APPEAL from a judgment of the Superior Court of Sacramento County, John P. Winn, Judge. Affirmed as modified. (Super. Ct. Nos. 12F02342, 12F02592)
William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Raymond Placer Fandinola entered into a negotiated disposition of two superior court cases. In case No. 12F02342, defendant pled no contest to one count of second degree burglary, one count of possession of a check or money order with the intent to defraud, and two counts of possession and use of personal identity information. Six related counts were dismissed. In case No. 12F02592, four theft related counts were dismissed.
Defendant was sentenced to serve an aggregate term of five years imprisonment (three years (upper term) for the burglary, plus three consecutive terms of eight months (one-third the middle term) for the remaining counts). Pursuant to Penal Code section 1170, subdivision (h), added to California's sentencing scheme by " the 2011 Realignment Legislation addressing public safety" (realignment legislation) (Stats.2011, ch. 15, §§ 1, 450), and thereafter amended to its current form (Stats.2011, ch. 361, § 6.7; Stats.2012, ch. 43, § 27), the trial court ordered defendant to serve the first three years of his sentence in the county jail and the remaining two years on mandatory supervision. (§ 1170, subd. (h)(5)(B).) Among other orders, the trial court imposed a probation supervision fee of $46 per month and a urine testing fee of $25 per test, ordering defendant to " report to the Department of Revenue Recovery" upon his release from the county jail " for a financial evaluation and recommendation of ability to pay." As the trial court explained to defendant at sentencing: " [T]hat's going to be something you have to deal with when you get out. If you cannot pay the fines, you can work with probation, the Department of Revenue and Recovery to modify the fines."
On appeal, defendant contends: (1) the trial court erred by failing to determine his ability to pay before imposing the probation supervision and urine testing fees; and (2) the trial court was not authorized to impose the urine testing fee because defendant was not convicted of any drug-related offense. We directed the parties to address in supplemental letter briefs whether section 1203.1b, or any other statutory provision, authorized imposition of the probation supervision fee in this case, where defendant was not granted probation nor given a conditional sentence, but was instead sentenced to serve a portion of his term on mandatory supervision pursuant to section 1170, subdivision (h). We conclude the answer is no. As we explain, the Legislature has given the trial court the authority to order a defendant to pay the reasonable cost of probation supervision " in any case in which a defendant is granted probation or given a conditional sentence." (§ 1203.1, subd. (a).) And while section 1170, subdivision (h), authorizes the trial court to suspend execution of a concluding [165 Cal.Rptr.3d 385] portion of a defendant's term, " during which time the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation" (§ 1170, subd. (h)(5)(B)(i)), we conclude this provision does not authorize the trial court to order a defendant to pay the cost of such supervision. Thus, regardless of whether the trial court failed to determine defendant's ability to pay, the order requiring defendant to pay the cost of probation supervision is unauthorized and must be stricken.
We also directed the parties to address in their supplemental briefs the question of whether the trial court possessed the authority to order defendant to pay the cost of urine testing, assuming such cost could not be imposed under section 1203.1ab (because defendant was not convicted of any offense involving the unlawful possession, use, sale, or other furnishing of any controlled substance) or section 1210.1 (because defendant was not convicted of a nonviolent drug possession offense). Defendant argues, as he did in his initial briefing on appeal, the trial court had no authority to order him to undergo urine testing, and therefore no authority to order him to pay the cost of such testing. The Attorney General argues the broad authority of a trial court to impose reasonable probation conditions under section 1203.1, subdivision (j), authorizes both an order to submit to urine testing and an order to pay for such testing. Read in conjunction with section 1170, subdivision (h)(5)(B), argues the Attorney General, such authority should also extend to defendant's case even though he was not granted probation, but Cal.Rptr.3d was instead ...