(Super. Ct. No. 12F02732)
The opinion of the court was delivered by: Hull , Acting P. J.
California Supreme and/or Appellate Courts
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Elisha Edwards pleaded no contest to possession of heroin and was placed on probation.
On appeal, he contends the trial court erred in ordering him to pay a $25 urinalysis fee without making any finding regarding his ability to pay as required by Penal Code section 1203.1ab (undesignated statutory references are to the Penal Code), and there is no substantial evidence to support a finding of his ability to pay. In the interest of judicial economy, we shall strike the fee and direct that the order of probation by modified accordingly. In all other respects the judgment shall be affirmed.
At sentencing, defense counsel objected to the imposition of "non-mandatory fines and fees," the "laboratory fees and penalty assessments and DNA" and the $25 urinalysis fee, because they can properly be imposed only if defendant has an ability to pay; defendant does not have such ability, counsel asserted, because he "is on SSI" (Social Security's Supplemental Security Income). The court declined to impose several fines "based upon inability to pay," but imposed the $25 drug testing urinalysis fee.
While this appeal was pending, defendant asked the trial court to strike its imposition of a $100 drug treatment placement program fee and the $25 drug urinalysis testing fee. The minute order reflecting the trial court's response indicates it ordered the $100 drug treatment placement program fee stricken from the probation order, but "[t]he $25 urinalysis testing fee remains imposed. The defendant is entitled to a hearing seeking modification of fees based on inability to pay."
Defendant contends the trial court erred in imposing the urinalysis testing fee because there is insufficient evidence in the record to show he has any ability to pay. He asks that we strike the fee.
The trial court did not identify the statutory basis of its imposition of the $25 urinalysis testing fee. We presume it intended to impose the fee under section 1203.1ab, which states that, upon conviction for unlawful possession of a controlled substance and probation is granted, the court "shall require as a condition of probation that the defendant shall . . . submit to drug and substance abuse testing" 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 . . . ." A determination that a defendant has the ability to pay is thus a prerequisite for entry of an order for payment of "all or part of the costs" associated with routine substance abuse testing as a condition of probation.
An order for the payment of a fee for which a finding of ability to pay is a prerequisite cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, ...