Filed 7/17/14
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                        H039309
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1244427)

        v.

WILLIAM ANTHONY POVIO,

        Defendant and Appellant.


        Defendant William Anthony Povio pleaded no contest to unlawful possession of a
controlled substance, Vicodin (Health & Saf. Code, § 11350, subd. (a)); false
representation and identification to a peace officer (Pen. Code, § 148.9); and possession
of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)). He also
admitted a prior strike conviction for attempted second degree burglary conviction. (Pen.
Code, §§ 667.5, subd. (b), 459, 460, subd. (b), 664.) On appeal, Povio challenges a
probation condition and several fees imposed at his sentencing hearing. We reverse the
judgment and remand with directions.
I.      BACKGROUND
        On November 8, 2012, the People filed a four-count complaint charging Povio
with (1) unlawful possession of a controlled substance, Vicodin (Health & Saf. Code, §
11350, subd. (a)); (2) false representation and identification to a peace officer (Pen. Code,
§ 148.9); (3) possession of burglary tools (id., § 466); and (4) possession of 28.5 grams or
less of marijuana (Health & Saf. Code, § 11357, subd. (b)). The complaint also alleged,
pursuant to Penal Code section 667.5, subdivision (b), that Povio had a prior felony
conviction and prison term for attempted second degree burglary (id., §§ 459, 460, subd.
(b), 664).
       Povio pleaded no contest to counts 1, 2, and 4 and admitted the prior conviction on
December 6, 2012. Pursuant to Povio’s plea agreement, the court dismissed the count 3
possession of burglary tools charge. Before Povio entered his plea, the court advised him
that he would be subject to certain fines and fees. Povio asked “am I in violation of
probation if I can’t pay?” Povio and his counsel then conferred off the record, after
which Povio entered his plea without further discussion of his ability to pay or the
consequences of failing to do so.
       The court suspended imposition of sentence and placed Povio on a three-year term
of formal probation on various terms and conditions, including the condition that he serve
nine months in county jail with credit for 64 days. The court also imposed a condition of
probation requiring Povio to stay 300 yards away from any playground. The court orally
ordered Povio to pay various fines and fees including a laboratory analysis fee of “[$]50
per count,” a probation supervision fee “not to exceed [$]110 per month,” a $150 drug
program fee, and a $70 AIDS education fee. The minute order reflects a $150 lab fee, a
$110 per month probation supervision fee, a $150 drug program fee, and a $70 AIDS
education fee.
       Povio timely appealed his sentence.
II.    DISCUSSION
       On appeal, Povio challenges the imposition of the laboratory analysis, probation
supervision, drug program, and AIDS education fees. He also challenges the
constitutionality of the probation condition requiring him to stay 300 yards away from
playgrounds.
       A.      Laboratory Analysis Fee
       Povio urges, and the People concede, that the $150 laboratory analysis fee should
be reduced to $50. Pursuant to Health and Safety Code section 11372.5, subdivision (a),
every person convicted of one of several enumerated violations of the Health and Safety
                                             2
Code shall pay a criminal laboratory analysis fee in the amount of $50 for each separate
offense. Povio was convicted of only one qualifying offense--unlawful possession of a
controlled substance in violation of Health and Safety Code section 11350, subdivision
(a). Neither Penal Code section 148.9, nor Health and Safety Code section 11357,
subdivision (b), are listed in Health and Safety Code section 11372.5, subdivision (a).
Accordingly, Povio should have been assessed only a $50 lab fee.
       We asked the parties to submit supplemental briefing as to whether the laboratory
analysis fee is subject to any mandatory penalty assessments. (See People v. Turner
(2002) 96 Cal.App.4th 1409, 1415 (Turner) [failure to impose mandatory penalty
assessments yields unauthorized sentence that may be corrected on appeal “ ‘regardless
of whether an objection or argument was raised in the trial and/or reviewing court’ ”].)
The parties agree that the trial court was required to impose penalty assessments totaling
$155 in connection with the $50 laboratory analysis fee. The mandatory penalty
assessments include: (1) a $50 state penalty assessment (Pen. Code, § 1464, subd.
(a)(1)); (2) a $10 state surcharge (id., § 1465.7); (3) a $25 state court construction penalty
(Gov. Code, § 70372); (4) a $35 additional penalty (id., § 76000, subd. (a)(1)); (5) a $10
emergency medical services penalty (id., § 76000.5, subd. (a)(1)); (6) a $5 penalty for the
implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act
(id., § 76104.6, subd. (a)(1)); and (7) a $20 forensic laboratories penalty (id., § 76104.7).
       B.     Probation Supervision Fee
       Povio contends that the trial court’s order imposing a probation supervision fee
should be vacated, and the matter should be remanded, because the court failed to
determine his ability to pay the monthly fee as required by Penal Code section 1203.1b.
Povio further maintains there is no evidence to support an implied ability-to-pay finding.
Povio did not object to the fee below, but asserts that the challenge is not forfeited,
relying on People v. Pacheco (2010) 187 Cal.App.4th 1392. There, this court held that
claims based on insufficiency of the evidence to support an order for probation related
                                              3
costs do not need to be raised in the trial court to preserve the issue on appeal. (Id. at p.
1397.)
         Relying on People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the
People contend that Povio has forfeited his claim because he failed to object when the
trial court imposed the probation supervision fee.1 In McCullough, the California
Supreme Court held that a defendant who fails to challenge the sufficiency of the
evidence of his ability to pay a booking fee at the time it is imposed forfeits his or her
right to challenge the fee on appeal. (Id. at p. 591.) The McCullough court disapproved
of Pacheco to the extent it held contrary. (Id. at p. 599.)
         In reaching its conclusion as to booking fees, the McCullough court distinguished
the booking fee statute before it from other fee statutes, including the statute governing
the imposition of probation supervision fees, Penal Code section 1203.1b. (McCullough,
supra, 56 Cal.4th at p. 598.) The McCullough court noted that, in contrast to the booking
fees statute, these statutes “provide procedural requirements or guidelines for the ability-
to-pay determination.” (Ibid.) McCullough concluded that the lack of any procedural
safeguards or guidelines for the imposition of a booking fee indicated “that the
Legislature considers the financial burden of the booking fee to be de minimis,” making
“the rationale for forfeiture . . . particularly strong.” (Id. at p. 599.)
         As the McCullough court acknowledged, Penal Code section 1203.1b does impose
guidelines that must be followed before the trial court may impose a probation
supervision fee. Specifically, it requires (1) the trial court to order the defendant to report
to the probation officer, who makes the ability to pay determination; (2) the probation


         1
         The California Supreme Court is currently considering whether that contention--
that McCullough requires a defendant to contemporaneously object to an order imposing
probation supervision fees under Penal Code section 1203.1b--is correct. (People v.
Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013, S213571; People v.
Trujillo, review granted Nov. 26, 2013, S213687 [nonpub. opn.].)

                                                4
officer to inform the defendant that he or she is entitled to a court hearing as to his or her
ability to pay; and (3) a court hearing to determine defendant’s ability to pay, unless
defendant waives his or her right to such a hearing. (Pen. Code, § 1203.1b, subds. (a) &
(b).) Under the reasoning of McCullough, these procedural safeguards indicate that the
Legislature does not consider the financial burden of the probation supervision fee to be
de minimis and counsel against forfeiture. Accordingly, we conclude Povio’s sufficiency
of the evidence argument as to the probation supervision fee is not forfeited under
McCullough.
       We agree with Povio that the record does not support an implied ability-to-pay
finding. Indeed, there is nothing in the record as to his ability to pay the probation
supervision fee. Therefore, the probation supervision fee cannot stand.2
       C.      Drug Program Fee
       Povio asserts that, like the probation supervision fee, the drug program fee must be
reversed and remanded because no ability-to-pay determination was made and substantial
evidence does not support an implied finding of ability to pay. The People maintain
Povio forfeited this claim by failing to raise it in the trial court.
       Povio also notes that the trial court failed to impose mandatory penalty
assessments associated with the drug program fee. According to Povio, that failure
proves that the trial court did not properly assess his ability to pay. The People initially
failed to respond to this argument. We requested supplemental briefing as to whether the
drug program fee is subject to any mandatory penalty assessments. (See People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1527 (Castellanos) [requesting supplemental
briefing as to whether crime prevention programs fee is subject to any additional
assessments, a surcharge, or further penalties]; Turner, supra, 96 Cal.App.4th at pp.

       2
       The parties agree that the probation supervision fee is not subject to any
mandatory penalty assessments.

                                                5
1414-1415 [appellate court may raise issue of unauthorized sentence absent challenge by
the People].) The parties agree that penalty assessments totaling $465 must be imposed
in connection with the $150 drug program fee. The mandatory penalty assessments
include: (1) a $150 state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $30
state surcharge (id., § 1465.7); (3) a $75 state court construction penalty (Gov. Code, §
70372); (4) a $105 additional penalty (id., § 76000, subd. (a)(1)); (5) a $30 emergency
medical services penalty (id., § 76000.5, subd. (a)(1)); (6) a $15 penalty for the
implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act
(id., § 76104.6, subd. (a)(1)); and (7) a $60 forensic laboratories penalty (id., § 76104.7).
Thus, the actual amount due in connection with the drug program fee is $615.
       Health and Safety Code section 11372.7 governs the imposition of the drug
program fee. It requires the court to “determine whether or not the person who is
convicted of a violation of this chapter has the ability to pay a drug program fee.”
(Health & Saf. Code, § 11372.7, subd. (b).) In making that determination, the court must
“take into account the amount of any fine imposed upon that person and any amount that
person has been ordered to pay in restitution.” (Ibid.) Only if the court concludes the
individual has the ability to pay may the drug program fee be imposed. When
determining whether a person is able to pay a drug program fee, the trial court “is not
required to state its finding on the record.” (People v. Martinez (1998) 65 Cal.App.4th
1511, 1518 (Martinez); see also People v. Staley (1992) 10 Cal.App.4th 782, 785 [Health
& Saf. Code, § 11372.7 “does not require the trial court to make an express finding of
ability to pay a drug program fee”].) On a silent record, we presume the trial court
lawfully performed its duty in imposing sentence and found that defendant had an ability
to pay the drug program fee. (See Martinez, supra, at p. 1517; People v. Clark (1992) 7
Cal.App.4th 1041, 1050.)
       Here, we presume the trial court determined Povio was able to pay a $150 drug
program fee. (See People v. Corrales (2013) 213 Cal.App.4th 696, 702; Castellanos,
                                              6
supra, 175 Cal.App.4th at p. 1531; People v. Valenzuela (2009) 172 Cal.App.4th 1246,
1249 (Valenzuela).) But it did not do so in view of Povio’s obligation to pay $465 in
mandatory penalty assessments as Health and Safety Code section 11372.7, subdivision
(b) requires. Thus, we remand to allow the trial court to determine whether Povio has the
ability to pay a drug program fee in view of the total amount of fines and penalty
assessments imposed on him. (See Valenzuela, supra, at p. 1250 [remanding for
determination of defendant’s ability to pay sex offender fine in light of his total financial
obligations where court previously had failed to impose mandatory penalty assessments];
Castellanos, supra, at p. 1532 [same with respect to local crime prevention programs
fine].)3
       D.     AIDS Education Fee
       Povio’s challenge to the AIDS education fee mirrors his challenge to the drug
program fee. As with the other fees, we requested supplemental briefing as to whether
the AIDS education fee is subject to any mandatory penalty assessments. The parties
agree that penalty assessments totaling $217 must be imposed in connection with the $70
AIDS education fee. The mandatory penalty assessments include: (1) a $70 state penalty
assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $14 state surcharge (id., § 1465.7); (3)
a $35 state court construction penalty (Gov. Code, § 70372); (4) a $49 additional penalty
(id., § 76000, subd. (a)(1)); (5) a $14 emergency medical services penalty (id., § 76000.5,
subd. (a)(1)); (6) a $7 penalty for the implementation of the DNA Fingerprint, Unsolved
Crime and Innocence Protection Act (id., § 76104.6, subd. (a)(1)); and (7) a $28 forensic
laboratories penalty (id., § 76104.7). Thus, the actual amount due in connection with the
AIDS education fee is $287.
       Health and Safety Code section 11377, subdivision (c) provides that the court may

       3
        In view of this holding, we need not consider Povio’s sufficiency of the evidence
challenge or determine whether that claim was forfeited.

                                              7
assess an AIDS education fee “not to exceed seventy dollars ($70) against any person
who violates subdivision (a)” and that “[t]he court shall, however, take into consideration
the defendant’s ability to pay, and no defendant shall be denied probation because of his
or her inability to pay the fine permitted under this subdivision.” As with the drug
program fee, there is no requirement that the trial court make an express finding of ability
to pay the AIDS education fee, and none was made here. Accordingly, we presume the
trial court found Povio was able to pay a $70 AIDS education fee.
       For the reasons discussed above in connection with the drug program fee, we
remand to allow the trial court to determine Povio’s ability to pay the AIDS education fee
“in light of his total financial obligations.” (Valenzuela, supra, 172 Cal.App.4th at p.
1250.)4
       E.     Playground Stay-Away Probation Condition
       Finally, Povio contends the 300-yard playground stay-away probation condition is
unconstitutionally overbroad and vague absent an express knowledge requirement.5
              1.     Standard of Review
       A court of appeal may review the constitutionality of a probation condition, even
when it has not been challenged in the trial court, if the question can be resolved as a
matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40
Cal.4th 875, 888-889.) Our review of such a question is de novo. (In re Shaun R. (2010)
188 Cal.App.4th 1129, 1143.)



       4
          As with Povio’s drug program fee challenge, we need not consider Povio’s
sufficiency of the evidence challenge to the AIDS education fee, nor determine whether
that claim was forfeited.
        5
          While Povio characterizes his challenge in terms of both overbreadth and
vagueness, his arguments appear better suited to a vagueness challenge. In any event, we
agree that the condition is unconstitutionally vague as written and thus need not address
overbreadth.

                                              8
              2.     Governing Legal Principles
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘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,’ if it is to withstand a
challenge on the ground of vagueness.” (Ibid.) That is, the defendant must know in
advance when he may be in violation of the condition. “[T]he law has no legitimate
interest in punishing an innocent citizen who has no knowledge of the presence of a
[prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752 [modifying
probation condition to prohibit knowing possession of a firearm or ammunition].)
Accordingly, courts have consistently ordered modification of probation conditions to
incorporate a scienter requirement where a probationer could unknowingly engage in the
prohibited activity. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying
probation condition to prohibit knowing presence of weapons or ammunition]; In re
Justin S. (2001) 93 Cal.App.4th 811, 816 [modifying prohibition on association with
gang members to prohibit association with known gang members]; In re Kacy S. (1998)
68 Cal.App.4th 704, 713 [modifying probation condition that defendant not associate
with any persons not approved by his probation officer]; People v. Lopez (1998) 66
Cal.App.4th 615, 629 [modifying probation on displaying gang-related indicia].)
              3.     Analysis
       It is possible that Povio could come within 300 yards of a playground without
knowing it. Therefore, we will modify this probation condition to prohibit knowingly
coming within 300 yards of a playground.
III.   DISPOSITION
       The order for probation is reversed. On remand, the court shall determine, in light
of the mandatory penalty assessments discussed herein, Povio’s ability to pay (1) the
probation supervision fee under Penal Code section 1203.1b; (2) the drug program fee
                                             9
under Health and Safety Code section 11372.7; and (3) the AIDS education fee under
Health and Safety Code section 11377, subdivision (c). We direct the trial court to
modify the laboratory analysis fee to reduce the amount from $150 to $50 and to impose
the $155 in mandatory penalty assessments discussed herein in connection with the
laboratory analysis fee. Finally, we direct the trial court to modify the 300-yard
playground stay-away probation condition to prohibit knowingly coming within 300
yards of a playground.




                                                              Premo, J.



       WE CONCUR:




              Rushing, P.J.




              Elia, J.




                                            10
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. C1244427

Trial Judge:                        Hon. Raymond J. Davilla, Jr.

Counsel for Plaintiff/Respondent:   Kamala D. Harris
The People                          Attorney General

                                    Dane R. Gillette
                                    Chief Assistant Attorney General

                                    Gerald A. Engler
                                    Senior Assistant Attorney General

                                    Seth K. Schalit
                                    Supervising Deputy Attorney General

                                    Lisa Ashley Ott
                                    Deputy Attorney General

Counsel for Defendant/Appellant:    Under appointment by the Court of Appeal
William Anthony Povio               JuNelle Harris




People v. Povio
H039309
