P. v. Szypusz

Filed 2/28/07 P. v. Szypusz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Elva R. Soper, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed as modified.

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

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to possession of a controlled substance, to wit, cocaine, (Health & Saf. Code, 11350, subd. (a)) (count 1) and receiving stolen property (Pen. Code, 496, subd. (a)) (count 3). In return, the remaining allegations for possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (count 2) and driving without a valid drivers license (Veh. Code, 12500, subd. (a)) (count 4) were dismissed. The People also dismissed a pending case which charged defendant with a separate violation of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)). Defendant was granted three years of formal probation on various terms and conditions, including that she serve 270 days in county jail.

On appeal, defendant contends (1) the probation condition requiring her to submit to and cooperate in field interrogations infringes upon her Fifth Amendment constitutional right against self-incrimination and is unconstitutionally overbroad; (2) there was no evidence to support the trial courts finding that she had the ability to pay the cost of probation supervision; and (3) the trial court erred in ordering the cost of probation supervision as a condition of probation.

I

FACTUAL BACKGROUND^[1]

On November 26, 2005, defendant was pulled over for a routine traffic stop. Upon an officers inquiry, defendant was unable to provide any identifying information or registration for the car. While the officer was attempting to verify the information she provided, defendant admitted that she had a methamphetamine pipe. She retrieved the pipe from her bra and gave it to the officer. Since defendant was driving without a valid drivers license, the car was towed and impounded. Upon an inventory search of the vehicle, the officer found 0.8 grams of cocaine, 0.7 grams of methamphetamine, and 0.3 grams of marijuana. The officer also recovered one social security card, three California drivers licenses, and a credit card, none of which belonged to defendant.

II

DISCUSSION

A. Field Interrogation Condition

At sentencing, defense counsel objected to probation condition No. 19, which requires defendant to [s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night, as unconstitutional and overbroad. The court denied the request to strike this condition.

Defendant contends probation condition No. 19 requiring her to submit to a field interrogation violates her constitutional right against self-incrimination and is overbroad. 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 courts 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 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 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, 366.)

Defendants 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 or her 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 or she 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 (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo, supra, 43 Cal.3d at p. 608.)

Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendants compliance with conditions of her probation. Also, information obtained from field interrogations will provide a valuable measure of her amenability to rehabilitation, which is related to her future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether she is complying with the terms of her probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation â€‘‑ to determine not only whether she disobeys the law, but also whether she 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 h[er] interrogator and walk away (United States v. Mendenhall (1980) 446 U.S. 544, 553 [100 S.Ct. 1870, 64 L.Ed.2d 497]), 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 defendants progress toward rehabilitation, it assists them in enforcing other terms of her probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Id. at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.

Here, defendant committed the crimes of possession of three different types of controlled substances, receiving stolen property, and driving without a valid drivers license. She admitted to possessing a methamphetamine pipe and the drugs. She also admitted to planning on using all of the drugs, even though she was four months pregnant and had stated that she did not use drugs while pregnant. She further admitted to using methamphetamine and marijuana for the past 13 years on a daily basis and having a problem with drug abuse. She claimed that she wanted to begin a new life that does not involve the use of drugs and to work and take care of her children. In addition to her substance abuse problems, defendant has a proclivity to commit theft-related crimes as evidenced by her criminal record. As evidenced by defendants admissions and desire to change, we believe the field interrogation condition is necessary to help reform defendant by discouraging her from abusing drugs, committing crimes to foster her drug habit, or concealing future criminality and to ensure that defendant remains in compliance with probation to allow her to achieve success in changing her lifestyle. The field interrogation term is reasonably related to defendants future criminality.

Additionally, interrogation inherently means questions related to seek solution of a crime. (See Blacks 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 probationers 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. This condition would assist defendant in maintaining compliance with the law and the terms of her probation.

Again, even assuming the challenged condition could have been more narrowly tailored, that does not render it invalid; rather, it simply must not exceed the bounds of reason. The challenged condition will provide a means to monitor defendants progress toward rehabilitation, and deter future criminality. This is amply within the bounds of reason.

Defendant claims the field interrogation condition implicates her Fifth Amendment right against self-incrimination. We find no constitutional violation.

Defendant is not an ordinary citizen. She is a convicted felon who has been granted the privilege of probation. In fact, considering defendants criminal record, defendant is quite lucky to be on 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 the defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969 [probation condition prohibiting the defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable], overruled on other grounds in People v. Welch, supra, 5 Cal.4th 228, 237; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where the defendant battered police officers at an antiwar demonstration].) Because of her 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 [88 S.Ct. 1868, 20 L.Ed.2d 889].) 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[103 S.Ct. 1319, 75 L.Ed.2d 229].) The impingement on her constitutional right to remain silent is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state and her reform and rehabilitation while merely requiring her to submit to and cooperate in a field interrogation. Defendant still retains her 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 [86 S.Ct. 1602, 16 L.Ed.2d 694].

While probationers have long been required to cooperate with their probation officers, a probationer is not foreclosed from asserting her Fifth Amendment privilege, and it would not be inherently uncooperative for her to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 (Davis) [finding no realistic threat in a requirement to cooperate with the probation officer].) Therefore, although defendant must cooperate with the police, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434 [104 S.Ct. 1136, 79 L.Ed.2d 409] (Murphy).) 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 probationers answers would be deemed compelled and inadmissible in a criminal prosecution. (Id. at p. 435.) However, defendants 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, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right.

Furthermore, 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 she is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, 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 defendants home and question her unnecessarily. Also, defendant may, when questioned, give a truthful answer, and her answer may be used at trial without offending the Fifth Amendment. Her obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require her, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because she has a duty to answer an officers questions truthfully, unless she asserts the privilege, it does not violate her right not to incriminate herself. The purpose of probation is, of course, defendants 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 her 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 examiners 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 defendants probation that defendant does not challenge. For example, condition No. 9 requires defendant to [s]ubmit to a search and seizure of [her] person, residence and/or property under [her] 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. (Italics added.) Additionally, condition No. 4, requires defendant to [c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer. 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.

Defendant recognizes that under Murphy a probation condition which merely requires a probationer to be truthful does not violate a persons right against self-incrimination. (Murphy, supra, 465 U.S. at p. 436.) The condition here is similar. The obligation to cooperate entails the general obligation to appear and to answer questions truthfully, just as in Murphy and Davis, supra, 242 F.3d 49. Defendant is constrained by the condition from doing something which is otherwise lawful, i.e., she may not simply ignore [her] interrogator and walk away (United States v. Mendenhall, supra, 446 U.S. at p. 553), but it is integral to the purposes of probation as described in Lent, supra, 15 Cal.3d 481. It provides officers with a means of assessing defendants progress toward rehabilitation, it assists them in enforcing other terms of her probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria.

Additionally, as explained above, interrogation inherently means questions related to seek solution of [a] crime. (See Blacks Law Dict., supra, 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 probationers compliance with the other terms of his or her probation, i.e., future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. This limitation is implicit in the language of the probation condition, and may stand without modifying the language of the condition. Moreover, pursuant to this decision, we hold that a probationer may not be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions, where those questions are unrelated to the conduct of the probationer.

In summary, we note that the limitation on defendants liberty is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state â€‘‑ her reform and rehabilitation â€‘‑ while requiring her merely to submit to and cooperate in a field interrogation. 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 constitutional.

B. Ability to Pay Probation Supervision

The probation officer recommended that defendant had the present ability to pay: (1) the cost of appointed counsel in the amount of $500; (2) the cost of conducting the presentence investigation and preparing the presentence report pursuant to Penal Code section 1203.1, subdivision (b)^[2]in the amount of $505; and (3) to pay probation supervision fees pursuant to section 1203.1, subdivision (b), in the amount of $15 a month. The probation officer also recommended that the court order defendant to reimburse the City of Colton pursuant to Government Code section 29550.1 in the amount of $79.86, show proof of payment to the probation officer within 90 days from release from custody, and pay any restitution fines pursuant to sections 1202.4 and 1214. The total monthly payment for all ordered amounts was set at $66, with the first payment to begin 90 days after defendants release from custody.

At trial, defense counsel requested that the trial court strike the investigative costs, or at the very least minimize those. The trial court thereafter inquired, Has she got the ability to pay them? Defense counsel replied, Well, she is currently pregnant. She has three more children at home and she is doing 270 days. So that . . . would pose problems for anybody. And I dont think [the prosecutor] would object. The prosecutor asserted, Thats correct, your Honor. In addition, defense counsel also asked that the statutory probation revocation restitution fine be reduced to $200. The prosecutor responded, Make it $220. Defense counsel did not object to the probation supervision fee of $15 a month.

The trial court ruled that defendant did not have the present ability to pay for appointed counsel or investigative costs. However, the court impliedly found that defendant had the ability to pay $79.86 for reimbursement to the arresting agency and the probation supervision fee of $15 a month.^[3]

Defendant argues the trial court erred in imposing the probation supervision fee without conducting a hearing on her ability to pay or taking a knowing and intelligent waiver of such hearing. She also claims there was no evidence to support the courts implied finding that she had the ability to pay the cost of probation supervision in the amount of $15 per month.

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 any probation supervision 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 defendants 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).)

The record does not indicate whether the probation officer advised defendant of her right to a hearing, and defendant did not expressly waive that right. Nor did the trial court conduct a hearing to determine defendants ability to pay the assessment. The People rebut, however, that defendant has waived the issue for review on appeal because she did not object to this particular issue at the time of sentencing.

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 (Valtakis), Division Two of the First Appellate District held that this rule applies to assessments imposed pursuant to section 1203.1b. In Valtakis, the presentence report recommended assessment of a $250 probation service fee, pursuant to section 1203.1b, but the report contained no determination of the defendants ability to pay the fee or advisement of a right to a separate hearing on the issue. (Valtakis, at p. 1069.) Without any objection from the defendant or his attorney, the sentencing court ordered payment of the fee. (Ibid.) On appeal, the defendant contended imposition of the fee was error because the probation department and the trial court did not comply with the section 1203.1b probation fee procedures: the probation officer made no express finding of his ability to pay and gave him no notice of the right to a separate court hearing, and the court did not hold a separate hearing or make its own determination; thus, he could not have made a knowing and intelligent waiver of his right to a hearing because he lacked notice of the right. (Valtakis, at pp. 1070-1071.)

Valtakis held that section 1203.1b, subdivision (a)s requirement of a knowing and intelligent waiver of a defendants right to an ability-to-pay hearing is subject to the general rule that failure to raise the issue below waives any claim of error on appeal. (Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072, 1076.) It rejected the defendants argument that its holding would render meaningless section 1203.1b, subdivision (a)s provision that the defendant must knowingly and intelligently waive the right to a determination by the court of his ability to pay, because the context of the entire statute involves the procedures to be followed by the trial court in determining whether to hold a hearing on the ability to pay. (Valtakis, at p. 1073.) [T]he 1995 amending language [specifying a right to a separate hearing, notice of the right, and a knowing and intelligent waiver] appears designed to clarify that [the defendants] acquiescence must now occur actively, not passively, and upon a knowing and intelligent waiver. [] [Additionally], the waiver language does not speak to appellate review. The context involves trial court procedures . . . , and the Legislature was presumably aware of the long-established principles exemplified in Welch and Scott [citation] and that defendants, unless exercising their right to self-representation, enjoy the assistance of counsel, counsel who are familiar with the need to preserve claims of error by objection. (Id. at p. 1075.)

Valtakis also observed that to construe section 1203.1b, subdivision (a)s waiver language as abrogating the Welch and Scott rule that failure to object waives the claims of error on appeal would work results horribly at odds with the overarching cost conservation policy of section 1203.1b, subdivision (a). (Valtakis, supra, 105 Cal.App.4th at p. 1075.) Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive. (Id. at p. 1076.)

We agree with the reasoning and result of Valtakis and conclude defendant forfeited the right to raise the issue of noncompliance with section 1203.1b on appeal by failing to raise it below. The probation officer in his report specifically recommended the trial court find defendant had the ability to pay the cost of probation supervision in the amount of $15 per month. Defendant had notice that the probation department recommended imposition of this fee. Defense counsel had an opportunity to review the report and recommendations. However, counsel failed to object, even after being given an opportunity to object. Defense counsel challenged numerous parts of the probation report without objecting to the probation reports recommendation regarding defendants ability to pay the cost of probation supervision. Though defense counsel raised the issue of defendants ability to pay for her appointed counsel and the cost of conducting and preparing the presentence report, counsel failed to object to defendants ability to pay the probation supervision fee, presumably because the fee was nominal. In addition, just because the trial court found that defendant did not have the ability to pay for her appointed counsel and the presentence report does not mean the court would have found that defendant did not have the ability to pay for the nominal cost of probation supervision, as defendant suggests. Defendants failure to object to the assessment or to the amount, or to object that she lacked the ability to pay such an assessment, waived any claim of error on appeal.

Defendant tries to avoid this result by arguing her substantial evidence claim is an exception to this general rule. Defendant is correct that a defendants challenge to the sufficiency of the evidence to support the sentencing courts 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.) Nonetheless, we find that the record supports the conclusion that defendant had the ability to pay the nominal cost of probation supervision and therefore suffered no prejudice from the trial courts failure to hold a hearing to determine her ability to pay the assessment. (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 defendants 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 defendants ability to pay was properly conducted at her sentencing hearing.

Ability to pay is statutorily defined as the overall capability of the defendant to reimburse the costs, or a portion of the costs, of . . . probation supervision . . . . ( 1203.1b, subd. (e).) The factors include: (1) the defendants present financial position; (2) the defendants reasonably discernible future financial position for the year following the hearing; (3) the likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing; and (4) [a]ny other factor or factors that may bear upon the defendants financial capability to reimburse the county for the costs. ( 1203.1b, subd. (e)(1)-(4).)

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 support the trial courts implicit finding of defendants ability to pay. According to the probation officers report, though defendant was presently unemployed and pregnant with her fourth child, she had a 10th grade education and was only 29 years old. She also informed the probation officer that she desired to be able to obtain work. Her health was described as good, and she was not on any medication. The record shows defendant did not object that she lacked ability to pay the small monthly payment for probation supervision. She is a healthy, young, able-bodied woman, and there is nothing in the record to suggest she 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 defendants financial circumstances at the time of the sentencing hearing, which showed defendant had the ability to pay the cost of probation supervision of $15 a month.

C. Cost of Probation as a Condition of Probation

Defendant next aptly argues, and the People correctly concede, that the trial court improperly included in the terms and conditions of probation the requirement that defendant pay probation costs 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 $66 per month.

A defendant who is granted probation may be ordered to pay the reasonable costs of probation, but the payment of such collateral costs cannot be made a condition of probation. ( 1203.1b; People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action. (Brown, at p. 322; People v. Hart (1998) 65 Cal.App.4th 902, 907.) Any order for payment of probation costs should be imposed as a separate order. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1068.)

Accordingly, the order here was an 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. Hart, supra, 65 Cal.App.4th at pp. 906-907.) Consequently, probation condition No. 10 conditioning probation on compliance with the payment schedule cannot be imposed as a condition of defendants 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

J.

We concur:

RAMIREZ

P.J.

HOLLENHORST

J.

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^[1] The factual background is taken from the probation officers report.

^[2] All future statutory references are to the Penal Code unless otherwise stated.

^[3] The trial court specifically stated, All right. . . . Court finds the defendant does not have the present ability to pay for appointed counsel or investigative costs. She would pay $79.86 for reimbursement to the arresting agency. She will pay probation supervision at $15 per month. [] . . . [] Total payments will be $66 a month beginning 90 days after her release from custody. . . . And probation revocation restitution fine is imposed in the amount of $220. The court thereafter asked defendant whether she accepted the terms and conditions of probation. Defendant replied, Yes, maam.