Challenges to fines which are expressly subject to a defendant’s ability to pay are not forfeited for failure to object because they present sufficiency of the evidence challenges. Following appellant’s conviction for welfare fraud, the court placed him on probation and imposed fines and fees. On appeal, appellant challenged the imposition of three fines based on the court having failed to determine his ability to pay: $100 in attorney fees (Pen. Code, sec. 987.8), a $259.50 criminal justice administration or booking fee (Gov. Code, sec. 29550, subd. (c) or sec. 2955.2), and a monthly $64 probation-supervision fee (Pen. Code, sec. 1203.1b). Respondent argued the claims were forfeited for failure to object below. The Court of Appeal reiterated that because the fees at issue were expressly subject to ability to pay, they are sufficiency of the evidence challenges and can therefore be raised for the first time on appeal. And while the trial court can make either an express or implied finding regarding ability to pay, here there was no evidence in the record regarding assets, employment status, earning ability, or other means of income. Thus, any implied finding that appellant had the ability to pay the fees was not supported by substantial evidence. In addition, as to the booking fee, there was no evidence in the record as to the administrative costs of appellant’s booking. The court remanded the matter for the trial court to determine appellant’s ability to pay.
Payment of a court security fee (Pen. Code, sec. 1465.8) cannot be a condition of probation. Appellant also argued the trial court erred by conditioning appellant’s probation on the payment of the court security fee instead of making it a separate order. The court held that whether or not a fine or fee may be imposed as a condition of probation depends on whether it is collateral to the defendant’s crime or “whether it is oriented towards rehabilitation of the defendant.” The distinction is important because a defendant may be imprisoned for violating a probation condition, but not for violating an order to pay fines and fees. The non-punitive nature of the court security fee makes it collateral and not enforceable as a probation condition. The remedy is for payment to be made a separate order in the judgment.