People v. Soto

Filed 3/25/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042115
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS142200A)

v.

MARIO LOPEZ SOTO,

Defendant and Appellant.

Defendant Mario Lopez Soto pleaded nolo contendere to driving with a blood
alcohol content in excess of 0.08 percent (Veh. Code, § 23152, subd. (b)) and driving
with a suspended license (id., § 14601.2, subd. (a)). He was placed on five years‟ felony
probation. On appeal, he challenges the trial court‟s imposition of a probation condition
requiring that he obtain permission from his probation officer or an order from the court
prior to changing his residence from Monterey County or leaving the State of California.
He also raises arguments pertaining to various fines and fees that were imposed during
sentencing. For the reasons set forth below, we modify the order granting probation and
affirm the order as modified.
BACKGROUND
Facts1
On August 25, 2014, officers responded to a report of a possible violation of a
protective order. Defendant‟s wife, the subject of the protective order, was aboard a
Monterey-Salinas transit bus, and defendant was following the bus in a car.

1
Since defendant pleaded nolo contendere, we take our facts from the probation
report, which was based on a report prepared by the Marina Police Department.
Officers stopped defendant and noticed an odor of alcohol emanating from his car. They
also saw beer cans in plain view on the car floor. Officers searched the car and found
several empty beer cans, sealed beer cans, and an open, cold beer can in the car‟s center
console. Defendant acknowledged that his wife was aboard the bus that he was following
and indicated that he knew that there was a protective order in place. He told officers that
he followed the bus in his car instead of riding in the same bus as his wife, because he
thought that he would be in compliance with the protective order that way.
Procedural History
On October 28, 2014, defendant was charged by information with a count of
driving under the influence of alcohol with prior convictions (Veh. Code, § 23152,
subd. (a)), driving while having a blood alcohol content of 0.08 percent or higher with
prior convictions (id., subd. (b)), driving when his privilege was suspended for a prior
DUI conviction (id., § 14601.2, subd. (a)), driving with a suspended license (id.,
§ 14601.5, subd. (a)), driving when his privilege was suspended or revoked (id.,
§ 14601.1, subd. (a)), and violating a criminal protective order (Pen. Code, § 166,
subd. (c)(1)).2
On January 22, 2015, defendant pleaded nolo contendere to driving with a blood
alcohol content of 0.08 percent or higher with prior convictions (Veh. Code, § 23152,
subd. (b)) and driving when his privilege was suspended for a prior DUI conviction (id.,
§ 14601.2, subd. (a)). He also admitted his prior convictions. He stipulated to a factual
basis for his plea on his waiver form, indicating that “[o]n or about August 25, 2014,
[defendant] drove a motor vehicle while his BAC [blood alcohol content] was in excess
of .08.”
On March 19, 2015, the trial court suspended imposition of sentence and placed
defendant on five years‟ formal probation. Defendant was ordered to “[n]ot change place

2
Unspecified statutory references are to the Penal Code.

2
of residence from Monterey County or leave [the] State of California without permission
of the probation officer or further order of the court.” He objected to the imposition of
this condition, arguing that it was an unconstitutional infringement on his right to
interstate travel. Defendant also asserted that there was no “length [sic] with his state of
residence with respect to the criminality involved in this particular case.”
Defendant was also ordered to pay certain fines and fees as a condition of his
probation. The court‟s minute order reflects that he was ordered to “[p]ay a fine of
$390.00 plus penalty assessments, restitution fine and administrative fees for a total of
$2,104.00. [¶] (Penalty assessments total $1,209.00 and include: (1) $390.00 per
PC 1464(a)(1); (2) $273.00 per GC 76000(a)(1); (3) $78.00 per PC 1465.7; (4) $195.00
per GC 70372; (5) $78.00 per GC 76000.5; (6) $39.00 per GC 76104.6(a)(1); and
(7) $156.00 per GC 76104.7.) Additional fees total $125.00 and include: (1) $25.00 per
VC23645(a); and (2) $100.00 per VC23649(a). Administrative fees total $80.00 and
include [(1)] $25.00 per PC 1463.07; and (2) $55.00 per PC 1205(d). Restitution fine is
$300.00 per PC 1202.4(b).” Defendant was also ordered to “[p]ay an additional
restitution fine of $150.00 to the State Restitution Fund for count 3. (PC 1202.4(b).)”
Defendant appealed.
DISCUSSION
On appeal, defendant challenges the validity of the probation condition requiring
that he obtain permission from his probation officer “or further order of the court” before
changing his place of residence from Monterey County or leaving the State of California.
He also challenges the trial court‟s imposition of certain fines and fees and argues that
some of the fines and fees cannot be imposed as conditions of probation. We address his
claims regarding the change of residence probation condition first.
1. Probation Condition
On appeal, defendant challenges the imposition of the probation condition
requiring that he obtain approval before changing his residence from Monterey County or
3
leaving the State of California on the grounds that the condition is not reasonably related
to his crime or to future criminality and that the condition is unconstitutionally overbroad.
We address his claim that the condition was unreasonable first.
Under Lent, a condition is “invalid [if] 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.‟ ” (People v. Lent (1975) 15 Cal.3d. 481, 486.) “This test is 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 (Olguin).)
Here, we find that the challenged condition satisfies the first two prongs of the
Lent test. There is nothing in the record to indicate that the crimes that he was convicted
of, driving with a suspended license and driving with a blood alcohol content greater than
0.08 percent, are reasonably related to where he lives, or can be influenced by whether he
leaves the state. Further, the condition relates to conduct which is not in itself criminal.
There is nothing inherently illegal in either moving out of the county or taking an out of
state trip.
At issue is the last prong of the Lent test, whether the condition is reasonably
related to defendant‟s future criminality. Defendant opines that we should follow the
rationale set forth in People v. Bauer (1989) 211 Cal.App.3d 937. The Bauer court
considered a similarly worded probation condition requiring that the defendant‟s
residence be subject to his probation officer‟s approval. After reviewing the record, the
court concluded that there was nothing in the probation report or anywhere else that
suggested that defendant‟s home life somehow contributed to the crime of which he was
convicted or would be related to his future criminality. (Id. at p. 944.) Accordingly, the
Bauer court concluded that the condition failed the test articulated in Lent and struck the
probation condition.

4
 Bauer was decided before our Supreme Court‟s decision in Olguin, supra, 45
Cal.4th 375, which held that a “condition of probation that enables a probation officer to
supervise his or her charges effectively is . . . „reasonably related to future criminality.‟ ”
(Id. at pp. 380-381.) In Olguin, the defendant challenged a condition of probation
requiring him to notify his probation officer of the presence of any pets at his residence.
In part, the defendant challenged the condition on reasonableness grounds. The Supreme
Court rejected the defendant‟s arguments, noting that “[t]he condition requiring
notification of the presence of pets is reasonably related to future criminality because it
serves to inform and protect a probation officer charged with supervising a probationer‟s
compliance with specific conditions of probation.” (Id. at p. 381.)
Olguin noted that proper supervision included enabling the probation officer to
make unannounced visits and searches of the probationer‟s home. The safety of the
probation officer when conducting these visits and searches would therefore be pertinent
to future criminality. Olguin held that “the protection of the probation officer while
performing supervisory duties is reasonably related to the rehabilitation of a probationer
for the purpose of deterring future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.)
Olguin concluded that the defendant failed to show that the condition was unreasonable.
Olguin, however, is distinguishable. The condition at issue in Olguin required the
defendant to notify his probation officer if he had pets; it did not require the defendant to
obtain approval or permission. Several times, the Olguin court distinguished the
probation condition at issue there from a condition that would require the defendant to
obtain approval before having a pet. (Olguin, supra, 45 Cal.4th at pp. 383, 385.)
Additionally, “[n]ot every probation condition bearing a remote, attenuated,
tangential, or diaphanous connection to future criminal conduct can be considered
reasonable.” (People v. Brandão (2012) 210 Cal.App.4th 568, 576.) We do not believe
that Olguin compels a finding of reasonableness for every probation condition that may
potentially assist a probation officer in supervising a probationer. (See, e.g., In re J.B.
5
(2015) 242 Cal.App.4th 749, 758 [noting that “[t]he fact that a search condition would
facilitate general oversight of an individual‟s activities is insufficient to justify an
open-ended search condition permitting review of all information contained or accessible
on minor‟s smart phone or other electronic devices”].)
Here, the record does not support the trial court‟s conclusion that the probation
condition is reasonably related to defendant‟s crimes. During the sentencing hearing, the
court justified the probation condition as “more than reasonable” based on defendant‟s
history of alcohol abuse and noted that it wanted the probation officer to be able to ensure
that all of the probation terms, including treatment, could be satisfied regardless of where
defendant lived.
However, like the Bauer defendant, there is nothing in the record to indicate that
defendant‟s living situation contributed to his crime or would contribute to his future
criminality. The only mention of defendant‟s living situation is contained in the
probation report, which indicated that defendant had a stable residence and was living
with his brother. In sum, there is nothing to suggest that leaving Monterey County or the
State of California would have an effect on defendant‟s rehabilitation. Based on the
record before us, we do not find that the condition has any relation to his crime or to
future criminality.3 Therefore, under the facts of defendant‟s case, we find that the
condition is unreasonable and must be stricken.4
3
We note that there may be certain situations where obtaining the probation
officer or court‟s approval before changing residence or leaving the state may be required
for adequate supervision of the defendant and may be reasonably related to future
criminality. However, facts that would support such a conclusion are not present in
defendant‟s case.
4
Defendant also challenges the condition as unconstitutionally overbroad. As
defendant notes, the California Supreme Court is presently considering the
constitutionality of a similarly worded probation condition in People v. Schaeffer (2012)
208 Cal.App.4th 1 (rev. granted Oct. 31, 2012, S205260). The condition at issue there
required the defendant to “ „[r]eside at a residence by the Probation Officer and not move
without his/her prior approval.‟ ” (Id. at p. 4.) Because we strike the condition as
(continued)
6
 2. Penalty Assessment Under Government Code section 76000
According to the minute order, defendant was ordered to pay $273 under
Government Code section 76000, subdivision (a)(1). He argues that this fine should be
reduced to $195 as provided under Government Code section 76000, subdivision (e).
Defendant did not object to the imposition of the $273 fine under Government
Code section 76000, subdivision (a)(1). However, he claims that his argument is not
forfeited because imposition of the $273 fine constitutes an unauthorized sentence. We
agree that failure to raise an objection on this basis below does not bar his claim on
appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.)
Government Code section 76000, subdivision (a)(1) provides that “[e]xcept as
otherwise provided elsewhere in this section, in each county there shall be levied an
additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part
of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the
courts for all criminal offenses, including all offenses involving a violation of the Vehicle
Code or any local ordinance adopted pursuant to the Vehicle Code.” Here, defendant was
ordered to pay a base fine of $390 under Vehicle Code section 23550, subdivision (a).
Seventy percent of this $390 base fine is $273.
Defendant, however, argues that Government Code section 76000, subdivision (e),
not subdivision (a)(1), applies. Government Code section 76000, subdivision (e)
provides that “[t]he seven-dollar ($7) additional penalty authorized by subdivision (a)
shall be reduced in each county by the additional penalty amount assessed by the county
for the local courthouse construction fund established by Section 76100 as of January 1,
1998, when the money in that fund is transferred to the state under Section 70402.” The
statute further clarifies that “[t]he amount each county shall charge as an additional

unreasonable, we need not address defendant‟s claims regarding the condition‟s
constitutionality.

7
penalty under this section shall be as follows,” with Monterey County listed as “$5.00.”
Accordingly, defendant claims that his $390 base fine should have been subjected to a
50 percent penalty ($5 for every $10), for a total penalty of $195.
The language of Government Code section 76000, subdivision (e) appears to
mandate that a penalty under Government Code section 76000, subdivision (a)(1) be
reduced from $7 to $5 for every $10 imposed. However, Government Code
section 76000, subdivision (e) references Government Code section 76100, which
provides that the board of supervisors of a county “may establish” a courthouse
construction fund. (Gov. Code, § 76100, subd. (a), italics added.) In other words,
establishing a courthouse construction fund is not mandatory.
The People argue that Monterey County has not established a courthouse
construction fund and have filed a request for judicial notice of the Statewide Civil Fee
and Local Fee Schedule. (Evid. Code, §§ 452, subd. (c), 459.) The People claim that
judicial notice is appropriate, because the fee schedule shows that only three counties,
Riverside, San Bernardino, and San Francisco, have local courthouse construction funds.
We grant the People‟s request for judicial notice. However, the appendix does not reflect
that Riverside, San Bernardino, and San Francisco are the only counties with courthouse
construction funds.
The appendix states that “[u]nder the Uniform Civil Fee legislation, the standard
distributions to the State Court Facilities Construction Fund [(SCFCF)] are $20, $25 and
$35 depending on the level and type of filing. In Riverside, San Bernardino and San
Francisco the distribution to the SCFCF is reduced to offset, to the extent possible, the
local courthouse construction surcharge.” Riverside, San Bernardino, and San Francisco
are the three counties that specially permit local courthouse construction surcharges for
courthouse retrofitting and rehabilitation. (Gov. Code, §§ 70622, 70624, 70625.) Since
these counties deviate from the norm, the appendix lists these counties separately to state
the specific fees and distributions that will be made.
8
 Government Code section 70402, subdivision (a), which governs the transfer of
specified funds to the State Court Facilities Construction fund, acknowledges these
additional surcharges as well as the fact that other counties may set up courthouse
construction funds, noting that “[a]ny amount in a county‟s courthouse construction fund
established by Section 76100, a fund established by Section 70622 in the County of
Riverside, a fund established by Section 70624 in the County of San Bernardino, and a
fund established by Section 70625 in the City and County of San Francisco, shall be
transferred to the State Court Facilities Construction Fund” by a certain date. In sum, the
appendix does not demonstrate that these three counties are the only counties with a
courthouse construction fund.
The People do not furnish any other information to show that Monterey County
has a local courthouse construction fund. Accordingly, we are unable to determine if the
penalty imposed was unauthorized based on the current record. The amount at issue here
is de minimis. Calculating the penalty as 50 percent versus 70 percent would result in a
penalty of $195 compared with the original penalty of $273, a difference of only $78.
Remanding the matter to the trial court would therefore only serve to increase the costs to
the parties and the taxpayers. Therefore, in the interest of judicial economy, and in this
case only, we will assume that Monterey County has a local courthouse construction fund
and will reduce the penalty to $195. However, we note that in future proceedings the trial
court should make the appropriate, underlying factual findings when imposing a penalty
under Government Code section 76000.
3. Administrative Fee Under Section 1463.07
Next, defendant challenges the imposition of the $25 administrative fee imposed
under section 1463.07. The People concede that this fee was erroneously imposed,
because the fee applies only to those persons who are “arrested and released on his or her
recognizance upon conviction of any criminal offense related to the arrest other than an
infraction.” (§ 1463.07.) We find the People‟s concession to be appropriate, since the
9
record reflects that defendant was never released on his own recognizance. Accordingly,
the $25 fine under section 1463.07 was unauthorized and should be stricken.
4. Installment Account Fee Under Section 1205, Subdivision (e)
Defendant claims the trial court was not authorized to impose a $55 administrative
fee for installment accounts under section 1205, subdivision (e).5
Section 1205 “applies to any violation or any of the codes or statutes of this state
punishable by a fine or by a fine and imprisonment.” (§ 1205, subd. (c).) Defendant‟s
conviction of violating Vehicle Code section 23152 is punishable by a fine and
imprisonment. (Veh. Code, § 23550, subd. (a).) Here, defendant was ordered to pay the
$390 minimum fine described in Vehicle Code section 23550, subdivision (a).
Section 1205, subdivision (a) provides that a judgment that a defendant pay a
fine may also direct that the defendant be imprisoned until the fine is satisfied.
Subdivision (a) specifies that “[w]hen the defendant has been convicted of a
misdemeanor, a judgment that the defendant pay a fine may also direct that he or she pay
the fine within a limited time or in installments on specified dates, and that in default of
payment as stipulated he or she be imprisoned in the discretion of the court either until
the defaulted installment is satisfied or until the fine is satisfied in full; but unless the
direction is given in the judgment, the fine shall be payable.”6

5
The People note that section 1205 was amended on June 28, 2012, and
section 1205, subdivision (d) was relettered as subdivision (e). (Stats. 2012, ch. 49, § 1.)
Therefore, although the minute order and the presentence probation report indicate that
the fine was imposed under section 1205, subdivision (d), both parties agree that the fine
was actually imposed under section 1205, subdivision (e). To clarify, we will modify the
judgment to reflect that the fee was imposed under section 1205, subdivision (e), not
subdivision (d).
6
Installments are also mentioned in section 1205, subdivision (b), which provides:
“Except as otherwise provided in case of fines imposed, as a condition of probation, the
defendant shall pay the fine to the clerk of the court, or to the judge if there is no clerk,
unless the defendant is taken into custody for nonpayment of the fine, in which event
payments made while he or she is in custody shall be made to the officer who holds the
(continued)
10
 Section 1205, subdivision (e) describes the fees that may be imposed under this
section. It provides in pertinent part that a defendant shall “pay to the clerk of the court
or the collecting agency a fee for the processing of installment accounts. This fee shall
equal the administrative and clerical costs, as determined by the board of supervisors, or
by the court, depending on which entity administers the account. The defendant shall pay
to the clerk of the court or the collecting agency the fee established for the processing of
the accounts receivable that are not to be paid in installments. The fee shall equal the
administrative and clerical costs, as determined by the board of supervisors, or by the
court, depending on which entity administers the account, except that the fee shall not
exceed thirty dollars ($30).” (§ 1205, subd. (e).)
Accordingly, section 1205, subdivision (e) limits those fees collected for
processing of accounts receivable that are not to be paid in installments to $30. In
contrast, section 1205, subdivision (e) does not provide a specific limit on the fees
collected for installment accounts.
Defendant argues that the $30 limitation applies, because there is nothing in the
record to indicate that the trial court‟s judgment constituted a judgment on a
misdemeanor ordering him to make payments of his fine in installments. In other words,
defendant claims that section 1205, subdivision (e)‟s fee for installment accounts should

defendant in custody, and all amounts paid shall be paid over by the officer to the court
that rendered the judgment. The clerk shall report to the court every default in payment
of a fine or any part of that fine, or if there is no clerk, the court shall take notice of the
default. If time has been given for payment of a fine or it has been made payable in
installments, the court shall, upon any default in payment, immediately order the arrest of
the defendant and order him or her to show cause why he or she should not be imprisoned
until the fine or installment is satisfied in full. If the fine or installment is payable
forthwith and it is not paid, the court shall, without further proceedings, immediately
commit the defendant to the custody of the proper officer to be held in custody until the
fine or installment is satisfied in full.” (Italics added.)

11
be limited to the installment accounts imposed on misdemeanor defendants as described
in section 1205, subdivision (a).
The People opine that defendant forfeited the issue because he failed to object
below on the basis that he had the ability to pay the fines imposed on him without an
installment plan. (See People v. McCullough (2013) 56 Cal.4th 589, 597.) As articulated
by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 351-356,
“claims deemed waived on appeal [absent an objection] involve sentences which, though
otherwise permitted by law, were imposed in a procedurally or factually flawed manner.”
(Id. at p. 354.) For example, fees that are otherwise permitted but “were procedurally
flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of
evidence that the defendant had the ability to pay)” are not subject to the unauthorized
sentence exception. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)
The People argue that imposition of the $55 fee under section 1205 is lawful and
refute defendant‟s claim that installment accounts are only applicable to misdemeanor
cases. The People note that our Supreme Court in In re Antazo (1970) 3 Cal.3d 100
concluded that trial courts must give indigent defendants options, as an alternative to
imprisonment, to repay fines and penalty assessments. Further, appellate courts have
construed that an alternative that can be considered by the trial court is a requirement that
the defendant pay the fine or penalty assessment in installments. (See In re Fry (1971)
19 Cal.App.3d 177, 181 [“Antazo recognizes that, as an alternative to imprisonment,
„there are a variety of ways in which the state may fine the indigent offender‟ (e.g., by
collecting the fine in installments)”].) Therefore, the People insist that contrary to
defendant‟s claims, installment accounts can be imposed on indigent felony defendants.
And, the People maintain that we may presume that the trial court inferred defendant to
be indigent based on the probation report, which indicated he had minimal financial
capabilities.

12
 We reject the People‟s argument of forfeiture, which assumes without evidence
that defendant was ordered to pay his fines in installments. Defendant does not complain
that the installment account fee suffers from a procedural or factual flaw in its imposition,
which would have been forfeited absent a failure to object. Rather, defendant argues that
the installment account fee was unauthorized because a condition precedent to the
imposition of the fee—that he was required to pay the fee in installments—did not exist.
Even if we assume as true the People‟s argument that the installment account fee can
properly be imposed on felony defendants, the $55 fee imposed under section 1205,
subdivision (e) is unauthorized unless defendant was required to pay his fines in
installments since the statute expressly limits fees for non-installment accounts
receivables to $30. Failure to object on this basis below does not forfeit his argument on
appeal. (People v. Smith, supra, 24 Cal.4th at p. 852.)
In this case, there is nothing in the record to indicate that defendant was ordered to
pay his fines in installments. During the sentencing hearing, the court did not state that it
was ordering defendant to pay his fines in installments. In fact, the court ordered
defendant to “[p]ay your fines within three days, contacting the revenue division within
three days of your release from custody for payment arrangements.” This suggests that
defendant was not ordered to pay his fines in installments. Additionally, the probation
report did not indicate that it was recommending that the fine be paid in installments.
And, neither the probation condition imposing the fee nor the probation report described
the fee imposed under section 1205, subdivision (e) as an installment account fee.
Rather, the probation report recommended imposing the $55 fee as an “administrative”
fee.
Accordingly, since it does not appear that defendant was ordered to pay his fine in
installments, we find that the $55 fee imposed under section 1205, subdivision (e) was
unauthorized and reduce the fee to $30.

13
 5. Restitution Fine Under Section 1202.4, Subdivision (b)
Below, the trial court imposed a restitution fine of $300 under section 1202.4,
subdivision (b).7 The trial court also imposed an “additional restitution fine of $150.00”
for count 3, driving while his privilege was suspended (Veh. Code, § 14601.2, subd. (a)).
Defendant argues that all penal consequences stemming from his misdemeanor
conviction for driving while his privilege was suspended, including the $150 restitution
fine, must be stricken or stayed under section 654.
Defendant did not object to the imposition of the two restitution fines, but he does
not forfeit his challenge on appeal. When a court imposes multiple punishments in
violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized
sentence that can be challenged for the first time on appeal. (People v. Le (2006) 136
Cal.App.4th 925, 931 (Le).)
Section 654, subdivision (a) provides in pertinent part that “[a]n act or omission
that is punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
In In re Hayes (1969) 70 Cal.2d 604 (Hayes), our Supreme Court held that
section 654 did not bar a defendant from being separately punished for driving with
knowledge of a suspended license and driving while under the influence. (Hayes, supra,
at p. 611.) Hayes, however, has been overruled by People v. Jones (2012) 54 Cal.4th 350
(Jones). Jones held that “[s]ection 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.” (Id. at p. 358.)

7
The minute order does not specify that this $300 restitution fine was imposed for
count 2, driving a vehicle with a blood alcohol content of more than 0.08 percent (Veh.
Code, § 23152, subd. (b)). However, since it imposed an additional restitution fine for
count 3, it seems appropriate to presume that the $300 fine was imposed for count 2.

14
 Defendant‟s convictions for driving with a suspended license and driving with a
blood alcohol content of 0.08 percent or more both arose from the single physical act of
driving on August 25, 2014. Punishing defendant for both of these convictions would
therefore violate section 654. (Jones, supra, 54 Cal.4th at p. 358.)
The People argue that it is technical error to impose a separate restitution fine for
the two convictions and defendant should have been subject to only one fine. (People v.
Sencion (2012) 211 Cal.App.4th 480.) However, the People contend that defendant was
not prejudiced by the imposition of the two fines, because the total restitution fine
imposed was $450, well-within the statutory range of $300 to $10,000 for felony
convictions. (§ 1202.4, subd. (b)(1).)
Defendant, however, is not claiming that he was prejudiced by the trial court‟s
order of restitution. He is arguing that the restitution fine was unauthorized and an act in
excess of the court‟s jurisdiction because it violated section 654. “An unauthorized
sentence is just that. It is not subject to a harmless error analysis. Nor does it ripen into a
sentence authorized by law with the passage of time.” (In re Birdwell (1996) 50
Cal.App.4th 926, 930.)
In Le, supra, 136 Cal.App.4th 925, this court determined that a restitution fine
imposed under section 1202.4 was a “punishment” and a “criminal penalty” and therefore
subject to section 654. (Le, supra, at p. 933.) Le held that the trial court violated
section 654‟s ban on multiple punishments when it considered a felony conviction that
should have been stayed under section 654 when calculating the defendant‟s restitution
fine under section 1202.4. (Le, supra, at p. 934.)
Defendant opines that section 654‟s ban on multiple punishments is applicable
here, even though the trial court suspended imposition of sentence and placed him on
probation. He cites to People v. Tarris (2009) 180 Cal.App.4th 612 (Tarris), where the
trial court suspended the defendant‟s sentence and placed him on probation, ordering him
to pay restitution fines under Health and Safety Code section 25189.5 as a condition of
15
probation for two offenses when one of the offenses should have been stayed under
section 654. (Tarris, supra, at pp. 627-628.) Tarris noted that under section 1203.1,
subdivision (a)(1), when a trial court grants probation it may “ „fine the defendant in a
sum not to exceed the maximum fine provided by law in the case.‟ ” By law, section 654
bars multiple punishments for a single act and fines constitute punishment; therefore,
Tarris held that the trial court improperly imposed the restitution fine for both counts.
(Tarris, supra, at p. 628.)
Applying the reasoning set forth in Le and Tarris, we find that the trial court
violated section 654‟s ban on multiple punishments when it imposed a $150 restitution
fine under section 1202.4 for defendant‟s conviction for driving with a suspended license.
As articulated in Tarris, although the trial court suspended imposition of sentence and
placed defendant on probation, it could not impose, as a condition of probation, fines that
exceeded the maximum provided by law.8 Therefore, we strike the $150 restitution fine.

6. Probation Condition Requiring Payment of Various Fees, Surcharges, and
Assessments
Defendant argues that the trial court erroneously ordered certain payments
imposed under Government Code sections 70372, 76000, 76000.5, 76104.6, 76104.7 and
Penal Code sections 1205 and 1465.7 as conditions of probation.9 Instead, defendant
insists that these fines and fees should have been imposed as separate orders.10

8
Section 1202.4, subdivision (m) provides that “[i]n every case in which the
defendant is granted probation, the court shall make the payment of restitution fines and
orders imposed pursuant to this section a condition of probation. . . .”
9
Defendant also challenges the imposition of the fine imposed under
section 1463.07 as a condition of probation. However, we have already struck the fine
imposed under section 1463.07 as an unauthorized sentence. Therefore, we need not
consider whether the fine was properly imposed as a condition of probation.
10
Defendant‟s failure to contest the imposition of these fees as probation
conditions does not forfeit his argument on appeal, because his claim is that imposition of
these fees as a condition of his probation amounts to an unauthorized sentence. Again,
(continued)
16
 Under section 1203.1, trial courts have broad discretion to impose reasonable
conditions of probation that 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 the breach, and generally and specifically
for the reformation and rehabilitation of the probationer . . . .” (§ 1203.1, subd. (j).)
Some fines, including restitution fines, are statutorily required to be imposed as
conditions of probation. (§§ 1202.4, subd. (m), 1203.1, subd. (a)(1) & (2).) The fines
and fees challenged by defendant on appeal are not expressly mentioned in a statute as
appropriately imposed as a probation condition.
Courts have examined whether other fines and fees may properly be imposed as
conditions of probation. Routinely, courts have determined that probation supervision
costs imposed under section 1203.1b cannot be made a condition of probation for several
reasons. (People v. Hall (2002) 103 Cal.App.4th 889; People v. Hart (1998) 65
Cal.App.4th 902, 907.) First, under section 1203.1b, a court must first make an inquiry
into the defendant‟s ability to pay and issue a separate order for the payment of such
costs. Second, section 1203.1b, subdivision (d) provides that the order to pay probation
supervision fees cannot be enforced by contempt proceedings.
Payment of attorney fees and costs have also been deemed to be inappropriate
conditions of probation. (People v. Hart, supra, 65 Cal.App.4th at pp. 906-907.)
“Attorney fees are constitutionally proscribed as probation conditions because they would
„exact[] a penalty for the exercise of a constitutional right. Thus, the trial court may order
defendant to pay for costs of probation and attorney fees, but may not condition
defendant‟s grant of probation upon payment thereof.‟ ” (People v. Bradus (2007) 149
Cal.App.4th 636, 642.)

unauthorized sentences may be corrected on appeal at any time. (People v. Scott, supra,
9 Cal.4th at p. 354.)

17
 In People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), disapproved on
other grounds by People v. Trujillo (2015) 60 Cal.4th 850, 858, footnote 5 and People v.
McCullough, supra, 56 Cal.4th at page 599, this court determined that a court security fee
imposed under section 1465.8 was “collateral to [defendant‟s] crimes and punishment”
and should not be made a condition of probation. (Pacheco, supra, at p. 1402.) Pacheco
noted that “[o]ne reason for the distinction between fines that may be imposed as
probation conditions and those that may not is that probation „should be oriented towards
rehabilitation of the defendant and not toward the financing of the machinery of criminal
justice.‟ ” (Id. at p. 1403.) A defendant may be imprisoned for violating a probation
condition but not for violating an order to pay fees or costs. (Ibid.) Therefore, the
“nonpunitive purpose of the court security fee squarely places it among those fines and
fees that are collateral to the crime and the consequent punishment for its commission.”
(Ibid.) Accordingly, we held that the payment of collateral costs like court security fees
should be imposed as a separate order at judgment, not as a condition of probation.
(Ibid.)
In People v. Kim (2011) 193 Cal.App.4th 836 (Kim), this court extended the
reasoning set forth in Pacheco and held that a court facilities assessment imposed under
Government Code section 70373 should also be separately imposed.
The People concede that the fee imposed under section 1205, subdivision (e)
cannot be properly imposed as a condition of probation. Like the court security fee
(§ 1465.8) and court facilities assessment (Gov. Code, § 70373) contemplated in Pacheco
and Kim, the installment account fee imposed under section 1205 is collateral to
defendant‟s crimes and punishment. The fee imposed under section 1205 correlates to
the administrative and clerical costs associated with setting up accounts receivables and
installment accounts. (§ 1205, subd. (e).) We find the People‟s concession to be
appropriate and conclude that the fee imposed under section 1205 must be imposed as a
separate order at judgment, not as a condition of probation.
18
 The six other fees, assessments, and surcharges challenged by defendant require a
different analysis. Unlike the fee imposed under section 1205, the six other challenged
payment obligations are “assessments, surcharges, and penalties parasitic to an
underlying fine” that can increase the fine by a specified percentage.11 (People v. Voit
(2011) 200 Cal.App.4th 1353, 1374 (Voit).) These include the following fees and fines
that defendant challenges on appeal: (1) the 20 percent state surcharge (§ 1465.7), (2) the
30 percent state courthouse construction penalty (Gov. Code, § 70372), (3) the 70 percent
additional penalty (id., § 76000, subd. (a)(1)), (4) the 20 percent additional penalty if
authorized by the county board of supervisors for emergency medical services (id.,
§ 76000.5, subd. (a)(1)), (5) the 10 percent additional penalty for implementing the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act (id., § 76104.6, subd. (a)(1)),
and (6) the 10 percent additional state-only penalty to finance the Department of Justice
forensic laboratories (id., § 76104.7).
The six challenged parasitic fees, assessments, and surcharges have been described
as punitive by multiple courts. For example, this court described these parasitic fees,
assessments, and surcharges as “punitive fundraising measures” in Voit, supra, 200
Cal.App.4th at page 1374.
Further, some of the challenged fees and fines have been described as “punitive”
in other contexts. The court in People v. Batman (2008) 159 Cal.App.4th 587 (Batman)
held that the DNA penalty assessment imposed under Government Code section 76104.6
was punitive in nature. Batman noted that “[u]nlike the court security fee and the
criminal justice administration and booking fee, the DNA penalty assessment is explicitly
designated a penalty; it is calculated in direct proportion to other fines, penalties, and
forfeitures imposed; it is collected using the same provision for collecting the state

11
In defendant‟s case, the underlying fine was the $390 base fine for his
conviction imposed under Vehicle Code section 23550, subdivision (a).

19
penalty assessment; and it will be used primarily for future law enforcement purposes.”
(Batman, supra, at p. 591.)
Additionally, People v. High (2004) 119 Cal.App.4th 1192 (High) held that the
courthouse construction penalty (Gov. Code, § 70372) and the state surcharge (§ 1465.7)
were punitive. “The surcharge mandated by Penal Code section 1465.7, like its
companion penalty assessment set forth in section 1464, is a „garden variety‟ fine
calculated on the size and severity of the base fine imposed. It does not purport to
reimburse government for an expense incurred. Rather, the revenue collected is
deposited in the State General Fund.” (High, supra, at p. 1197.) High noted that the
penalty had a “punitive as well as a fundraising purpose.” (Id. at p. 1199.) In coming to
this conclusion, High opined that “[t]he penalty imposed tracks the seriousness of the
underlying offense and its base penalty. The prospect of its imposition therefore has a
similar deterrent effect to that of punitive statutes generally. It thereby „ “promote[s] the
traditional aims of punishment—retribution and deterrence.” ‟ ” (Id. at p. 1198.)
People v. Sharret (2011) 191 Cal.App.4th 859 (Sharret) applied a similar analysis
and concluded that the criminal laboratory analysis fee (Health & Saf. Code, § 11372.5)
was punitive and subject to section 654. Health and Safety Code section 11372.5
provides that individuals convicted of certain drug offenses “shall pay a criminal
laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The
court shall increase the total fine necessary to include this increment.” Sharret concluded
that the criminal laboratory analysis fee was punitive for a multitude of reasons: it
described itself as a fine, was imposed only upon conviction of a criminal offense
involving drugs and has no application in the civil context, was proportionate to the
defendant‟s culpability because it applied to each separate conviction, was mandatory and
had no ability to pay requirement, the funds collected went toward law enforcement
purposes, there was no language indicating that it was exempt from section 654, and
when the mandatory penalty and assessments were added the total fine was substantially
20
greater than the court security fee deemed to be nonpunitive in People v. Alford (2007) 42
Cal.4th 749. (Sharret, supra, at pp. 869-870.)
Voit, Batman, High, and Sharret do not concern the specific issue contemplated
here. Voit discussed the aforementioned fees, surcharges, and assessments in the context
of discerning which penalty was applicable to the defendant, since some of the penalties
had been enacted after defendant committed his crime. (Voit, supra, 200 Cal.App.4th at
p. 1374.) Batman and High discussed certain penalties in the context of whether their
imposition would violate the constitutional prohibition against ex post facto laws.
(Batman, supra, 159 Cal.App.4th at pp. 589-590; High, supra, 119 Cal.App.4th at
p. 1197.) Finding that these penalties were punitive in nature, Batman and High
concluded that the penalties could not be properly imposed on the defendants since they
had committed their crimes after the statutes implementing the penalties were enacted.
(Batman, supra, at p. 591; High, supra, at p. 1199.) Sharret contemplated whether the
criminal laboratory analysis fee, a fee not imposed in defendant‟s case, was punitive for
the purposes of section 654. (Sharret, supra, 191 Cal.App.4th at p. 870.)
However, we find the rationale employed by Batman, High, and Sharret to be
applicable to our analysis. The payment obligations that defendant challenges are
markedly different than the court security fee (§ 1465.8) and the court facilities fee (Gov.
Code, § 70373) deemed to be collateral to the defendants‟ convictions in Pacheco and
Kim. (Pacheco, supra, 187 Cal.App.4th at p. 1402; Kim, supra, 193 Cal.App.4th at
p. 843.)
First, Batman and High specifically concluded that the DNA penalty assessment
(Gov. Code, § 76104.6) and the courthouse construction penalty (id., § 70372), both of
which defendant challenges here, were punitive for the purposes of the prohibition
against ex post facto laws. It strains credulity that these assessments, deemed punitive for
the purposes of the prohibition against ex post facto laws, can be considered merely
collateral to the defendant‟s crimes and rehabilitation. As described in High, the
21
courthouse construction penalty “ „ “promote[s] the traditional aims of punishment—
retribution and deterrence.” ‟ ” (High, supra, 119 Cal.App.4th at p. 1198.) The same
rationale applies to the DNA penalty assessment deemed punitive in Batman. Since these
penalty assessments promote the traditional aims of punishment, it follows that they are
reasonably imposed as conditions of probation. (§ 1203.1, subd. (j) [trial courts have
discretion to impose reasonable conditions of probation].)
As for the four other fines challenged by the defendant—the penalty assessments
imposed under Government Code sections 76000, 76000.5, 76104.7, and Penal Code
section 1465.7—we find that a review of the statutes compels us to conclude that these
penalty assessments are also punitive under the same rationale employed by the courts in
Batman, High, and Sharret. First, all of the challenged penalty assessments are
mandatory and only applicable in the context of criminal cases.12 Second, the challenged
assessments are all correlative to the seriousness of the crime, because the imposed
penalties all constitute a proportionate percentage of the base fine. Therefore, the more
criminally culpable a defendant is, as reflected in their base fine, the greater the penalty
assessment imposed under the aforementioned statutes. Third, none of these challenged
penalty assessments have an ability to pay requirement.
Based on the foregoing, we conclude that unlike the court security fee and the
court facilities assessment contemplated in cases like Pacheco and Kim, the penalty
assessments challenged by defendant are punitive and serve the purpose of promoting
retribution and deterrence and are related to defendant‟s crimes. The punitive nature of
the challenged penalty assessments renders their payment a reasonable condition of

12
We note that the additional penalty on fines for support of emergency medical
services (Gov. Code, § 76000.5) is not applicable unless the county board of supervisors
elects to levy the additional penalty. Presumably, the fine is mandatory in Monterey
County since the penalty was imposed in defendant‟s case.

22
probation. We therefore find no error with the trial court‟s imposition of the six penalty
assessments described above as conditions of probation.
DISPOSITION
The order granting probation is modified as follows: (1) the probation condition
requiring defendant to “[n]ot change place of residence from Monterey County or leave
[the] State of California without permission of the probation officer or further order of the
court” (condition No. 3) is stricken, (2) the penalty assessment imposed under
Government Code section 76000 is reduced to $195, (3) the $25 administrative fee
imposed under Penal Code section 1463.07 is stricken, (4) the $55 fee imposed under
Penal Code section 1205, subdivision (d) is reduced to $30 and is clarified to be imposed
under Penal Code section 1205, subdivision (e), (5) payment of the $30 fee imposed
under Penal Code section 1205, subdivision (e) is clarified to be imposed as a separate
court order, and (6) the $150 restitution fine imposed under Penal Code section 1202.4
for count 3 is stricken. As modified, the order granting probation is affirmed.

23
 Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Soto
H042115
Trial Court: Monterey County Superior Court
Superior Court No. SS142200A

Trial Judge: Hon. Larry E. Hayes

Counsel for Plaintiff/Respondent: Kamala D. Harris
The People Attorney General

Gerald A. Engler
Chief Assistant Attorney General

Jeffrey M. Laurence
Acting Senior Assistant Attorney General

Catherine A. Rivlin
Supervising Deputy Attorney General

Elizabeth W. Hereford
Deputy Attorney General

Counsel for Defendant/Appellant: Under appointment by the Court of Appeal
Michelle May Peterson

People v. Soto
H042115