P. v. Randolph

Filed 10/17/06 P. v. Randolph CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed as modified.

Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to one count of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a))^[1]; in return, the remaining two counts were dismissed. Defendant was thereafter placed on formal probation for three years on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to submit to continuous monitoring by a Global Positioning System (GPS) device or other device as directed by the probation officer is invalid, unreasonable, and unconstitutional; (2) the probation condition requiring him to submit to and cooperate in field interrogations is vague, overly broad, and infringes upon his Fifth Amendment right against self-incrimination; and (3) there was insufficient evidence to support the trial court’s finding that he had the ability to pay attorney fees and the cost of probation and presentence investigation fees. We reject these contentions and affirm the judgment; however, we agree with defendant that probation condition No. 10 conditioning probation on compliance with the payment schedule cannot be imposed as a condition of his probation and must be stricken.

I

FACTUAL BACKGROUND^[2]

On June 22, 2003, Deputy Perea arrived at the home of Carmella Randolph to find that she had two black eyes and swelling on the right side of her face in the shape of a fist. Carmella told the deputy that the black eyes were inflicted by defendant the previous week and that the facial injury was due to his actions that day. Carmella had been married to defendant since 1997. At the preliminary hearing, she testified that she “never had two black eyes.”

On February 9, 2004, Sharmaine Anderson, defendant’s girlfriend and mother of five of his children, was attacked by defendant in her home. As she was walking down a hallway away from defendant, he attacked her from behind, pushing her three times. He then threw her up against a wall, causing her to fall to the floor. As she lay on the floor, defendant sat on her and choked her. When she began to scream for help, defendant began biting her hands and forearm.

II

DISCUSSION

A. Monitoring Device Probation Condition

Prior to sentencing, defense counsel objected to probation condition No. 30, requiring defendant to “[s]ubmit to continuous electronic monitoring, [GPS] device, or other device as directed by [his] probation officer.” Counsel explained that the GPS term was not reasonably related to the offense, as there was no evidence that defendant violated a restraining order, and that the term was originally intended for sex offenders. The trial court imposed the term, noting the case involved allegations of three separate violations of section 273.5 “in a relatively brief time . . . .”

Defendant contends the GPS term is unreasonable under the circumstances of this case, constitutionally overbroad, and infringes on his constitutional rights. We disagree.

“‘The primary goal of probation is to ensure ‘[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.’ [Citation.] [C]onditions of probation ‘are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it.’ [Citation.] In the granting of probation, the Legislature has declared the primary considerations to be: ‘the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.’ [Citation.] In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] ‘The court may impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ [Citation.] The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also § 1203.1; People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.)

As with any exercise of discretion, the sentencing court violates the above standard when its determination is arbitrary or capricious or “‘”’exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v. Carbajal, supra, 10 Cal.4th 1114 at p. 1121.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237), probationary conditions may nevertheless place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708 [“[a] condition of probation which requires a defendant to give up a constitutional right is not per se unconstitutional”].)

The California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 established the rule on probationary conditions: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (Id. at p. 486, fn. omitted, abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) It is well established that “probation conditions which regulate conduct ‘not itself criminal’ must be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’” (People v. Welch, supra, 5 Cal.4th 228, 233-234, quoting Lent, at p. 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal. App.3d 360, 365-366.)

In People v. Jungers (2005) 127 Cal.App.4th 698 (Jungers), the defendant pleaded no contest to committing corporal injury upon a cohabitant or child’s parent (§ 273.5, subd. (a)). He was granted probation, one of the conditions of which was that he only have “mutual” contact with the victim. After violating probation by, among other things, contacting or attempting to contact the victim, the court ordered that defendant have no contact with her, stating that the victim could contact defendant, but defendant could not contact her. The defendant later married the victim, Martinez, and sought modification of a probation condition that had restricted association between them. The court “clarified its ruling” by stating that the order did not preclude any contact between the defendant and his wife but precluded him from initiating the contact. The defendant complained on appeal that the modified condition violated, inter alia, his rights to association and marital privacy. (Jungers, supra, 127 Cal.App.4th at pp. 700-706.)

The Jungers court stated, “Probation is a privilege and not a right. [Citation.] Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.] ‘Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.’ [Citation.] Consequently, restrictions on a probationer’s right of association are permissible if reasonably required to accomplish the needs of the state. [Citations.] 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. [Citations.]” (Jungers, supra, 127 Cal.App.4th at pp. 703-704.)

The Court of Appeal continued, “Here, Jungers’s reasonable expectations of free association and marital privacy have necessarily been reduced by his conviction of a crime -- specifically, a felony involving domestic violence against Martinez. Nevertheless, the probation condition restricting Jungers’s ability to contact Martinez is valid only if it is reasonably necessary to accomplish the needs of the state and is narrowly tailored to accomplish this goal. We conclude it is.” (Jungers, supra, 127 Cal.App.4th at p. 704.)

Discussing the state’s interest in addressing domestic violence, the Jungers court explained, “The elimination of domestic violence is a compelling state interest. The Legislature’s stated purpose in enacting the Law Enforcement Response to Domestic Violence Act (§§ 13700-13731 . . .) was ‘to address domestic violence as a serious crime against society and to assure the victims of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide.’ [Citation.] The Legislature expressed its intent ‘that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated.’ [Citation.]

“Consistent with the Legislature’s response to the problem of domestic violence, section 273.5 punishes a defendant who inflicts corporal injury on a spouse. . . . ‘The statute reflects legislative recognition of the high incidence of violence in intimate relationships and the state’s interest in encouraging nonviolent intimate relationships.’ [Citation.] Further, when a defendant convicted of domestic violence is granted probation, the terms of probation must include ‘[a] criminal court protective order protecting the victim from further acts of violence, threats, stalking, . . . and harassment, and, if appropriate, containing residence exclusion or stay-away conditions.’ [Citation.]” (Jungers, supra, 127 Cal.App.4th at p. 704.)

The Jungers court continued, “Here, the court was required to issue a protective order for Martinez when it placed Jungers on probation, despite Martinez’s claim she did not fear for her safety. Although the court’s order curtailed Jungers’s rights of association and marital privacy, it legitimately and reasonably operated to accomplish the needs of the state in addressing domestic violence by rehabilitating Jungers and protecting Martinez. The state’s compelling interest in protecting victims of domestic violence justifies the restriction on Jungers’s right to initiate contact with Martinez. [Citations.]” (Jungers, supra, 127 Cal.App.4th at p. 705, fn. omitted, italics added.)

The footnote omitted from the above quote reads: “We note that victims of domestic violence often remain in abusive relationships. [Citation.] In this regard, domestic violence statutes are meant to protect ‘victims from participation or complicity in their own predicament.’ [Citation.]” (Jungers, supra, 127 Cal.App.4th at p. 705, fn. 3, italics added.)

Discussing the fact that the order was narrowly drawn, the Jungers court concluded, “The court did not impose a complete ban on association or marital privacy, but only a narrowly tailored condition consistent with Jungers’s rehabilitation and the safety of the victim. The condition prohibiting Jungers from initiating contact with Martinez does not require that he refrain from participating in visits, conversations and communications with her. It only assures that contact between them is acceptable to and welcomed by Martinez, thus supporting the state’s compelling interest in preventing further incidents of violence, threats and harassment. In this regard, the condition constitutes a reasonable restriction on the manner in which Jungers may communicate with Martinez. As drawn, the condition does not interfere with Jungers’s marital relationship to an impermissible degree.” (Jungers, supra, 127 Cal.App.4th at p. 705.)

Likewise, here the GPS term supports the state’s compelling interest in preventing future incidents of domestic abuse. The court did not prohibit any and all contact or association between defendant and the victim. Instead, the court imposed, as a probation condition, a term that would protect the safety of the defendant’s wife (and that of defendant’s girlfriend, who was also subject to domestic abuse by defendant) as well as ensure defendant’s compliance with his probation terms. Neither the condition in Jungers nor the present condition prohibited any and all contact. Although defendant is correct in noting that there is no record of a restraining order against defendant by the victim or a stay-away order prohibiting defendant from contact with the victim, the crime of domestic violence justifies increased surveillance and protection as noted by the Legislature. Further, the victim may seek to obtain a restraining order in the future; in that respect, probation condition No. 26 requires defendant to “[n]ot violate any restraining order obtained by” the victim. In addition, probation condition No. 25 prohibits defendant from attacking, striking, threatening, harassing, stalking or sexually abusing the victim. Nevertheless, the issue of the restraining order is a red herring. As the Jungers court pointed out, “victims of domestic violence often remain in abusive relationships,” and the victim’s wishes should not dictate the state’s interest in protection and deterrence. (Jungers, supra, 127 Cal.App.4th at p. 705, fn. 3, italics added.) The challenged condition here will allow for increased monitoring of defendant’s conduct and will deter defendant from committing another act of domestic violence against his wife and/or his girlfriend.

The trial court here reasonably imposed the GPS term, even if the victim claimed she did not fear defendant or that she had continued to have contact with defendant. Contrary to defendant’s assertion, the state’s compelling interest in protecting domestic violence victims justified the restriction on defendant’s right to associate with whomever he desires and his right to privacy. Domestic violence is not only a private harm, but it also affects society as a whole. (Jungers, supra, 127 Cal.App.4th at pp. 704-705.) Moreover, as mentioned, the court did not impose a complete ban on association or marital privacy. The condition did not require that defendant refrain from participating in visits, conversations, and communications with the victim. It only assured that contact between them was judicially acceptable and that defendant was abiding by the terms of his probation. Indeed, the record in the present case reflects there had been a history of domestic violence by defendant against his wife and his girlfriend. Defendant had twice attacked his wife in June 2003 and had attacked his girlfriend in February 2004.^[3] In addition, defendant had previously been arrested of domestic violence in December 1993. It was reasonable for the court to conclude that by monitoring defendant’s conduct with his wife, another violent episode could be avoided.

The GPS term is no different than the probation conditions requiring a defendant to submit to a polygraph examination, requiring a defendant to wear a monitoring ankle bracelet, or requiring defendant to submit to a warrantless search. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 505-506 [warrantless search]; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319-321 [polygraph examination]; People v. Zichwic (2001) 94 Cal.App.4th 944, 952 [tracking device]; People v. Miller (1989) 208 Cal.App.3d 1311, 1314 [polygraph examination].) We believe the GPS condition is necessary to help reform defendant by discouraging him from concealing future criminality and to ensure that defendant remains in compliance with probation. (See People v. Brewer (2001) 87 Cal.App.4th 1298, 1311 [a probation condition will be upheld as reasonably related to future criminality so long as it serves the statutory purpose of reformation and rehabilitation of the probationer].) Indeed, the condition would be more effective in preventing repeat offense -- and potentially seriously injuring or killing his wife (or his girlfriend) -- than a no-contact or restraining order would be. Additionally, this condition is impersonal, nonrestrictive, and less invasive of defendant’s privacy rights than the warrantless search condition that has repeatedly been upheld by appellate courts. (See e.g. People v. Bravo (1987) 43 Cal.3d 600, 608; People v. Balestra (1999) 76 Cal.App.4th 57, 65-67.) Balanced against the compelling state interest, we conclude the intrusion that may potentially be imposed on defendant’s privacy and association by use of the GPS device is justified.

B. Field Interrogation Probation Condition

Defendant next contends the probation condition requiring him to “submit to and cooperate in a field interrogation by any peace officer at any time of the day or night” violates his Fifth Amendment constitutional right against self-incrimination and is overly broad. We disagree.

As described above, trial courts have broad discretion in determining what conditions of probation will aid the reformation and rehabilitation of the defendant. (§ 1203.1; People v. Carbajal, supra, 10 Cal.4th 1114, 1120-1121.) Again, a condition will not be held invalid unless it has no relationship to the crime of which the defendant is convicted, relates to conduct which is not itself criminal, and requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d 481, 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow, supra, 227 Cal.App.3d 360, 366.)

Assuming, without deciding, that defendant did not waive this issue on appeal by failing to object below, defendant’s concern that the field interrogation condition is overly broad and serves no legitimate purpose is not well founded. Like the standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine whether the defendant is complying with the terms of his probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected search is to determine not only whether parolee disobeys the law, a basic condition of parole, but also whether he obeys the law; the condition helps measure the effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006 [probation is an alternative form of punishment, carrying with it certain burdens, such as a search term, which can be used as a correctional tool].)

This court observed in People v. Adams (1990) 224 Cal.App.3d 705 that “a warrantless search condition is intended and does enable a probation officer ‘”to ascertain whether [the defendant] is complying with the terms of probation; to determine not only whether [the defendant] disobeys the law, but also whether he obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.”’ [Citation.]” (Id. at p. 712.) In addition, as our Supreme Court observed, “[w]hen [warrantless search and seizure] conditions are imposed upon a probationer . . . , it is established that the individual ‘consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege.’ [Citation.]” (In re York, supra, 9 Cal.4th 1133, 1150, quoting People v. Bravo, supra, 43 Cal.3d 600, 608.)

Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendant’s compliance with conditions of his probation. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. A condition allowing field interrogations may further the dual purposes of deterring future offenses by the probationer and ascertaining whether he is complying with the terms of his probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation -- to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th 743, 752.)

Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, “‘ignore his interrogator and walk away’” (United States v. Mendenhall (1980) 446 U.S. 544, 553), it is related to the purposes of probation as described in People v. Lent, supra, 15 Cal.3d 481. It provides officers with a means of assessing defendant’s progress toward rehabilitation, it assists them in enforcing other terms of his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Lent, at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.

Here, defendant committed three separate acts of domestic violence against his wife and his girlfriend. We believe the field interrogation condition is necessary to help reform defendant by discouraging him from concealing future criminality and to ensure that defendant remains in compliance with probation. The field interrogation term is reasonably related to defendant’s future criminality. This term also serves a rehabilitative purpose.

Additionally, “interrogation” inherently means questions related to “seek solution of a crime.” (See Black’s Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationer’s compliance with the other terms of his or her probation as well as future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. It may be that this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. Moreover, as discussed in detail, post, it is unlikely that a probationer would likely be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions unrelated to the conduct of the probationer. Defendant is not new to the criminal justice system. He has a lengthy criminal history dating back to 1983 for numerous drug-related violations and resisting a peace officer. In all likelihood, he would know when a response would be incriminating, and this condition would assist defendant in maintaining compliance with the law and the terms of his probation.

Even assuming the challenged condition could have been more narrowly tailored, the fact that it was not does not render it invalid; rather, it simply must not exceed the bounds of reason. The challenged condition will provide a means to monitor defendant’s progress toward rehabilitation and deter future criminality. This is amply within the bounds of reason. Defendant claims the field interrogation condition implicates his Fourth, Fifth, and Fourteenth Amendment rights of personal liberty and security. We find no constitutional violation.

Defendant is not an ordinary citizen. He is a convicted felon who has been granted the privilege of probation. It has long been settled that certain constitutional rights can be limited where appropriate in the probation process. (See People v. Arvanites (1971) 17 Cal.App.3d 1052, 1063 [prohibition against planning and engaging in demonstrations was valid where defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969, overruled on other grounds in People v. Welch, supra, 5 Cal.4th 228, 237 [probation condition prohibiting defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable]; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where defendant battered police officers at an antiwar demonstration].) Because of his status as a felon, defendant may be detained and questioned by a peace officer without the requirement that the officer have at least a reasonable suspicion, based on articulable facts, that defendant is engaged in criminal activity. (See Terry v. Ohio (1968) 392 U.S. 1.) Although an ordinary citizen “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen [to a peace officer] or answer [any question put to him] does not, without more, furnish those grounds[,]” we repeat that defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on his constitutional right to remain silent is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state and his reform and rehabilitation while merely requiring him to submit to and cooperate in a field interrogation. Defendant still retains his Fifth Amendment rights, as discussed below. Furthermore, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479.

While probationers have long been required to “cooperate” with their probation officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege, and it would not be inherently uncooperative for him to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat in a requirement to “cooperate” with the probation officer].) Therefore, although defendant must cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434.) In Murphy, the Supreme Court explained that if a state attaches “[t]he threat of punishment for reliance on the privilege” against self-incrimination by asserting either “expressly or by implication . . . that invocation of the privilege would lead to revocation of probation . . . the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.” (Id. at p. 435.) However, defendant’s probation condition contains no such threat. It would not be inherently uncooperative for defendant to assert the Fifth Amendment; defendant could still follow instructions and answer nonincriminating questions. (See Davis, at p. 52.) Therefore, although defendant must generally cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. Furthermore, law enforcement officers may not engage in harassing questions, searches, or other limitations that, for example, have no relation to the crime for which defendant is under supervision. If the officer inquires into improper matters or otherwise acts improperly, defendant may present evidence at the probation violation hearing to show that the interrogation or conduct was arbitrary, capricious, harassing, or otherwise not reasonably related to the purposes for which he is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, and contrary to defendant’s assertion, the field interrogation condition does not allow law enforcement officials to awaken defendant “at any time or place.” Rather, the challenged condition requires defendant to submit to and cooperate in a field interrogation -- the condition does not allow officers to barge into defendant’s home and question him unnecessarily. Also, defendant may, when questioned, give a truthful answer, and his answer may be used at trial without offending the Fifth Amendment. His obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Minnesota v. Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require him, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because he has a duty to answer an officer’s questions truthfully, unless he asserts the privilege, it does not violate his right not to incriminate himself. The purpose of probation is, of course, defendant’s reformation and rehabilitation, and speaking truthfully to a peace officer is arguably an implied condition of probation. (See People v. Cortez (1962) 199 Cal.App.2d 839, 844.) Nevertheless, defendant is not required to give up his freedom to decline to answer particular questions. (Murphy, at p. 429.) The Constitution does not forbid the asking of incriminating questions (id. at p. 428), and the state in this case has neither expressly nor by implication threatened that invocation of the Fifth Amendment privilege would lead to revocation of probation.

The defendant in People v. Miller (1989) 208 Cal.App.3d 1311, 1315, who was required to submit to polygraph testing at the direction of his probation officer as a condition of probation, also argued that the condition violated his privilege against self-incrimination. The Miller court stated: “Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.” (Ibid.)

Moreover, the field interrogation condition is less intrusive than some of the other conditions of defendant’s probation, to which defendant raises no challenge. For example, condition No. 9, requires defendant to “[s]ubmit to a search and seizure of [his] person, residence and/or property under [his] control at any time of the day or night by any law enforcement officer, with or without a search warrant, and with or without cause . . . .” Additionally, condition No. 24, requires defendant to “[c]arry a copy of [his] terms and conditions of probation on [his] person at all times, and offer them to any peace officer upon contact.” Condition No. 16 forbids defendant from associating “with known convicted felons or anyone actively engaged in criminal activity.” Likewise, condition No. 17 prohibits defendant from associating “with known illegal users or sellers of controlled substances,” and condition No. 14 bans defendant from consuming any alcoholic beverages or enter places where such beverages are the primary item for sale and submit to tests at the direction of the probation officer.

“[Probation conditions] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism, [citation], and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes, [citation].” (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [97 L.Ed.2d 709, 107 S.Ct. 3164].) A probation condition therefore may be deemed reasonable if it “enable[s] the [probation] department to supervise compliance with the specific conditions of probation.” (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.) In summary, we note that the limitation on defendant’s liberty is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state -- his reform and rehabilitation -- while requiring him merely to submit to and cooperate in a field interrogation. And, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona, supra,384 U.S. 436. In these circumstances, we conclude that the condition is reasonable and not overbroad.

C. Payment of Fees

Lastly, defendant argues there was insufficient evidence to support the trial court’s finding that he had the ability to pay attorney fees and the cost of probation and presentence investigation fees. We disagree.

At sentencing, the trial court here found that defendant had the ability to pay court-appointed attorney fees. The court stated, “I will reduce them to $300. This is based on the past court history. There is no current employment. I think he is employable and able bodied and able to acquire work.” The court also found that defendant had the ability to pay the cost of probation and presentence investigation fees “based on the same reasons.” The court ordered defendant to pay a monthly payment in the amount of $82 for all of defendant’s obligations.

Defendant contends that because he was not advised of his right to a hearing on his ability to pay the cost of probation and presentence investigation fees and because he did not waive his right to have the court determine his ability to pay, as provided for in section 1203.1b, subdivision (a), the fees must be stricken. He also argues the trial court erred in requiring him to pay $300 in attorney fees, because it failed to follow the statutory procedures required before such fees can be imposed.

Section 1203.1b provides, in pertinent part, that if the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence probation report and determines the amount and manner of such payment, “[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (§ 1203.1b, subd. (a).)

Section 987.8, subdivision (b) provides that “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” of legal assistance provided through “the public defender or private counsel appointed by the court . . . .” Upon determining that the defendant does have “the present ability . . . to pay all or a part of the cost” of such legal assistance, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county. . . .” (§ 987.8, subds. (b), (e).)

The record does not indicate whether the probation officer advised defendant of his right to a hearing, and defendant did not expressly waive that right. Nor did the trial court conduct a hearing to determine defendant’s ability to pay the assessment. The People, however, argue that defendant has waived this claim for review on appeal because he did not object at the time of sentencing. We agree with the People.

The California Supreme Court has established, in a long line of cases beginning with People v. Walker (1991) 54 Cal.3d 1013 and continuing through People v. Welch, supra, 5 Cal.4th 228, People v. Scott (1994) 9 Cal.4th 331, and most recently People v. Gonzalez (2003) 31 Cal.4th 745, that nonjurisdictional sentencing issues not raised in the trial court are waived. In People v. Valtakis (2003) 105 Cal.App.4th 1066, Division Two of the First Appellate District held that this rule applies to assessments imposed pursuant to section 1203.1b. The court held that the statutory requirement of a knowing and intelligent waiver of the defendant’s right to a hearing applies only in the trial court and does not affect the normal rule that failure to object waives appellate review. (Valtakis, at pp. 1071-1072, 1076.) We agree.

Imposition of the assessment in the absence of a hearing or a waiver does not result in a sentence which is unauthorized and therefore in excess of the court’s jurisdiction. A sentence is unauthorized only if it could not lawfully be imposed under any circumstance in the particular case. Such an error is reviewable on appeal in the first instance only because it is independent of any factual issues presented by the record at sentencing. (People v. Scott, supra, 9 Cal.4th at p. 354.) In Valtakis, as in the present case, a probation assessment could have been lawfully imposed if the defendant had waived his right to a determination of ability to pay or if the court had held a hearing to make that determination. Thus, the error in imposing the assessment was procedural only and did not result in an unauthorized sentence. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1072.) It is therefore the kind of sentencing error to which the waiver rule applies. (Ibid.; Scott, at pp. 351, 356.)

Defendant here had notice that the probation department recommended imposition of court-appointed attorney fees as well as the cost of probation and the preparation of the probation report in the amount of $467. His failure to object to the assessments or to the amounts, or to object that he lacked the ability to pay such assessments, waived any claim of error on appeal.

Likewise, the People also urge us to disregard defendant’s claims that his statutory notice and hearing rights were violated because he failed to object below. That argument is well taken: “If a timely objection had been made, the trial court could have allowed further testimony on ability to pay under Penal Code section 987.8, could have allowed time to submit legal briefs on the issue, or could have scheduled further hearings to allow further preparation time.” (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395.) We therefore agree that defendant failed to preserve these claims for review.

However, a defendant’s challenge to the sufficiency of the evidence to support the sentencing court’s findings that he or she had the ability to pay the fees is not forfeited by failure to raise it below. (See, e.g., People v. Rodriguez (1998) 17 Cal.4th 253, 262; People v. Parra (1999) 70 Cal.App.4th 222, 224, fn. 2.)

In addition, we find that the record supports the conclusion that defendant had the ability to pay the nominal assessments and therefore suffered no prejudice from the trial court’s failure to hold a hearing to determine his ability to pay the assessments. (People v. Valtakis, supra, 105 Cal.4th at p. 1076 [if the reviewing court reaches the ability-to-pay issue, any error is not prejudicial unless there is a reasonable probability that, but for the error, the result would have been more favorable].) The reviewing court may examine the record to determine if there is evidence of the defendant’s ability to pay fees and costs. (Ibid.) Neither the statute nor subsequent case law interpreting it mandates a separate ability-to-pay hearing (People v. Phillips (1994) 25 Cal.App.4th 62, 76), and a determination of the ability to pay may be made at the sentencing hearing. (Ibid.) Thus, the hearing on defendant’s ability to pay was properly conducted at his sentencing hearing. In regard to the payment of attorney fees, although the record does not contain evidence that the trial court advised defendant of his potential liability for repayment of fees when counsel was first appointed, the section 987.8 attorney fee order will not be set aside where there is no prejudice. (People v. Smith (2000) 81 Cal.App.4th 630, 638-639.) In both circumstances, we find no prejudice here.

While defendant was presumably not advised of the potential for a fee order at the time of appointment of counsel, he received notice of that possibility before sentencing. His plea declaration contained a paragraph which stated, “a judge may later direct [him] to pay such part of the cost of the attorney as the judge determines that [he is] able to pay,” and he initialed the paragraph indicating his agreement. The probation report prepared for his sentencing hearing recommended, inter alia, “that the court find[] that the defendant does have the present ability to pay appointed counsel fees in the amount of $500.00^[4] (Felony) through Central Collections.” The probation report also recommended that “the court find that the defendant has the present ability to pay the cost of conducting the pre-sentence investigation and preparing the report pursuant to [s]ection 1203.1(b) . . . . Therefore the defendant is ordered to pay $467.00 through Central Collections.” Defendant was present and represented at his sentencing hearing, and the record contains no suggestion that he was surprised by the order for repayment of attorney fees. (See People v. Phillips, supra, 25 Cal.App.4th at p. 75.) Finally, as in Smith, defendant “does not suggest that he would have foregone representation by appointed counsel had he been advised of the possibility that he might have to pay all or a portion of the costs of those services.” (People v. Smith, supra, 81 Cal.App.4th at p. 639.) In view of the foregoing, we find no prejudice, and, as discussed below, we find substantial evidence supports the trial court’s express finding of defendant’s ability to pay.

“Ability to pay” is statutorily defined as “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him . . . .” (§ 987.8, subd. (g)(2).) The factors include: “(A) The defendant’s present financial position. (B) The defendant’s reasonably discernible future financial position . . . . (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.” (Ibid.)

The determination that a defendant possesses the ability to pay may be implicit, provided it is supported by substantial evidence. (People v. Phillips, supra, 25 Cal.App.4th 62, 71-72.) When the issue on appeal is sufficiency of the evidence, “we must draw all reasonable inferences in favor of the judgment. [Citation.]” (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)

In the present matter, there was sufficient evidence in the record to reflect the trial court’s express finding of defendant’s ability to pay. According to the probation officer’s report, though defendant was presently unemployed, he had an eleventh grade education and special training in “maintenance.” In addition, defendant had previously been employed at a maintenance company, and he had worked six months at that job until he was laid off. Further, defendant had no debts or child support obligations. His health was described as “fine.” He was not on any medication and had denied any substance abuse problems. The record shows defendant did not object that he lacked ability to pay the small monthly payment or that the probation report inaccurately reported he is a healthy, able-bodied, 44-year-old man. Furthermore, there is nothing in the record to suggest he is physically, mentally, or emotionally unable to find and maintain productive employment. “Ability to pay does not necessarily require existing employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785; see People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [finding of ability to pay upheld where there was no evidence the defendant was physically or mentally unable to find legitimate employment upon completion of his sentence].) Given this information, there was sufficient evidence to assess defendant’s financial circumstances at the time of the sentencing hearing, which showed defendant had the ability to pay the costs of the presentence probation report as well as counsel fees in the amount of $300.

Nevertheless, defendant aptly argues that the order for payment of probation costs and attorney fees cannot be imposed as a condition of probation. Probation condition No. 10 reads: “COMPLY WITH ANY COURT ORDERED PAYMENT SCHEDULE.” The total monthly payment for all ordered assessments was set at $82 per month. This was error because probation fees, attorney fees, and restitution are collectible as civil judgments but cannot be imposed as probation conditions. (People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5; People v. Washington (2002) 100 Cal.App.4th 590, 592-593; People v. Hart (1998) 65 Cal.App.4th 902, 906-907.) Consequently, probation condition No. 10 conditioning probation on compliance with the payment schedule cannot be imposed as a condition of defendant’s probation. Therefore, it must be deleted.

III

DISPOSITION

The judgment is modified to delete probation condition No. 10, to the extent it requires the payment of the fees and costs as a probation condition. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

I concur:

GAUT

J.

KING, J., Concurring and dissenting.

Because one of defendant’s victims was a nonlive-in girlfriend, I concur relative to the propriety of the term and condition of probation dealing with GPS monitoring. I further concur that defendant waived his claim relative to the payment of fees, in that he did not object at the time of sentencing.

I dissent regarding the term and condition of probation dealing with field interrogation. The term should be limited to allow field interrogation of the probationer relative to his criminality and compliance with the other terms and conditions of probation.

The term provides: “Submit to and cooperate in a field interrogation by any peace officer at any time of the day or night.”

I believe the provision is overbroad. The general propriety of such a term has been recognized. (See Minnesota v. Murphy (1984) 465 U.S. 420 [104 S.Ct. 1136, 79 L.Ed.2d 409].) It must nonetheless be tailored, so that it is reasonably related to the crime of which defendant was convicted, or to defendant’s future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) By its provision, the term allows for the probationer to be interrogated as to any subject matter, whether related or unrelated to the conduct of the probationer.

/s/ King

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is taken from the preliminary hearing transcript.

^[3] Defendant argues the trial court improperly considered dismissed counts in imposing the GPS condition. Defendant is mistaken. The record shows that defendant specifically agreed, as part of his plea agreement, to allow the court to consider the dismissed counts by giving a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)

^[4] The court later reduced this amount to $300.