol, intoxicants, narcotics, or other controlled

substances because the category of intoxicants is "susceptible of different interpretations,

which may include common items . . . [and] the addition of an express knowledge

requirement will eliminate any potential for vagueness or overbreadth in applying the

condition." (Ibid.) General intoxicants, which are not included in the probation

condition here, have the potential to be interpreted differently. "Alcohol" is not vague,

and the condition thus clearly states what it sets out to prohibit. (See id. at p. 593

[" 'Although the possessor's knowledge of the presence of the controlled substance and its



                                              11
nature as a restricted dangerous drug must be shown, no further showing of a subjective

mental state is required.' "].)

       Medrano also challenges the condition that he "follow all standard terms of

probation and reasonable orders of the probation officer." Medrano asserts this condition

is unconstitutionally vague and should be stricken because it suggests he may be

expected to follow standard conditions that were not specifically listed in his probation

order. We disagree. The condition is reasonably interpreted to mean Medrano must

follow the conditions of his probation as they have been explained to him, as well as the

reasonable orders of his probation officer. Because this condition has a commonsense

meaning and can be reasonably interpreted, it is not unconstitutionally vague.

(Rodriquez, supra, 50 Cal.App.3d at p. 398.)

       Lastly, Medrano challenges the condition stating that he "shall not enter the

premises of any business whose main product being sold is that of alcoholic beverages."

Medrano asserts that even if a knowledge requirement is added, the condition remains

unconstitutionally vague. Because it is unclear what is meant by " 'main product being

sold,' " he argues "it is not clear whether alcohol must be the 'main product' relative to the

number of items offered for sale, the number of items that are actually sold, or the

amount of revenue generated." The Attorney General responds that a knowledge

requirement should be added to this condition so that Medrano cannot be found in

violation if he unknowingly enters an establishment whose main product being sold is

alcoholic beverages. The Attorney General argues that such a requirement sufficiently

clarifies this condition.

                                             12
       We agree with the Attorney General. As discussed, probation conditions are

subject to the "void for vagueness doctrine," which requires only reasonable certainty of

what is being prohibited. If it is reasonable for Medrano not to know that a business's

main product being sold is alcoholic beverages, he will not be punished for entering the

premises of any such business. A knowledge requirement therefore is sufficient to clarify

the condition so that it is clear Medrano can only be found in violation if he is aware the

business's main product is alcohol. (Reinertson, supra, 178 Cal.App.3d at pp. 324-325;

People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.) We will modify the

probation condition accordingly.

                                      DISPOSITION

       The judgment is modified to strike the drug testing fee. Probation condition No.

10 in the sentencing order dated June 17, 2015, is modified to state: "Defendant shall not

enter the premises of any business where he knows or reasonably should know the main

product being sold is that of alcoholic beverages." The judgment is affirmed as modified.




                                             13
The trial court is directed to amend the abstract of judgment accordingly and to forward a

certified copy to the Department of Corrections and Rehabilitation.


                                                                            PRAGER, J.*

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            14
