1 Filed 7/3/14 P. v. Alvarado CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ANTONIO MORALES ALVARADO, Defendant and Appellant. E058233 (Super.Ct.No . NF1200489) OPINION

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed. Susan L. Ferguson, 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, Senior Assistant Attorney General, Barry Carlton, and Heather M. Clark, Deputy Atto rneys General, for Plaintiff and Respondent.2 I INTRODUCTION A jury convicted defendant and appella nt Antonio Morales Alvarado of assault
with a knife under Penal Code 1 section 245, subdivision (a)(1) (count 1); domestic criminal threats under section 422 (count 2); and spousal battery under section 243, subdivision (e)(1) (count 4). The trial court granted defendant formal probation for 36 mont hs, and ordered him to spend 365 days in jail. However, because the trial court found th at defendant had 638 days’ credit, he was immediately released from custody. On appeal, defendant contends that the trial court erred in imposing (1) collateral fines and fees as terms and conditions of his probation; a nd (2) probation costs because there was insufficient ev idence that he had an ability to pa y those costs. For the reasons set forth below, we shall affirm the judgment.
II STATEMENT OF FACTS On February 21, 2012, de fendant celebrated his birt hday with his wife, Loretta Alvarado (the victim), and their grandson, Adri an. Adrian was 10 years old at the time. Defendant and the victim both drank an entire bottle of tequila after he came home from

1 All statutory references are to the Penal Code unless otherwise indicated.3 work, followed by four bottles of champagne. They bega n drinking the tequila at approximately 8:00 p.m., and Adrian we nt to sleep at 9 p.m. or 10 p.m. At some point, Adrian woke up and as ked the victim to turn the music down. Defendant and the victim bega n arguing over the volume of the music. The victim then went to bed. Some time thereafter, defendant came into the bedroom and tried to rouse the victim by pulling on her arm. He pulled her into the ha llway, but the victim was too intoxicated to remember what happened after that. They be gan arguing again; defendant had a knife in his hand. He called the victim names and stated that she had ruined his life. The victim got scared and told Adrian to go to the neighbors’ house and call the police. Adrian ran next door and called 911. He told the 911 operator that his grandpa had a knife and his grandma had a nail file for protection. Adrian said that his grandparents were hitting and yelling, and that his grandp a was hurting his grandma by pulling her hair and throwing her down. Adrian also st ated that his grandpa was threatening his grandma with a knife. The vi ctim arrived at the ne ighbor’s house when Adrian was on the telephone; sh e told the 911 operator that defendant tried to kill her with a knife. Officer Graham Greer responded to the 911 call and made contact with both the victim and Adrian. Adrian told the officer that he saw his grandpa pull the victim’s hair and push her onto the bed. Adrian also said that his grandpa left the bedroom and went back in with a knife, got on top of his grandma, called he r names and threatened to kill her. When his grandpa punched the bed with the knife four or five times, his grandma4 told Adrian to call fo r help. The victim, who was highly intoxicated, said that defendant pulled her into the bedroom, pushed her on the bed, left briefly, and returned with a knife. Defendant called her names and stated that she had ruined his life. Defendant threatened to kill her. At trial, Adrian testified that his gran dpa had pulled his grandma’s hair while she was in bed and pulled her onto the floor. Adrian went to the restroom and could hear his grandma yelling. When he came out of the restroom, his grandma told him to call the police because his grandpa had a knife. Adrian testified that his grandparents were drunk and that he never actually saw the knife. He said he told the 911 operator about the knife because that is what his gra ndma told him. He did not re member his grandpa threatening his grandma and said it could have been so mething that his grandma had told him.
III ANALYSIS
A. The Minute Order Does Not Require Clarification Defendant contends that the trial court improperly imposed certain fees as conditions of probation because these fees are collateral to the crime and punishment. As such, defendant requests that the fees be deleted as pr obation conditions, and ordered separately. The People contend that there is no need for clarification of the minute order because the court separately ordered the f ees and did not make them conditions of probation. Payment of probation costs cannot be made a condition of probation. ( People v. Hall (2002) 103 Cal.App.4t h 889, 892; see also People v. Pacheco (2010) 1875 Cal.App.4th 1392, 1399 [fi nding error to direct defendant to pay attorney fees, probation supervision costs and court security fee as c onditions of probation], disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599.) An order requiring the defendant to pay probation costs may only be enforced through a civil action. ( Brown v. Superior Court (2002) 101 Cal.A pp.4th 313, 322.) In this case, defendant contends that the trial court improperly imposed the following fees as conditions of probation: (1) presentence probation fee (not to exceed $785.00); (2) probation supervision fee (fro m $591.12 to $3,744.00); (3) booking fee ($450.34); and (4) security fee ($120.00). The probation report, however, does not show that the challenged fees were to be include d as conditions of pr obation. The probation report recommended that defendant be grante d formal probation for three years, and delineated 27 terms and conditions for granti ng probation. These terms and conditions are specifically numbered in the probation re port. Following these delineated terms and conditions, the report separately sets forth the recommendation that defendant be required to pay the costs of the presentence probation report, probation superv ision, booking fees, and a security fee. At the sentencing hearing, the court stat ed that it had “read and considered the probation report[,]” and its tentative senten ce was “to follow the probation officer’s recommendation that [defendant] be granted pr obation.” After both the prosecutor and defense counsel submitted on the probation re port, the court addressed each of the 27 separately delineated terms and conditions of probation set forth in the probation report. During the hearing, the court struck conditions 6, 25, 26, and 27, whic h were then struck6 on the probation report also. After the cour t was done discussing the 27 probation terms and conditions, the court ordered the knife destroyed, and that defendant pay the challenged fees. The Report and Sentencing Minute Order also showed that the challenged fees were separately ordered and not ordered as conditions of probation. The order stated: “Formal Probation is Granted for a period of 36 months under the following terms and conditions: . . .” After the last term and condition of probati on is listed, the order stated as follows: “FURTHER ORDER: Weapon(s) ordered di sposed (PC 12028(2)(c)). Pay cost of pre-sentence in amount to be determined by Probation, not to exceed $785.00 (PC 1203.1b). Pay the costs of probation supervis ion in an amount to be determined by the Probation Department. Base d on the level of supervision, the costs will range from $591.12 to $3744.00 (P C 1203.1b). . . . As to count( s) 1 2 4, pay a fine of $420.00 including penalty assessment. Fine imposed includes security fee for 003 convicted counts in an amount of $120.00 . . . . Pay booking fees of $450.34 (GC 29550).” Nonetheless, in his reply brief, defenda nt argues that, because the “FURTHER ORDER” included some fines and fees that can be ordered as terms of probation, the order needs clarification. We disagree. As di scussed above, even if this part of the order contained fines and fees that could have been ordered as terms of probation, this separate part of the order clearly indicated that it was separate from th e specified terms and conditions of probation.7 Based on the probation report, oral pr onouncement during the sentencing hearing, and the minute order, we find that the challe nged fees were not impos ed as conditions of probation. Therefore, we need not modify the minute order to “delete” the challenged fees as probation conditions or issue a separa te order indicating that the challenged fees do not constitute terms and conditi ons of defendant ’s probation.
B. The Trial Court Properly Ordered De fendant to Pay Probation Costs Defendant contends that th e trial court erred under se ction 1203.1b by imposing fees for preparation of the presentence pr obation report and pr obation supervision without advising him of his right to a hear ing. He also contends that there was insufficient eviden ce for the court to determine he ha d the ability to pay the fees. The People contend that defendant has forfeited this issue. We agree. Section 1203.1b, subdivision (a), charges th e probation officer with the duty of determining the ability of the de fendant to pay all or a porti on of the reasonable cost of any probation supervision or a conditional sentence. It furthe r provides that the probation officer “shall inform the defendant that th e defendant is entitled to a hearing, that includes the right to counsel, in which th e 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 he r ability to pay and the payment amount by a knowing and intelligent waiver.” (See also People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070.) In order to preserve a challenge to a tria l court’s order to pay probation fees under section 1203.1b, a defendant must first ra ise an objection in the trial court. ( People v.8 Snow (2013) 219 Cal.App.4th 11 48 [finding defendant forfeite d claim that insufficient evidence supported a finding of ability to pay probation re port and supervision fees]; People v. Valtakis , supra , 105 Cal.App.4th at pp. 1068, 1071-1076 [a defendant cannot challenge on appeal the issue of noncomplianc e with statutory procedures while imposing a section 1203.1b fee when he failed to asse rt any objections in the trial court]; People v. McCullough , supra , 56 Cal.4th at pp. 597-599 [the defendant forfeited his claim that there was insufficient evidence to support his ability to pay a booking fee because he failed to object below]; People v. Crittle (2007) 154 Cal.App.4t h 368, 371 [challenge to crime prevention fee forfeited]; but see People v. Pacheco , supra , 187 Cal.App.4th at p. 1397 [no forfeiture of issue regarding whether section 1203.1b fee was properly imposed], disapproved by People v. McCullough , supra , 56 Cal.App.4th at p. 599.) 2
In People v. Valtakis , supra , 105 Cal.App.4th at pp. 1068-1076, the defendant entered a negotiated plea, the court placed defendant on probatio n, and a probation supervision fee was imposed under section 1203.1b. The proba tion officer did not evaluate the defendant’s ability to pay or advise him of his right to a hearing on the issue, as required under section 1203.1b. On appeal , the defendant, like defendant in this case, challenged the probation fee. The appellate court held that the defendant’s failure to

2 The California Supreme Court is curren tly considering the issue of whether a defendant, who fails to object to an orde r for payment of probation supervision fees, forfeits a claim that the trial court erred in fail ing to make a finding of an ability to pay. ( People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013, S213571, and People v. Trujillo (2013) Cal.App.Unpub. LE XIS 5913, review granted Nov. 26, 2013, S213687 [nonpub. Opn.].)9 object to noncompliance with the probation fee procedures of section 1203.1b waived the issue on appeal. ( Ibid. )
In People v. McCullough , supra , 56 Cal.4th 589, the Supreme Court granted review to determine whether a defendant, wh o does not object that the evidence is insufficient to support a findi ng of his ability to pay a booking fee under Government Code section 29550.2, forfeits his right to ch allenge the trial court’ s imposition of the fee on appeal. ( Id. at p. 591.) The Supreme Court dis tinguished “between an alleged factual error that had necessarily not been addresse d below or developed in record because the defendant failed to object, and a claimed lega l error, which ‘can be resolved without reference to the particular sentencing record developed in the trial court.’ [Citation.]” ( Id. at p. 594.) The court stated: “[W]e may re view an asserted lega l error in sentencing for the first time on appeal wh ere we would not review an asserted factual error. ( Ibid. ) “In the case of an asserted legal error, ‘[a]ppe llate courts are willing to intervene in the first instance because such error is “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.]” ( Ibid. ) Ultimately, the Supreme Court concluded that a defendant’s ability to pay a bookin g fee does not present a legal issue; therefore, a defendant is not en titled to transform a factual issue into a legal issue by asserting the record’s deficiency as legal error. The court held that the defendant’s failure to object to the tria l court’s imposition of a jail booking fee under Government Code section 29550.2 forfeited a substantial evidence claim regarding evidence of a defendant’s ability to pay because “a court’s imposition of a booking fee is confined to factual determinations.” ( Id. at p. 597.)10 Here, the probation report was dated by the probation officer on December 20, 2012. At the sentencing hearing held on Januar y 4, 2013, defense counsel indicated that he was in receipt of the report and submitte d on the report. In the report, the probation officer recommended that defendant pay th e challenged probation fees. Defendant, therefore, had notice of the probation report’s recommendation that he pay the fees. However, at no time during the sentencing hear ing did defendant or his counsel raise any objection to any issue with respect to any of the challenged fees. When the trial court specifically ordered defendant to pay the probation supervis ion fees and report fees, neither defendant nor his counsel objected. Having failed to do so, defendant has forfeited his claim for purposes of appeal. ( People v. McCullough , supra , 56 Cal.4th at pp. 597-99; People v. Valtakis , supra , 105 Cal.App.4th at p. 1068.) Defendant’s reliance on People v. Pacheco , supra , 187 Cal.App.4th 1392, is misplaced. In Pacheco , the trial court ordered a crimin al justice administration fee, a monthly probation supervision f ee, and attorney fees withou t making a determination of defendant’s ability to pay; defe nse counsel did not object. ( People v. Pacheco , supra , 187 Cal.App.4th at pp. 1396, 1397.) On appe al, the defendant argued that the evidence of his ability to pay was insufficient and the Pe ople contended that the issue was waived. ( Id. at p. 1397.) The appellate court found no evidence that defendant was advised of his right to a hearing for the probation supervisi on fee, and no evidence that the defendant waived that right. ( Id. at p. 1401.) In addition, the ap pellate court found no evidence that either the probation officer or the trial court made a determination that the defendant had11 an ability to pay the challenged fees. ( Id. at pp. 1401-1404.) Pacheco , however, was overruled by People v. McCullough , supra , 56 Cal.4th 589, as discussed above. Defendant, however, argues that People v. McCullough , supra , 56 Cal.4th 589, does not apply by distinguishing the challenged fees in this case under section 1203.1b from the booking fees involved in McCullough . In McCullough , the Supreme Court illustrated the difference between booking fe e statutes with statutes that provide procedural guidelines, such as section 1203.1b. ( Id. at pp. 498-499.) The court noted that section 1203.1b sets forth “procedural requirements or guidelines for the ability-topay determination,” and “[c]ertain fee payment statutes require defendants to be apprised of their right to a hearing on ability to pay an d afford them other procedural safeguards.” ( Id. at p. 598.) Based on this, defendant claims that “ McCullough suggests that [defendant’s] lack of objection does not forfeit his claim.” We disagree with defendant’s analysis. In McCullough , the Supreme Court, when discu ssing statutes with procedural safeguards or guidelines, was simply providing another reas on why an objection to the ability to pay a booking fee was required. The court did not imply that only a booking fee required an objection. Therefore, based on People v. Snow , supra , 219 Cal.App.4th 1148; People v. Valtakis , supra , 105 Cal.App.4th 1066; and People v. McCullough , supra , 56 Cal.4th 589, we hold that defendant has forfeited his claim. Notwithstanding defendant’s forfeiture, his contention fails on the merits because the trial court made an implied findi ng of defendant’s ability to pay.12 A trial court’s finding of an ability to pay may be implied, and will be upheld on appeal if it is supported by substantial evidence. ( People v. Phillips (1994) 25 Cal.App.4th 62, 70-71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) “Ability to pay” means the overall capacity of the defendant to reimburse the costs or a portion of the costs of conducting th e presentence report, and supervising the defendant’s probation based upon various factor s, including: (1) the defendant’s present financial situation; (2) the defendant’s reas onably discernable future financial position, i.e., a period of no more than one year fro m the time of hearing; (3) the defendant’s likelihood of being able to obtain employment w ithin a year from the date of the hearing; and (4) any other factors that would impact the defendant’s ability to pay. (§ 1203.1b, subd. (e).) In this case, there was suffi cient evidence that defendant had the ability to pay the probation fees. Defendant was interviewed by the probation officer w ith his attorney and an interpreter present. Defenda nt provided his social history. He was a 44-year-old man in good health, and had no ch ildren of his own. Defendan t had been employed full time as a sous chef at the same restaurant for approximately 27 years. He was also immediately released from custody at the se ntencing hearing. De fendant had the ability to earn money to pay his probation supervisi on and report fees. The court specifically noted during the hearing that defend ant “had steady and lengthy employment.” The trial court, therefore, did not err in implicitly finding that there was sufficient evidence to show that defend ant had the ability to pay th e probation supervision and report fees.13 IV DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J.
We concur:

RAMIREZ P. J.

CODRINGTON J.