Filed 10/15/15 P. v. Boselly CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066810

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF31360)

MATTHEW BOSELLY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,

Jr., Judge. Affirmed as modified.

         Valerie G. Wass, 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, Peter Quon, Jr. and Marilyn L.

George, Deputy Attorneys General, for Plaintiff and Respondent.
       Pursuant to a plea agreement, Matthew Boselly entered a no contest plea to one

count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)). Boselly was

granted probation subject to certain terms and conditions.

       Boselly challenges two of the probation conditions. First, he contends the $50

laboratory fee was unauthorized as this was not a drug case. The respondent properly

agrees the fee was unauthorized. We will direct the court to strike the laboratory fee.

       Boselly next contends the trial court erred in ordering him to pay the costs of

probation supervision as there was no evidence of his ability to pay. The respondent

argues the issue has been forfeited, however defense counsel expressly asked to waive

fees due to Boselly's lack of ability to pay, a position with which the prosecution had no

objection.

       We will find the record does not support any implied finding of ability to pay, and

therefore we will order the trial court to strike this condition as well.2

                                       DISCUSSION

       In order to impose the costs of probation supervision on a probationer, the court

must make a finding that the person has the ability to pay. (§ 1203.1b, subd. (e).) The

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

evidence. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398; disapproved on other

grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5 (Trujillo).)



1      All further statutory references are to the Penal Code unless otherwise specified.

2      The facts of the underlying offense have no bearing on the issues in this appeal.
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       At the sentencing hearing, defense counsel asked the court to waive fees because

of Boselly's indigence. The only discussion of ability to pay occurred at the outset of the

sentencing hearing:

          "[Defense counsel]: Your honor, I would--I would also ask the court
          to consider waiving fines and fees to the extent permitted by law.

          "Mr. Boselly is homeless. He lives in a tent off the coast of the
          Salton Sea. He doesn't have any income. It would be very difficult
          for him to pay these fines and fees.

          "And I would also ask--he's technically on social security, but that's
          beside the point. The income status is still what it is."

The court then asked the prosecutor for comment. The prosecutor said: "We have no

objection on the fees, if the court chooses to do that."

       Otherwise the record shows Boselly is receiving disability income from social

security. His mental state seems marginal since criminal proceedings were suspended

under section 1368 on at least two occasions. The court made no express finding on

ability to pay probation supervision costs and simply ordered Boselly to make payments

on the cost of probation supervision. The court did find Boselly lacked the ability to pay

the costs of appointed counsel.

       Substantial evidence is often defined as " ' "evidence that is reasonable, credible

and of solid value." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) In this case

there is virtually no evidence that could support an implied finding that Boselly had or

will have the ability to pay the costs of probation supervision. Therefore the order to

make such payments is not supported by any substantial evidence.



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        We will turn next to respondent's position that the issue has been forfeited.

Although respondent recognizes defense counsel asked the court to waive fees based on

lack of ability to pay, respondent argues such effort was not enough to avoid forfeiture.

Relying on Trujillo, supra, 60 Cal.4th 850, respondent argues Boselly should have done

more to preserve the issue for appeal. We disagree.

        First we do not believe the decision in Trujillo, supra, 60 Cal.4th 850 requires

multiple efforts by defense counsel to raise the issue of a defendant's inability to pay the

cost of probation supervision. The court did hold that the forfeiture doctrine does apply

where an appellant seeks to raise inability to pay fees for the first time on appeal. (Id. at

p. 857.) That is not our case.

        Here the defense raises the issue of inability to pay fees due to disability,

homelessness and lack of income. When asked to comment, the prosecution did not

disagree. We wonder what else defense counsel should have done. The court found

Boselly did not have the ability to pay defense counsel costs. The court made no

comment about the probation costs. On this record we believe the defense placed the

issue before the court. There is no basis for application of the forfeiture doctrine in this

case.

                                        DISPOSITION

        The probation order is modified to strike the laboratory fee and to strike the

condition requiring payment of probation supervision costs. The superior court is




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directed to modify the probation order accordingly. In all other respects the judgment is

affirmed.




                                                                           HUFFMAN, J.

WE CONCUR:



              McCONNELL, P. J.



                    PRAGER, J.*




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