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Name: People v. Povio
Case #: H039309
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/17/2014
Subsequent History: Review granted 10/15/2014: S220685

Defendant’s failure to challenge the sufficiency of the evidence of his ability to pay probation supervision fee at the time it was imposed did not forfeit issue on appeal. Povio pled no contest to several drug offenses and admitted a prior strike. He was placed on three years probation on various terms, including a requirement that he stay 300 yards away from any playground. He was also required to pay a lab analysis fee, probation supervision fee, drug program fee, and AIDS education fee. On appeal, Povio challenged the playground condition as well as the imposition of the probation supervision fee, arguing as to the fee that no ability to pay determination was made, and that the evidence did not support an implied finding of ability to pay. Respondent claimed the issue was forfeited by Povio’s failure to raise it in the trial court (People v. McCullough (2013) 56 Cal.4th 589). Held: Reversed. The appellate court found that the claim was not forfeited. McCullough addressed a statute authorizing booking fees, which differs from the statute governing probation supervision fees; the latter provides procedural requirements for an ability to pay determination. (Pen. Code, § 1203.1b, subds. (a)-(b).) These procedural safeguards indicate that the Legislature does not consider the financial burden of the probation supervision fee to be de minimis and counsel against forfeiture. Here, because the record did not support an implied ability-to-pay finding, the fee could not stand and remand was required to determine Povio’s ability to pay the fee.

The laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), drug program fee (Health & Saf. Code, § 11372.7), and AIDS education fee (Health & Saf. Code, § 11377) are subject to mandatory penalty assessments. The Court of Appeal requested supplemental briefing on whether the above fees are subject to any mandatory penalty assessments. The parties and the appellate court agreed that they are. Both the drug program fee and the AIDS education fee require the trial court to determine whether defendant has the ability to pay the fees, and the appellate court presumed that the trial court made this finding as to the fees alone. However, it remanded to allow the trial court to determine whether Povio had the ability to pay the fees in light of the additional penalty assessments.

Probation condition requiring Povio to stay 300 yards away from a playground was unconstitutional absent a knowledge requirement. Povio challenged the probation term requiring him to stay 300 yards away from a playground as unconstitutionally overbroad and vague absent an express knowledge requirement. The appellate court agreed and modified that condition to prohibit knowingly coming within 300 yards of a playground.