1 Filed 7/30/14 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. LARRY MICHAEL SMITH, Defendant and Appellant. E058585 (Super.Ct.No. FSB1105827) OPINION

APPEAL from the Superior Court of San Bernardino Count y. Bridgid M. McCann, Judge. Affirmed as modified. Jeanine G. Strong, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, William M. Wood, Meagan J. Beale and Felicity Senoski, De puty Attorneys General, fo r Plaintiff and Respondent.2 Defendant Larry Smith is on three years of formal probation after a jury convicted him of grand theft of personal property for taking construction equi pment and other items from the property he was renting. Although he agreed to them at sentencing, defendant now challenges the probation conditions regardin g alcohol and the finding that he has the ability to pay $200 for counsel fees. As discussed belo w, we modify the judgment to strike the counsel fees but otherwise affirm.
F ACTS AND P ROCEDURE Defendant operated an automobile repair business on property he rented. When the property owner re-entered the property after evicting defendant for non-payment of rent, he found that the locks on his storag e containers had been cut and approximately $50,000 worth of construction equipment had been stolen. The property owner was able to trace much of the equipmen t to people who purchased it from defendant, believing it was his to sell. Defendant admitted to ta king and selling the equi pment but claimed he was justified in doing so because he sust ained unreimbursed losses when the property flooded. On January 30, 2013, a ju ry convicted defendant of grant theft of personal property. (Pen. Code, § 487, subd. (a).) 1 On March 4, 2013, at the outset of the se ntencing hearing, defense counsel stated “I have gone over the terms with him and he indicates he can comply with probation.” The trial court then sentenced defendant to three years of formal probation on condition

1 All further references are to the Penal Code unless otherwise indicated.3 that he serve 180 days in county jail. In condition number 15, the court ordered that defendant “Neither possess nor consume any al coholic beverages nor enter places where such beverages are the chief item of sale, a nd submit to tests at the direction of the probation officer.” In condition number 16, the court ordered defendant to attend counseling; in condition numb er 23, NA/AA meetings. Th e court also found that defendant “has the present ability to pay appointed counsel fees in the amount of $200.00 . . . .” The probation officer’s re port recommended a finding that defendant could pay counsel fees of $500. However, th e court reduced the amount to $200 “in the interest of getting restitution” to the property owner. The tria l court then asked defendant “Do you accept probation on the remaining term s and conditions?” Defendant answered, “Yes, ma’am.” Finally, at the very end of the sentencing hearing, the court again asked defendant, “You accept proba tion on those terms?” and defendant again answered, “Yes, ma’am.” At no point during the hearing di d defense counsel object to any of the probation terms or to the fees imposed, othe r than asking the court “to set the fines and fees at their minimum since he’s going to have actual restitution,” which was to be determined at a restitution h earing set for May 24, 2013. This appeal followed.
D ISCUSSION 1. Alcohol-Related Probation Conditions Defendant challenges the alcohol-relate d conditions of his probation on two separate grounds. The first is that they are not reasonably related to defendant’s theft4 offense and his particular circumstances. The second is that they are unconstitutional on their face because they are both overbroad and not narrowly tailore d. As discussed below, defendant waived his right to challeng e the conditions as they relate to him in particular. Further, while de fendant did not waiv e the constitutional ch allenges to these conditions, he neither fully supports his challe nges with specific case law nor carries his burden as appellant to establis h error by the trial court.

a. Arguments Specific to Defendant are Waived At the time of sentencing, the trial court adopted the probation conditions listed in the probation report. As descri bed above, defendant twice told the court that he agreed to the probation terms and conditions, and there was otherwise no objecti on by defendant. We agree with the People that defendant wa ived his right to challenge the alcoholrelated probation conditions as a pplied to him in particular be cause he failed to object to them at the sentencing hearing. Courts have broad discre tion to impose conditions of probation that foster rehabilitation or protect pub lic safety. (§ 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Appellate courts, “review conditi ons of probation for a buse of discretion. [Citations.] Generally, ‘[a] cond ition 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.]’ [Citation.] This test is5 conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” ( People v. Olguin (2008) 45 Cal.4th 375, 379.) If defendant had objected to these terms of his probation, the trial court could have considered the factors in Olguin . The failure to object to unreasonable probation conditions at the sentencing hearing waives such claims on appeal. ( People v. Welch (1993) 5 Cal.4th 228, 234-235.) “A timely objec tion allows the court to modify or delete an allegedly unreasonable cond ition or to explain why it is necessary in the particular case.” ( Id. at p. 235.) Here, defendant was well aware of the cond itions of probation imposed by the trial court, including the challenged conditions, as he acknowledged in open court. In addition, defense counsel told the court that defendant agreed to the conditions after having been fully advi sed of the conditions. We find that defendant has waived his objection to conditions 15, 16 and 23, as app lied to him in particular, by failing to make such objection in the lower cour t at the time of sentencing. b. Constitutional Arguments Not Waiv ed But No Erro r Established Regarding defendant’s constitutional cha llenges to the conditions, we first consider whether the claims have been forfeited by his failure to raise them below. Our Supreme Court has determined that the forfe iture rule does not apply when a probation condition is challenged as unconstitutionally va gue or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. ( In re Sheena K. (2007) 40 Cal.4th 875, 887-889.) In this case, we will consider6 the substance of defendant’s constitutional cl aims to the extent they present pure questions of law without refere nce to the sentencing record. Defendant’s constitutional claim is three-fo ld. First, defendant contends condition number 15 prohibiting defendant fr om entering a place where al cohol is the chief item for sale “chills far too much prot ected activity, including associa tion and privacy rights” and is not narrowly tailored to reform and reha bilitate defendant. Defendant’s argument about whether the condition is narrowly tailo red to help reform and rehabilitate him involves an examination of the record for his background and characteristics, is not purely a question of law, and so is waived, as explained above. Neither does defendant support the conclusory statem ent in both his briefs—that the condition chills too much protected activity—with any specific citations to law that would assist this court in evaluating his argument. Therefore, we decline to address it. (See People v. Brown (2003) 31 Cal.4th 518, 538, fn. 6) Second, defendant argues the testing requirement of condition number 15 is overbroad because it “presents a significant risk of viola ting his right to privacy.” Again, defendant both ties this argument to the specific facts of his ca se and fails to back up his general constitutional argument with any specifi c case law holding th at alcohol testing, on its face, is an uncon stitutional requirement. Third, defendant asserts that conditions nu mber 16 and 23, requiring defendant to attend counseling or NA/AA meetings, “impermi ssibly give too much discretion to the probation officer to decide whether appella nt can consume or possess alcohol, or when7 and whether he must submit to testing.” Th e actual wording of th ese conditions is as follows. Condition number 16: “Participate in a counseling pr ogram as directed by the Probation Officer, submit mont hly proof of attendance and/ or successful completion to the Probation Officer as directed and abide by all rules and regulations of the counseling program and be responsible for payment of a ll program fee(s).” Condition number 23: “Attend NA/AA meetings as directed by th e Probation Officer and show proof of attendance to the Probation Department.” Neith er of these conditions gives the probation officer discretion to decide whether defe ndant can consume alcohol—the court itself prohibited alcohol consumption in conditi on number 15, which is discussed above. Defendant again does not suppor t his challenge to the alcoho l testing discretion given to the probation officer in condition number 15. The general quote from In re James C. (2008) 165 Cal.App.4th 1198, 1205 that a probationer has a right to privacy does not persuade this court, as a ma tter of law, that trial cour ts may not empower probation officers to test probationers for alcohol us e in their reasonably exercised discretion.
2. Counsel Fees Defendant argues the trial court erred when it ordered him to pay a $200 counsel
fee without first determin ing his ability to pay. The People argue that de fendant forfeited any objection to the counsel fee by failing to object in the lower court. Defendant argues that he can raise the issue on appeal for the first time because the determination of such fees presents an insufficient evidence8 claim that cannot be forfeited, citing in part to People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397-1401 ( Pacheco ). The California Supreme Court in People v. McCullough (2013) 56 Cal.4th 589 ( McCullough ) disapproved Pacheco as to booking fees imposed under Government Code section 29550.2, but im plicitly approved the Pacheco non-waiver treatment as to counsel fees under section 987.8. As discussed below, we conclude that defendant did not waive the attorney fee issue. We further conclude that the trial court erred in assessing the attorney fee without first determ ining defendant’s ability to pay. Generally, in the interests of fairness a nd judicial economy, only “those claims properly raised and preserved by the parties are reviewable on appeal.” ( People v. Scott (1994) 9 Cal.4th 331, 354.) However, in Pacheco , the Sixth Appellate District found that challenges to attorney fees, among others, are not forfeited by a failure to object below because they are all, in essen ce, a challenge to the sufficien cy of the evidence to support the trial court’s order. ( Pacheco, supra , 187 Cal.App.4th at p. 1397.) In addition, our Supreme Court included attorney fees under section 987.8 in a list of statutes in which the Legislature has imposed “procedural require ments or guidelines for the ability-to-pay determination,” which weakens the “rationale for forfeiture.” ( McCullough, supra, 56 Cal.4th at pp. 598-599.) Th us, we will address the merits of defendant’s arguments. Section 987.8, subdivision (b), provides that, “upon conclusi on of the criminal proceedings in the trial court, . . . the court may, after gi ving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of9 the legal assistance provided him.” ( People v. Flores (2003) 30 Cal.4th 1059, 1061 ( Flores ).) “Ability to pay” is defined in section 987.8, subdivision (g )(2), to mean “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her . . . .” This subdivision al so includes a number of factors that must be considered in making a determination as to whether a defendant has the “ability to pay.” For exam ple, the court must consider “[t]he defendant’s present financial position”; “[t]he defendant’s reas onably discernible futu re financial position” within the six months following the hearing date; and “[t]he likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing.” (§ 987.8, subds. (g )(2)(A), (B) & (C).) “[T]here is a presumption under the statute that a defendant senten ced to prison does not have th e ability to reimburse defense costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: ‘Unless the court finds unusual circumstances, a defe ndant sentenced to state prison shall be determined not to have a reas onably discernible future fina ncial ability to reimburse the costs of his or her defense.’” ( Flores, supra, 30 Cal.4th at p. 1068.) Here, the record shows the trial court di d not overtly or imp licitly consider the above factors, as it was required to do. Defendant was ordered to serv e six months in jail with credit for a little more than 30 days served. We might consider this su fficient evidence that defendant could not pay the counsel fee, except that the trial cour t commented that defendant was unlikely to10 spend more than 90 days in ja il, and “may end up with week ends.” In addition, although defendant had a history of self-employment at which he earned between $2,000 and $4,000 per month, he also re ported medical debts from a hospital stay of between $8,000 and $12,000. Based on this mixed record, we are unable to reliably determine whether defendant had the present ability to pay the counsel fee. However, in the interest of conserving the judicial resources that would be expended in a remand to hold a hearing on this issue, we stri ke the counsel fee.
D ISPOSITION The judgment is modified to strike the $200 counsel fee. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS GAUT J. *

We concur:
RAMIREZ P. J. RICHLI J.

* Retired Associate Justice of the Cour t of Appeal, Fourth Appellate District, Division Two, assigned by the Chief Justic e pursuant to article VI, section 6 of the California Constitution.