Filed 9/12/13 P. v. Hampton CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071235

         v.                                                                      (Super. Ct. No. 12F02618)

ROY LEE HAMPTON,

                   Defendant and Appellant.




         Defendant Roy Lee Hampton pleaded no contest to failing to register as a sex
offender. (Pen. Code, § 290.018, subd. (b).)1 The trial court placed him on probation for
five years and imposed various terms and conditions of probation, including that
defendant obey all laws, submit to warrantless search and seizure, and pay a $25
urinalysis testing fee.



1 Undesignated statutory references are to the Penal Code.


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       Defendant now contends the trial court erred in imposing the $25 urinalysis testing
fee as a condition of probation because (1) there is no order for urinalysis testing upon
which the urinalysis testing fee could be based; (2) urinalysis testing has no relationship
to defendant’s conviction or his criminal history; and (3) payment of the fee without
justification would have no rehabilitative effect.
       The Attorney General responds that the probation condition requiring defendant to
submit to warrantless searches and seizures of his person would require defendant to
provide a urine sample upon request. Noting the broad discretion of the trial court to
impose conditions that foster rehabilitation and protect public safety, the Attorney
General argues urinalysis testing and the urinalysis testing fee are reasonably related to
deterrence of future criminality, protection of the public, and effective probation
supervision.
       We conclude (1) the trial court ordered defendant to submit to urinalysis testing as
a condition of probation, and defendant and his counsel understood this because defense
counsel expressly objected to “the urinalysis test” at sentencing; (2) the trial court did not
abuse its discretion in ordering urinalysis testing as a condition of probation, because
such testing regulates criminal conduct and relates to the fundamental probation
condition that defendant obey all laws; and (3) the urinalysis testing condition serves a
rehabilitative purpose and is reasonably related to defendant’s future criminality.
       Nonetheless, we have identified a different problem with the trial court’s
imposition of the urinalysis testing fee and court facility fee as conditions of probation.
Because those fees are collateral to the offense and cannot be made a condition of
probation, we will modify the order granting probation to clarify that payment of those




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fees is not a condition of probation but rather an order of the trial court entered at
judgment.2
       We will affirm the order of probation as modified.
                                      BACKGROUND
       The facts surrounding the underlying offense are not relevant to the issue on
appeal. Defendant informed the trial court that he wanted to accept the plea deal.
Defense counsel informed the trial court that probation conditions had been prepared, and
defendant confirmed that he wanted to proceed with sentencing that day.
       The trial court accepted defendant’s no contest plea, and defense counsel indicated
they were ready to proceed with sentencing. Page three of the proposed conditions of
probation indicated that “urinalysis testing is $25.00 per test.” Defense counsel objected
to “the urinalysis test.” She said there were no drugs involved in this case. Defense
counsel moved to strike “all of those, as well as any non-mandatory fine and fee. The
mandatory fines and fees, I would request the minimum.”
       The trial court indicated that it would adopt most of the proposed probation
conditions, but it would make some changes as requested by defense counsel. The trial
court added, “[t]hat means if I don’t talk about a specific probation condition, it will be
adopted without any changes.”
       The trial court placed defendant on probation for five years and imposed various
terms and conditions of probation, expressly referencing that defendant must obey all
laws, serve 120 days in custody (with credit for 24 days), register as a sex offender, and
submit to warrantless search and seizure. The trial court did not impose the proposed
main jail booking fee or main jail classification fee, noting defendant’s inability to pay.



2 The parties did not raise this issue in their briefs. Because the law appears clear,
however, we will modify the order without further briefing in the interest of judicial
economy. Any party aggrieved may petition for rehearing. (Gov. Code, § 68081.)

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The trial court then said: “Otherwise, I’m going to adopt all your other fines and fees, as
well as probation costs.” The minute order directed defendant to pay a $25 urinalysis
testing fee.
                                        DISCUSSION
                                               I
         Defendant initially contends the urinalysis testing fee was unauthorized because
there is no order for urinalysis testing upon which the urinalysis testing fee could be
based.
         It is true the proposed probation conditions did not say defendant was required to
submit to urinalysis testing, they merely said “urinalysis testing is $25.00 per test.” The
trial court did not expressly mention such testing. In imposing sentence, the trial court
said: “[I]f I don’t talk about a specific probation condition, it will be adopted without any
changes.” Regarding the proposed fines and fees, the trial court did not impose the
proposed main jail booking fee or main jail classification fee, noting defendant’s inability
to pay, then added: “Otherwise, I’m going to adopt all your other fines and fees, as well
as probation costs.” The minute order did not say anything about urinalysis testing, but
simply directed defendant to pay a $25 urinalysis testing fee.
         However, probation conditions “need not be spelled out in great detail in court as
long as the defendant knows what they are.” (People v. Thrash (1978) 80 Cal.App.3d
898, 901.) Here, defendant and his counsel had a written copy of the proposed probation
conditions and informed the trial court they were ready for sentencing. The record
indicates defendant and his counsel understood that the proposed probation conditions
included urinalysis testing, because defense counsel specifically objected to “the
urinalysis test.” The trial court expressly indicated it would adopt the proposed
conditions it did not talk about. Defendant said he understood the terms of his probation,
and his counsel did not seek further clarification or assert any further objection. On this



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record, we conclude the trial court ordered defendant to submit to urinalysis testing, and
further ordered defendant to pay a urinalysis testing fee for such testing.
                                                II
       Defendant next contends urinalysis testing has no relationship to his conviction or
his criminal history. He says he was not convicted of a crime necessitating monitoring of
unauthorized drug use, and there is nothing in the record indicating that he abuses
controlled substances.
       We review conditions of probation for abuse of discretion. (People v. Olguin
(2008) 45 Cal.4th 375, 379 (Olguin).) A probation condition will not be invalidated
unless it (1) has no relationship to the defendant’s crime, (2) relates to conduct which is
not in itself criminal, and (3) requires or forbids conduct which is not reasonably related
to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on
another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) The test is
conjunctive; all three prongs must be satisfied before a reviewing court will invalidate a
probation condition. (Lent, supra, at p. 486, fn. 1; Olguin, supra, 45 Cal.4th at p. 379.)
Moreover, a probation condition relating to criminal conduct is valid even if the condition
is unrelated to the defendant’s crime. (In re Kacy S. (1998) 68 Cal.App.4th 704, 710
(Kacy S.).)
       In Kacy S., supra, 68 Cal.App.4th at pages 708-710, this court upheld a probation
condition requiring a minor to submit to urinalysis testing even though drugs and alcohol
were unrelated to the minor’s offense, and even though the minor’s social history did not
show involvement with drugs or alcohol. This court reasoned that, because drug testing
detects the presence of alcohol and drugs whose use by minors is unlawful, the condition
“ ‘ “relates to conduct which is . . . in itself criminal.” ’ ” (Id. at p. 710.)
       Here, urinalysis testing is designed to detect the presence of illicit substances.
(Kacy S., supra, 68 Cal.App.4th at p. 710.) Thus, urinalysis testing regulates criminal
conduct, which relates to the fundamental probation condition that defendant “ ‘obey all

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laws.’ ” (People v. Balestra (1999) 76 Cal.App.4th, 57, 67 (Balestra).) Because the
condition is valid under the second prong of Lent, supra, 15 Cal.3d at page 486,
defendant fails to establish that the trial court abused its discretion by imposing urinalysis
testing as a condition of probation.
                                                III
          Defendant further claims that payment of the urinalysis testing fee without
justification would have no rehabilitative effect. But as we have explained, the urinalysis
testing fee is based on urinalysis testing, which is justified because it regulates criminal
conduct.
          In Olguin, supra, 45 Cal.4th at pages 381-382, the California Supreme Court
upheld a probation condition requiring the defendant to inform his probation officer of
the presence of any pets at the defendant’s residence. The defendant in that case argued
the condition was not reasonably related to his future criminality. (Id. at p. 378.) The
Supreme Court disagreed, concluding that the condition “reasonably related to the
supervision of defendant and hence to his rehabilitation and potential future criminality.”
(Id. at p. 380.) Because the condition served to protect the probation officer charged with
supervising the defendant’s compliance with the terms of probation, it enhanced the
officer’s ability to effectively supervise the defendant and was therefore reasonably
related to the defendant’s rehabilitation and to deterring future criminality. (Id. at 381.)
          Warrantless search conditions have also been upheld regardless of whether the
underlying offense is reasonably related to theft, narcotics or firearms, because they are
“intended to ensure that the subject thereof is obeying the fundamental condition of all
grants of probation . . . that a probationer ‘obey all laws.’ Thus, warrantless search
conditions serve a valid rehabilitative purpose . . . .” (Balestra, supra, 76 Cal.App.4th at
p. 67.)
          Urinalysis testing detects the use of illicit substances. Like a warrantless search
condition, a urinalysis testing condition enhances a probation officer’s ability to monitor

                                                6
defendant’s compliance with the terms of probation, including the fundamental condition
to obey all laws. Thus, the urinalysis testing condition is valid because it serves a
rehabilitative purpose and is reasonably related to defendant’s future criminality.
                                             IV
       We have identified a different problem with the trial court’s imposition of the
urinalysis testing fee and court facility fee as conditions of probation. Probation costs are
collateral to the offense and cannot be made a condition of probation. (People v. Hart
(1998) 65 Cal.App.4th 902, 907 (Hart); People v. Bennett (1987) 196 Cal.App.3d 1054,
1056; People v. Wilson (1982) 130 Cal.App.3d 264, 268-269.) Such costs are collectible
as civil judgments but may not be enforced through contempt proceedings. (People v.
Bennett, supra, 196 Cal.App.3d at p. 1056; People v. Wilson, supra, 130 Cal.App.3d at
p. 269; see also Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322 [holding
that a trial court’s order requiring defendant to pay costs of polygraph testing could be
enforced through civil proceedings but not through contempt or probation revocation
proceedings].) A court facilities fee imposed under Government Code section 70373
must also be separately ordered and not made a condition of probation. (People v. Kim
(2011) 193 Cal.App.4th 836, 843.)
       Here, the trial court’s written order specifies that some fees are court-ordered fees
and not conditions of probation. The trial court ordered defendant to pay a $40 security
surcharge fee and $46 monthly probation supervision fee, noting for each fee that “[t]his
is a court ordered fee not a condition of probation.” But the trial court did not say the
same thing when imposing the urinalysis testing fee or the court facilities fee (Gov. Code,
§ 70373). In fact, defendant and the Attorney General refer to payment of the urinalysis
testing fee as a “condition of probation” in their respective briefs. The urinalysis testing
fee and court facility fee should not be included as probation conditions.
       The appropriate remedy is not to strike the fees, but instead to modify the order
granting probation to clarify that payment of those fees is not a condition of probation but

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rather an order of the court entered at judgment. (People v. Kim, supra, 193 Cal.App.4th
at pp. 847-848; People v. Benner (2010) 185 Cal.App.4th 791, 797; Hart, supra, 65
Cal.App.4th at p. 907.) We will modify the order accordingly.
                                      DISPOSITION
       The order of probation is modified to strike payment of the urinalysis testing fee
and court facilities fee as conditions of probation. Those fees are instead imposed as an
order of the court entered at judgment. The order of probation is affirmed as modified.
The trial court is directed to prepare an amended probation order consistent with this
opinion and to forward a copy to defendant and the probation department.


                                                               MAURO                     , J.


We concur:


             BUTZ                    , Acting P. J.


             HOCH                    , J.




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