Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC894558
McAdams, J.
Defendant Michael Joseph Gomez was convicted by plea of one felony count of possession of marijuana for sale (Health & Saf. Code, § 11359). The court suspended imposition of sentence and placed defendant on formal probation for three years on the condition that he serve time in jail. On appeal, defendant raises a constitutional challenge to a condition of his probation that he “not associate with any individuals identified as members of a criminal street gang, as identified by the probation officer” Defendant also contends there is insufficient evidence to support the trial court’s order that he pay $200 in attorney fees. We will modify the probation condition, strike the attorney fees order, and affirm the judgment.
Facts and Procedural History
Since this case was resolved by plea before the preliminary examination and defendant waived a full probation report, the only facts regarding the underlying offense are those set forth in the complaint, which charged that defendant possessed marijuana for sale on February 4, 2008. At the time of the subject offense, defendant was 18 years old and had another matter pending in juvenile court for a violation of his juvenile probation.
On February 20, 2008, pursuant to the terms of a negotiated plea, defendant pleaded no contest to possession of marijuana for sale. At the sentencing hearing on March 21, 2008, the court suspended imposition of sentence and placed defendant on probation on the condition that he serve four months in county jail. The court also imposed certain “gang conditions,” including a condition that defendant “not associate with individuals identified as members of a criminal street gang, as identified by the probation officer” (hereafter sometimes the “gang association condition”). The language of this condition was based on the language in a “Waived Referral” memo from the probation department. At sentencing, the court stated, “The gang conditions, you had them as a juvenile. Now you have them as an adult.” The court urged defendant to talk to his attorney about the dangers and legal consequences of affiliating with gangs.
In addition to the condition at issue, the court imposed the following gang conditions: “You shall not frequent any areas of gang-related activity and not participate in any gang, as directed by your probation officer. [¶] You shall not use, display or possess any insignia, emblem, button, cap, hat, scarf, bandana, jacket, or any other article of clothing or any [sic] or evidence of membership in a criminal street gang, as directed by your probation officer. [¶] You shall not be on or adjacent to any school campus during school hours, unless enrolled or with prior administrative permission or prior permission of your probation officer. [¶] You may not obtain any new gang related tattoos, as directed by your probation officer. [¶] You shall not appear in any court proceeding, unless you are a party or unless you are a defendant in a criminal action or subpoenaed as a witness or with prior permission of you probation officer.” The language of these conditions was also based on language in the probation department memo.
The preprinted “Attachment Page” to the minute order on the sentencing hearing notes that “Gang Orders” were imposed, including “no association with gang members.”
The preprinted minute order form sets forth the following abbreviated version of the gang conditions: “No insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of clothing which is evidence of affiliations with/or membership in a gang, no association with gang members, do not frequent any areas of gang related activity. Shall not be adjacent to any school campus during school hours unless enrolled or with prior administrative permission. Shall not appear at any court proceeding unless a party, or defendant in a criminal action or subpoenaed as a witness. Register as required by law due to gang association.” (Italics added.)
At sentencing, the court ordered defendant to report to the Department of Revenue within three working days of being released form jail. After imposing other fines and fees, the court stated, “and there’s $200 in attorney’s fees.”
Defendant did not object to the gang association condition or the attorney fees order.
Discussion
I. Gang Association Condition
Defendant contends that the probation condition that he “not associate with individuals identified as members of a criminal street gang, as identified by the probation officer” is unconstitutionally vague and overbroad because it lacks “the element that [defendant] have personal knowledge of [the persons] his probation officer has identified as the gang members [he] must not associate with.” Defendant argues that the gang association condition must be modified to include language ordering him not to associate with persons who he personally knows are members of a street gang and suggests the following modification: “You are not to associate with any person whom you know, or whom the probation officer informs you, is a member of a criminal street gang.”
The Attorney General concedes that modification of the condition to include a knowledge requirement would be proper and suggests the following language: “The defendant is not to associate with individuals whom he knows to be identified by the probation officer as a member of any criminal street gang.”
“Because probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens. Accordingly, even a probation condition [that] infringes a constitutional right is permissible where it is ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ ” (People v. Peck (1996) 52 Cal.App.4th 351, 362; People v. Jungers (2005) 127 Cal.App.4th 698, 703.) “However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant.” (Jungers, at p. 704; see also In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
Against this framework, we review the trial court’s imposition of probation conditions for an abuse of discretion. “As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” ’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
“[T]he void for vagueness doctrine applies to conditions of probation.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) In examining whether a probation condition is void for vagueness, courts have considered whether the condition is “ ‘sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated’….” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ ” (Ibid.) This concept translates to the requirement of adequate notice. “ ‘ “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” ’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).)
“In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ ” (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. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Ibid.)
Our high court in Sheena K. determined that a probation condition requiring that the juvenile defendant there “not associate with anyone ‘disapproved of by probation’ ” was unconstitutionally vague “in the absence of an express requirement of knowledge . . . .” (Sheena K., supra, 40 Cal.4th at pp. 890, 891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) Thus, the probation condition gave the probation officer the power virtually to preclude the defendant’s association with anyone (id. at p. 890), which could theoretically include grocery clerks, mail carriers, and health care providers. Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer cured the infringement of the defendant’s constitutional rights. (Id. at p. 892.)
We agree with defendant that the gang association condition in this case is constitutionally defective because it lacks an explicit knowledge requirement. Here the court instructed defendant not to associate with “individuals identified as members of a criminal street gang, as identified by the probation officer.” Although the gang association condition requires that the probation officer identify persons who are members of criminal street gangs with whom defendant is not to associate, it does not require that that information be communicated to defendant. Absent a requirement that defendant know he is disobeying the condition, he is vulnerable to punishment for unwitting violations of it. (Lopez, supra, 66 Cal.App.4th at pp. 628-629.) We shall therefore accept the Attorney General’s concession and order a modification as set forth in the dispositional section of this opinion.
Attorney Fees Order
Defendant contends the trial court erred when it ordered him to pay $200 in attorney fees because there “is not a scintilla of evidence in the record that defendant had the ability to pay such a fee.” He asserts that while the trial court referred him to the Department of Revenue to conduct an evaluation of his ability to pay, it made the fee award without the benefit of that evaluation. He urges us to strike the fee award rather than remand for a hearing on his ability to pay, arguing that remand for further proceedings “would be an idle gesture and a waste of judicial resources.”
The Attorney General argues that defendant has forfeited any claim of error with regard to the attorney fees order, since he failed to object in the trial court. The Attorney General argues that this claim is not ripe for review and should be dismissed. He reasons that although the court assessed attorney fees in the amount of $200, it ultimately referred defendant to the Department of Revenue to determine his ability to pay the fees, that there is no order that defendant pay $200 in attorney fees, and that defendant’s obligation to pay fees remains contingent on a final determination of his ability to pay. Finally, although the Attorney General does not address defendant’s sufficiency of the evidence argument, he argues that if there was error, the proper remedy is remand for a hearing on defendant’s ability to pay.
Forfeiture
We reject the Attorney General’s contention that defendant forfeited this issue by failing to object below. Essentially, defendant’s claim is that there was insufficient evidence to support the court’s attorney fees order. A defendant cannot forfeit the right to challenge the sufficiency of the evidence in support of a court’s order. “Such a challenge requires no predicate objection in the trial court.” (People v. Viray (2005) 134 Cal.App.4th 1186, 1217, citing People v. Butler (2003) 31 Cal.4th 1119, 1126.)
Ripeness
Before we consider the sufficiency of the evidence, we address the Attorney General’s alternative argument that this issue is not ripe for appeal because the trial court did not actually determine defendant’s ability to pay or order that he pay attorney fees. The Attorney General contends that because the trial court referred defendant to the Department of Revenue for a determination of his ability to pay, “his obligation to pay fees remains contingent upon a final determination of his ability to pay.” Thus, the Attorney General’s argument implies that the court did not order attorney fees and committed no error. We disagree with this analysis.
At the sentencing hearing, immediately after placing defendant on probation, the court ordered defendant to report to the Department of Revenue “within three working days of getting out of … jail” and “fill out the appropriate forms so they will know your ability to pay fines and fees.” After imposing other fines and fees, the court stated, “and there’s $200 in attorney’s fees.” In ordering the $200 in attorney fees, the court made no mention of any qualification of the order or any future determination by the Department of Revenue. In the sentencing minute order, next to the heading “FINES/FEES: PAY TO[,]” the box for “Ref to DOR” is checked. The same order reflects that $200 in attorney fees was imposed at sentencing. On this record, we reject the Attorney General’s contentions that the court did not order defendant to pay $200 in attorney fees or that the court’s attorney fees order was contingent on the findings of the Department of Revenue.
Under Penal Code section 987.8, only the court may “make a determination” regarding a defendant’s ability to pay. (See § 987.8, subd. (b).) The Department of Revenue’s role, if any, is to inquire into the defendant’s ability to pay: “The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (Ibid., italics added.) Although the court may have intended to condition the precise amount of the fee on the Department of Revenue’s subsequent determination of defendant’s ability to pay, the court did order defendant to pay a fee pursuant to section 987.8. No provision was made for the Department of Revenue to report back to the court prior to a final determination of the issue and the court did not set a further hearing on defendant’s ability to pay.
All further statutory references are to the Penal Code unless otherwise stated.
As the trial court’s determination of the defendant’s ability to pay is a prerequisite to an attorney fees order, and we find such an order was made, we must consider whether there is sufficient evidence to support an implied finding by the court of defendant’s ability to pay.
Sufficiency of the Evidence to Support Fee Order
Section 987.8 provides in relevant part: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, … the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (§ 987.8, subd. (b).) Subdivision (c) of the statute provides that where a defendant was afforded such legal assistance and, “at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay….” (§ 987.8, subd. (c).) “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county….” (§ 987.8, subd. (e).)
“ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (§ 987.8, subd. (g)(2).) There is a presumption under section 987.8 that a defendant sentenced to prison does not have the ability to reimburse the costs of his defense. (People v. Flores (2003) 30 Cal.4th 1059, 1068.)
An order for attorney fees is not mandatory under section 987.8, and a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. (§ 987.8, subd. (e).) A finding of a present ability to pay need not be expressed, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) While the finding of a present ability to pay may be implied, the attorney fees order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
Here, the court ordered defendant to pay $200 in fees without conducting a hearing or making any findings regarding his ability to pay. Prior to the court’s order at the sentencing hearing, the court heard no evidence related to defendant’s education, employment, or financial status. The probation officer’s abbreviated report does not include any analysis regarding defendant’s ability to pay and does not recommend attorney fees, but simply notes, “Attorney fees if appropriate.” At the time of sentencing, defendant had only been 18 years old for a couple of months. It was March and, given his age, he may still have been in high school. On the other hand, there was no evidence regarding his education status; there was no evidence that he was employed or had ever been employed. The court ordered him to “Seek and maintain gainful employment and maintain academic and/or vocational training as directed by your probation officer.” The court then stated: “What that means in plain language is get a job or go back to school or go to a trade school so that you can eventually get a job.” However, this appears to be a general order and does not reflect defendant’s actual educational or employment position.
For all these reasons, we conclude that “there is no substantial evidence to support the trial court’s determination that [defendant] possessed the present ability to pay the sum assessed.” (People v. Kozden, supra, 36 Cal.App.3d at p. 920.) We also conclude that due to the modest amount of fees involved ($200), remanding this matter for further judicial proceedings is likely to result in additional expense that far exceeds the amount at issue. In the interests of judicial efficiency and economy, we shall therefore strike the order directing defendant to pay attorney fees.
Disposition
The trial court is ordered to modify the gang association condition in the judgment as follows: replace “You shall not associate with individuals identified as members of a criminal street gang, as identified by the probation officer” with “You shall not associate with individuals who you know are members of a criminal street gang or individuals who your probation officer has told you are members of a criminal street gang.” The court is also ordered to strike the attorney fees order. As so modified, the judgment is affirmed.
This is another in a long series of appeals in which we have been called upon to modify association conditions of probation (not just gang association conditions) to include knowledge requirements. We note that the problematic language in the gang association condition at issue in this case originated with the probation department. We urge the superior courts and the probation departments to act expeditiously to modify their standard, preprinted probation condition forms to comport with the modifications we order here, since a failure to do so may result in additional appeals such as this one. In the interest of judicial economy, we also ask probation officers, judges, prosecutors, and defense counsel to be on the alert for probation conditions that may have knowledge requirements and insure that language is included in the conditions, since the most expeditious way to correct these issues is in the trial court at the time of sentencing.
WE CONCUR: Mihara, Acting P.J., Duffy, J.