P. v. Edwards













Filed 2/4/13 P. v. Edwards 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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, v. ELISHA EDWARDS, Defendant and Appellant.

C071257 (Super. Ct. No. 12F02732)

name="_BA_ScanRange">Defendant Elisha Edwards pleaded no contest to href="http://www.fearnotlaw.com/">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 ADDIN
BA xc <@st> xl 27 s ASMXFR000001 l "Penal Code section
1203.1ab" Penal Code section 1203.1ab (undesignated
statutory references are to the ADDIN
BA xc <@ost> xl 10 s ASMXFR000008 xpl 1 l "Penal Code" 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.

background

At sentencing, href="http://www.mcmillanlaw.com/">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.”

Discussion

Defendant contends the trial court
erred in imposing the urinalysis testing fee because there is href="http://www.mcmillanlaw.com/">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 $25 urinalysis testing fee. We presume it intended to impose the fee
under ADDIN BA xc <@$st> xl 16 s
ASMXFR000001 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. ( ADDIN BA xc <@cs> xl 47 s ASMXFR000003
xhfl Rep xpl 1 l "People v.
Nilsen(1988) 199 Cal.App.3d 344" People
v. Nilsen (1988) 199 Cal.App.3d 344, 347; ADDIN
BA xc <@cs> xl 46 s ASMXFR000004 xhfl Rep xpl 1 l ">People v. Kozden(1974) 36
Cal.App.3d 918" People
v. Kozden (1974) 36 Cal.App.3d 918, 920.)

ADDIN
BA xc <@$st> xl 16 s ASMXFR000001 Section 1203.1ab does not define “ability to
pay,” but other, analogous statutes define it as requiring the trial court to
consider defendant’s present financial position, his reasonably discernible
future financial position, the likelihood that the defendant can obtain
employment in the reasonably near future, and any other factor which may bear
upon the defendant’s financial capability.
(E.g., ADDIN BA xc <@osdv> xl 20 s
ASMXFR000009 xpl 1 l "§ 1203.1b, subd. (e)" § 1203.1b, subd. (e) [ability to
reimburse probation costs]; ADDIN
BA xc <@osdv> xl 20 s ASMXFR000010 xpl 1 l "§ 1203.1c,
subd. (b)" § 1203.1c, subd. (b) [ability to
reimburse incarceration costs]; ADDIN
BA xc <@osdv> xl 27 s ASMXFR000011 xpl 1 l "§ 987.8,
subdivision (g)(2)" § 987.8, subdivision (g)(2) [ability to
reimburse attorney fees].)

Here, the court’s order that
defendant pay a $25 drug testing urinalysis fee was not supported by substantial
evidence of defendant’s ability to pay any amount. The trial court did not conduct an
on-the-record hearing to consider the issue, and the only fact in the record is
defense counsel’s statement at sentencing that defendant receives SSI payments. The record contains no other evidence of
defendant’s income, assets, or reasonably discernible future financial
position, or any other factor bearing on his ability to pay the fee. In his brief on appeal, defendant represents
that the maximum federal SSI monthly payment amount is $698, and the mandatory
fines otherwise imposed in this case account “for almost an entire month’s SSI”
benefits.

We disagree with the People that
this appeal should be dismissed as moot because defendant has “already received
the relief he seeks,” inasmuch as the trial court has entered an order allowing
him a hearing on whether he has the ability to pay the urinalysis fee. Defendant has not obtained the relief he
requested--elimination of the fee--and dismissing this case as moot so that
defendant may “make a further request of the court to schedule” a hearing on
his ability to pay, as the People suggest, is not appropriate.

Nor, under the circumstances, shall
we remand for the trial court to determine defendant’s ability to pay the $25
drug testing urinalysis fee, in light of defense counsel’s indication that
defendant was disabled for purposes of receiving SSI benefits, in which event
defendant has little “reasonably discernible future financial position” to pay
the fee, or an ability to soon obtain employment to enable him to pay it. Instead, we shall strike the attorney fee
order without remand in the interest of judicial economy. (Cf. ADDIN
BA xc <@cs> xl 72 s ASMXFR000005 xhfl Rep xpl 1 l ">People v. Walker(1991) 54
Cal.3d 1013, overruled on other grounds" People
v. Walker (1991) 54 Cal.3d 1013, 1029, overruled on other grounds by ADDIN
BA xc <@cs> xl 47 s ASMXFR000006 xhfl Rep xpl 1 l ">People v. Villalobos(2012)
54 Cal.4th 177" People
v. Villalobos (2012) 54 Cal.4th 177, 183 [judicial economy warranted
modifying judgment on review to reduce restitution fine to statutory minimum
rather than remand for determination of appropriate amount of fine]; ADDIN
BA xc <@cs> xl 48 s ASMXFR000007 xhfl Rep xpl 1 l ">People v. Taylor(2004) 118
Cal.App.4th 454" People
v. Taylor (2004) 118 Cal.App.4th 454, 456.)

Disposition

The order directing defendant to pay
a $25 urinalysis testing fee is stricken.
The clerk of the superior court is also directed to correct the minutes
of the April 19, 2012, and September 27, 2012, hearings to reflect
that the orders directing defendant to pay a $25 urinalysis testing fee has
been stricken. The judgment is otherwise
affirmed.







HULL ,
Acting P. J.





We concur:







MURRAY , J.







DUARTE , J.