P. v. Scherer

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Filed 10/18/17 P. v. Scherer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM CHRISTOPHER SCHERER,
Defendant and Appellant.
E065302
(Super.Ct.No. RIF1406545)
OPINION
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed as modified with directions.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J.
Beale, Deputy Attorneys General, for Plaintiff and Respondent.

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I
INTRODUCTION
Defendant and appellant William Christopher Scherer was found with
methamphetamine in his possession for the purposes of sale and transportation. Pursuant
to a plea to the court, defendant pleaded guilty to selling and transporting
methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of
methamphetamine for sale (Health & Saf. Code, § 11378), and misdemeanor driving with
a suspended license (Veh. Code, § 14601.1, subd. (a)). In return, the trial court
suspended imposition of sentence and placed defendant on probation for a period of three
years on various terms and conditions, including 180 days in county jail to be served on
work release and payment of various fines and fees. On appeal, defendant argues five of
the ordered fees were improperly imposed as conditions of probation. He further asserts
the residence approval condition is unconstitutionally overbroad. For the reasons
explained below, we will modify the judgment with directions.
II
FACTUAL AND PROCEDURAL BACKGROUND1
On April 11, 2014, at around 2:40 a.m., Riverside Police Department Officer
Garcia and his partner were on routine patrol when they ran the registration of a vehicle
driven by defendant. As defendant parked his vehicle in the driveway of his residence,
the officers initiated a traffic stop. Upon contact with defendant, the officers discovered
1 The factual background is taken from the preliminary hearing.

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defendant’s license was suspended. Officer Garcia obtained defendant’s consent to
search his person and found a small box in defendant’s front pocket. The box contained
four individual baggies of what looked like methamphetamine. The total weight of the
baggies was approximately 3.5 grams. Officer Garcia also recovered $531 in cash from
defendant’s possession.
On September 21, 2015, an information was filed charging defendant with selling
and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1),
possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and
misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a);
count 3).
On January 25, 2016, pursuant to a plea to the court, defendant pleaded guilty to
all of the counts as charged. Immediately thereafter, the trial court suspended imposition
of sentence and placed defendant on probation for a period of three years on various
terms and conditions, including serving 180 days in county jail on work release and
payment of various fines and fees.
On January 28, 2016, defendant filed a timely notice of appeal.
III
DISCUSSION
A. Payment of Fines and Fees as Conditions of Probation
Defendant argues the following fees and fines were improperly imposed as
conditions of probation: (1) the cost of probation supervision (Pen. Code, § 1203.1b);

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(2) a court operations security assessment fee (Pen. Code, § 1465.8); (3) a court
conviction facilities assessment fee (Gov. Code, § 70373); (4) a drug laboratory fee
(Health & Saf. Code, § 11372.5); and (5) a drug education fee (Health & Saf. Code,
§ 11372.7). He asserts that these five fees and fines should have instead been imposed as
separate orders that could be enforced civilly.
The People respond that all five challenged fees and fines were included in a
separate order and not imposed as conditions of probation, as shown on page 2 of the
“Sentencing Memorandum” that was made part of the court’s order. The People further
argue that the drug education fee (Health & Saf. Code, § 11372.7) and the drug
laboratory fee (Health & Saf. Code, § 11372.5) should have been imposed as conditions
of probation because they are closely connected to defendant’s crime, are mandatory, and
make amends to society for the costs of drug sales.
On January 25, 2016, defendant, the defense attorney, and the trial court signed a
document entitled “Sentencing Memorandum” that included both the terms and
conditions of probation and additional orders of the court. The first page of the
“Sentencing Memorandum” stated, “The Following Terms and Conditions Are Ordered
by the Court,” and the second page stated “Additional Orders of the Court.” While
portions of the sentencing memorandum are entitled “terms” and “conditions,” the fines
and fees challenged by defendant here are all included within the subheading “Additional
Orders of the Court” on the second page. Without objection, the trial court incorporated
the “Sentencing Memorandum” into its order.

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The court’s January 25, 2016 minute order placing defendant on probation stated
that defendant is to “[p]ay the costs of probation supervision in an amount to be
determined by the Probation Department. [¶] Based on the level of supervision, the costs
will range from $591.12 to $3[,]744.00. (PC 1203.1b).” This minute order also stated
that defendant is to pay “Court Operations Assessment fee of $40 imposed for each
convicted charge. (1465.8 PC)” and “[p]ay conviction assessment fee for the following
convicted count(s) 1 2 3. (GC 70373). [$30. each misd and felony].” This minute order
further noted that defendant is to “pay a criminal laboratory analysis fee of $205.00,
including assessment (HS 11372.5)” and “a drug program fee of $205.00, including fine
and assessment (HS 11372.7).” These fees were indicated in the court’s January 25,
2016 minute order after defendant’s terms and conditions were noted.
We agree with the People that the court did not impose these fees as conditions of
defendant’s probation, but rather imposed them as “additional orders of the court.” The
record indicates that the order to pay the five challenged fines and fees was a separate
order, and not a condition of probation. Nonetheless, to avoid any ambiguities, we will
direct the trial court to clarify payment of these fees.
Although a trial court may order a defendant to pay for reasonable costs of
probation, such costs are collateral and their payment cannot be made a condition of
probation. (Pen. Code, § 1203.1b, subd. (b); People v. Acosta (2014) 226 Cal.App.4th
108, 126; People v. Hall (2002) 103 Cal.App.4th 889, 892 (Hall); Brown v. Superior
Court (2002) 101 Cal.App.4th 313, 321 (Brown).) “These costs are collectible as civil

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judgments; neither contempt nor revocation of probation may be utilized as a remedy for
failure to pay. (Pen. Code, § 1203.1b, subd. (d).)” (People v. Washington (2002) 100
Cal.App.4th 590, 592; see Brown, at p. 322 [An order that a probationer pay the collateral
costs of probation is enforceable only as a separate money judgment in a civil action];
People v. Hart (1998) 65 Cal.App.4th 902, 907 (Hart) [same].) Thus, it is well
established that the trial court may not require, as a condition of probation, payment of
the cost of preparation of the probation report or the costs incurred in probation
supervision. (Hart, at p. 907.) Any order for payment of probation costs should be
imposed as a separate order. (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1068.)
Likewise, “[c]ertain fines such as those relating to restitution, for example, may by
statute be imposed as conditions of probation, but the court security fee is not one of
them. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402-1403
(Pacheco), disapproved on other grounds by People v. Trujillo (2015) 60 Cal.4th 850,
858, fn. 5, and People v. McCullough (2013) 56 Cal.4th 589, 599.) “The imposition of
the court security fee as a condition of probation [is] unauthorized because like probation
costs, this fee is collateral to [the defendant’s] crimes and punishment and as such, its
payment may not be made a condition of probation. [Citations.]” (Pacheco, at p. 1402.)
Similarly, the court conviction facilities assessment fee under Government Code
section 70373 may not be made a condition of probation. (People v. Kim (2011) 193
Cal.App.4th 836, 843 (Kim); People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-
1414.)

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Here, it does not appear the trial court intended to impose the five challenged fees
as conditions of defendant’s probation. The sentencing memorandum indicates the
parties’ intent that these fees would be imposed as additional orders of the court, rather
than conditions of defendant’s probation. Likewise, in the minute order, these fees come
after what appears to be the conditions of defendant’s probation.
However, to the extent ambiguities exist in the trial court’s minute order or
sentencing memorandum in this case, we will direct the clerk to modify the minute order
to clarify the payment of these fines and fees. (See People v. Anderson (2010) 50 Cal.4th
19, 26 [an unauthorized sentence can be modified at any time, and can be modified by the
appellate court without the need for remand]; People v. Soto (2016) 245 Cal.App.4th
1219, 1236, fn. 10 (Soto) [although the defendant failed to object in the trial court,
appellate court may correct unauthorized imposition of administrative costs that were
imposed as conditions of probation instead of in a separate order].) Contrary to
defendant’s assertion, the appropriate remedy is not to strike the order to pay the
challenged fees. Instead, the imposition of these fees as a condition of probation may
simply be modified to be treated as “an order entered at judgment” and to be “enforced as
permitted in the relevant statutes.” (Hart, supra, 65 Cal.App.4th at p. 907; see Hall,
supra, 103 Cal.App.4th at p. 892 [“We simply deem the requirement [to pay probation
costs] an order, not a condition [of probation], and proceed to consider other aspects of
the court’s order”].) We therefore direct the trial court to modify the probation order to
eliminate any requirement that defendant pay the costs of probation supervision, the court

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operations security assessment fee, and the court conviction assessment fee as conditions
of probation.
The People argue that the drug lab “fine” under Health and Safety Code
section 11372.5 and the drug education “fine” under Health and Safety Code
section 11372.7 should have been imposed as conditions of probation because they were
closely related to the crimes defendant committed, made amends to society for the harm
defendant caused, and furthered his rehabilitation. The People reason these two drug
costs should be incorporated into defendant’s probationary conditions because “[b]oth
fines were mandatory here, imposed as a penalty on the crimes [defendant] committed,
and were applicable only in this criminal context” where a defendant violates controlled
substance laws unlike the “generic assessments applicable to all defendants, like the court
operations and court facilities fees.”
Relying on People v. Watts (2016) 2 Cal.App.5th 223 (Watts), defendant counters
that the “drug lab fee” and “drug program fee” cannot be conditions of probation because
these fees are not punitive and not subject to a penalty assessment.
We have found no published cases on point addressing the issue of whether
payment of a drug lab fee under Health and Safety Code section 11372.5 or payment of a
drug program fee under Health and Safety Code section 11372.7 can or cannot be a
condition of probation. However, as pointed out by defendant, case law has developed
which directly addresses whether a monetary “fine” or “fee” can be made a condition of
probation. (See, e.g., Pacheco, supra, 187 Ca1.App.4th at pp. 1402-1403; Kim, supra,

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193 Ca1.App.4th at pp. 842-843; Soto, supra, 245 Cal.App.4th at p. 1237.) These cases
hold that where the purpose of the fee or fine is nonpunitive, the fine or fee is collateral to
the crime and not oriented toward rehabilitation. (Pacheco, at 1403; Kim, at pp. 842-843;
Soto, at p. 1237; see People v. Vega (2005) 130 Cal.App.4th 183, 194-195 (Vega)
[“[f]ines are imposed for retribution and deterrence; fees are imposed to defray
administrative costs”].) 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.’ ” (Pacheco, 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.) The People apparently agree with Pacheco’s statement of the
law, but contend the cases on “the punitive nature of the fines are not dispositive because
probation conditions are not limited to punitive measures” but defendant’s rehabilitation.
Although we agree with the People that the purpose of probation is to assist in
defendant’s reformation and rehabilitation and that these fees were reasonably related to
defendant’s offenses, the cases on the punitive nature of fines or fees are nonetheless
relevant in determining whether the drug lab fee and the drug program fee can be
imposed as conditions of a defendant’s probation.
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

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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 drug lab
fee and drug program fee are not expressly mentioned in a statute as appropriately
imposed as a probation condition.
Health and Safety Code section 11372.5, subdivision (a), provides: “Every person
who is convicted of a violation of [the offenses enumerated therein including
sections 11378 and 11379] 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. [¶] With respect to those offenses specified in this
subdivision for which a fine is not authorized by other provisions of law, the court shall,
upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall
constitute the increment prescribed by this section and which shall be in addition to any
other penalty prescribed by law.” Under subdivision (b) of that section, the money must
be used to pay costs incurred by crime laboratories providing analyses for controlled
substances in connection with criminal investigations, to purchase and maintain
equipment used by those laboratories, and for continuing education and training of
forensic scientists regularly employed by these laboratories.
Health and Safety Code section 11372.7, subdivision (a), provides in pertinent
part, “[E]ach person who is convicted of [certain narcotics offenses, including a violation

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of Health and Safety Code sections 11378 and 11379] shall pay a drug program fee in an
amount not to exceed one hundred fifty dollars ($150) for each separate offense. The
court shall increase the total fine, if necessary, to include this increment, which shall be in
addition to any other penalty prescribed by law.” The drug program fee is mandatory,
provided the trial court determines the defendant has the ability to pay the fee.2 (Health
& Saf. Code, § 11372.7, subd. (b); People v. Clark (1992) 7 Cal.App.4th 1041, 1050.)
Subdivision (b) of section 11372.7 of the Health and Safety Code provides: “The
court shall determine whether or not the person who is convicted of a violation of this
chapter has the ability to pay a drug program fee. If the court determines that the person
has the ability to pay, the court may set the amount to be paid and order the person to pay
that sum to the county in a manner that the court believes is reasonable and compatible
with the person’s financial ability. In its determination of whether a person has the
ability to pay, the court shall take into account the amount of any fine imposed upon that
person and any amount that person has been ordered to pay in restitution. If the court
determines that the person does not have the ability to pay a drug program fee, the person
shall not be required to pay a drug program fee.” Under subdivision (c)(2) of Health and
2 Defendant reported that he was a licensed general contractor. Although the trial
court here did not expressly find defendant had the ability to pay the drug program fee, it
found defendant had the ability to pay attorney’s fees and presentence incarceration costs.
The trial court impliedly found defendant had the ability to pay the drug program fee. No
express finding as to a defendant’s ability or inability to pay is required on the record.
(Health & Saf. Code, § 11372.7, subd. (b); People v. Turner (2002) 96 Cal.App.4th 1409,
1414 (Turner); People v. Martinez (1998) 65 Cal.App.4th 1511, 1516 (Martinez); People
v. Staley (1992) 10 Cal.App.4th 782, 785.)

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Safety Code section 11372.7, at least one-third of these funds must be used for drug
prevention programs in schools and the community.
Penal Code section 1464 and Government Code section 76000 mandate penalties
or assessments upon every “fine, penalty, or forfeiture” imposed by a trial court in a
criminal case.3 However, such penalty assessments are not assessed or added to “fees.”
Accordingly, if the $50 drug lab fee imposed under section 11372.5, and/or the drug
program fee imposed under section 11372.7 is actually a “fine,” or a “penalty,” and not a
“fee,” then an additional penalty assessment must be added. In this case, the trial court
added penalty assessments to the drug lab fee, raising that amount to $205. The court
also added a fine and penalty assessment to the drug program fee, raising that assessment
to $205.
Until recently, the law was settled that both the drug lab fee and drug program fee
are fines or penalties subject to imposition of penalties and assessments. Although these
cases are not directly on-point in the context of payment of these costs as conditions of
probation, a brief summary of this case law will help provide guidance in this case.
3 Penal Code section 1464, subdivision (a)(1), provides in part: “Subject to
Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and
except as otherwise provided in this section, there shall be levied a state penalty in the
amount of ten dollars ($10) 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 . . . .”
Government Code section 76000, subdivision (a)(1), provides in part: “Except 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 . . . .”

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In People v. Sierra (1995) 37 Cal.App.4th 1690 (Sierra), the Fifth District
concluded that the drug program fee imposed under Health and Safety Code
section 11372.7 is a “fine and/or a penalty to which the penalty assessment provisions of
Penal Code section 1464 and Government Code section 76000 apply.” (Sierra, at
p. 1696.) The court reached this conclusion because Health and Safety Code
section 11372.7 “defines the drug program fee as an increase to the ‘total fine’ and
later as a fine in addition to ‘any other penalty.’ ” (Sierra, at p. 1695, italics omitted.)
The court stated this was “[t]he only reasonable interpretation of Health and Safety Code
section 11372.7 . . . .” (Sierra, at p. 1696.)
A few years later, in Martinez, supra, 65 Cal.App.4th 1511, the Second District,
Division Five, extended the reasoning of Sierra to conclude the drug lab fee imposed
under Health and Safety Code section 11372.5 is also a fine and therefore subject to
mandatory penalty assessments. (Martinez, at p. 1522.) The court held: “Under the
reasoning of Sierra, we conclude Health and Safety Code section 11372.5, defines the
criminal laboratory analysis fee as an increase to the total fine and therefore is subject to
penalty assessments . . . .” (Martinez, at p. 1522; see People v. Sharret (2011) 191
Cal.App.4th 859, 869 (Sharret) [“the Legislature intended the [Health and Safety Code]
section 11372.5 criminal laboratory analysis fee to be punitive”].)
In People v. Talibdeen (2002) 27 Cal.4th 1151 (Talibdeen), the California
Supreme Court did not directly address whether the drug lab fee was actually a fine, but
instead focused on the related issue of whether a trial court has discretion to waive

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penalties under Penal Code section 1464. The court in Talibdeen held such penalties are
mandatory. (Talibdeen, at pp. 1156-1157.)
The first hint that a court might determine the drug lab fee is not a fine or penalty
occurred three years later, in a decision from the Second District, Division Seven in
Vega, supra, 130 Cal.App.4th 183. In Vega, the defendants were convicted of conspiracy
to transport cocaine and to possess cocaine for sale, but they were not convicted of
transporting cocaine or possessing it for sale. (Id. at p. 185.) The issue on appeal was
whether the court was authorized to impose the drug lab fee where Health and Safety
Code section 11375.2 required such a fee for transporting or possessing cocaine for sale,
but made no mention of a conviction for conspiracy to commit those same offenses.
(Vega, at pp. 193-194.) The court held that because a conspiracy is punished in the same
manner as the underlying felony, the dispositive question was whether the drug lab fee
constituted punishment. (Ibid.) The court held the drug lab fee is not punishment
because its purpose is not retribution or deterrence, but instead to defray the
“administrative cost” of testing the purported drugs in order to secure the defendant’s
conviction. (Id. at p. 195.) Because the court held the drug lab fee was not properly
imposed, it ordered the fee as well as the associated penalty assessments stricken. (Ibid.)
Another published case on the issue of whether the costs of drug lab and drug
program are fees and not fines or penalties is Watts, supra, 2 Cal.App.5th 223, a decision
from the First District, Division One. In Watts, the Court of Appeal first addressed
whether the Supreme Court’s decision in Talibdeen was controlling on this issue.

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Stating, “ ‘[I]t is axiomatic that cases are not authority for propositions not considered,’ ”
the court in Watts at page 231 noted the defendant in Talibdeen never argued the
assessments were inapplicable, and the Supreme Court never mentioned whether the drug
lab cost was a “fee” or “fine” or “penalty.” (Watts, at p. 231.) Noting the Supreme Court
in Talibdeen “assumed, but never decided” the penalty applied to the drug lab fee, the
court in Watts decided “Talibdeen is not authority for the proposition that penalty
assessments apply to the fee.” (Watts, at p. 231.)
Disagreeing with Sierra and Martinez, the court in Watts determined the
Legislature intended the drug lab fee “to be exactly what it called it in the first paragraph
[of Health and Safety Code section 11372.5], a fee, and not a fine, penalty, or forfeiture
subject to penalty assessments.” (Watts, supra, 2 Cal.App.5th at p. 231.) The court
found support for its conclusion in Health and Safety Code section 11372.5’s legislative
“evolution,” noting that when originally enacted in 1980, the statute “required every
person convicted of an enumerated offense to, ‘as part of any fine imposed, pay an
increment in the amount of fifty dollars ($50) for each separate offense.’ ” (Watts, at
p. 234, italics omitted.) The court in Watts found it significant that when this portion of
the statute was later amended, the Legislature eliminated the reference to the fee’s being
part of the “ ‘fine imposed’ ” and renamed it from being an “ ‘increment’ ” to a “ ‘fee.’ ”
(Ibid.) The Watts court also agreed with Vega, supra, 130 Cal.App.4th at page 195, that
the drug lab fee is imposed to defray administrative costs, and therefore is a fee. (Watts,
at p. 235.)

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In contrast to Vega, supra, 130 Cal.App.4th 183 and Watts, supra, 2 Cal.App.5th
223, in Sharret, supra, 191 Cal.App.4th at page 869, the Court of Appeal, Second
Appellate District, Division Five, held that the drug lab fee was in fact punitive in nature.
Among other considerations, the Sharret court relied on the fact that the fee is imposed
only upon a criminal offense, and does not apply in any civil context, that separate fees
are imposed for each conviction and thus the fee “is assessed in proportion to a
defendant’s culpability,” and that the fee is mandatory and has no ability to pay
requirement. (Sharret, at p. 870.) The court further noted that the fund into which the
fee is deposited is earmarked for criminal investigations, which has no civil purpose, and
there is no evidence that the enacting legislation “was a mere budget measure” like other
statutory fees. (Ibid.)
More recently, in People v. Moore (2017) 12 Cal.App.5th 558 (Moore), the court
rejected the reasoning in Watts and agreed with earlier decisions that “the levy imposed
under section 11372.5 constitutes a fine or penalty that is subject to penalty assessments.”
(Moore, at p. 560.) The court observed initially that “Section 11372.5 uses four different
terms to refer to the same levy. . . . [S]ubdivision (a) describes the levy as a ‘criminal
laboratory analysis fee,’ ‘a fine,’ an ‘increment,’ and a penalty to be imposed ‘in addition
to any other penalty prescribed by law.’ [Citation.] Thus, the labels used by
section 11372.5, by themselves, do not clearly answer whether the levy is a fee or a fine
or penalty.” (Moore, at pp. 563-564, italics omitted.) Nonetheless, the court reasoned
that “the language of the statute and the weight of case authority” leads to the conclusion

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the criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty
assessments. (Id. at p. 570.) The court explained that such an interpretation was
necessary to avoid rendering the second paragraph a “nullity” as the Watts court had done
(Moore, at p. 570) and that “[e]ven if the interplay of base and total fines is imprecisely
drawn, the Legislature’s redundant inclusion of language granting the trial court the
ability to increase the total fine in addition to any other penalty suffices to make
section 11372.5 subject to penalty assessments.” (Moore, at p. 571).
The court also rejected the conclusion in Watts that the statute serves an
administrative purpose. The court agreed that the determination of whether a charge is a
“fee” or “fine” can be made, in most cases, “ ‘on the basis of the purpose of the charge
imposed. Fines are imposed for retribution and deterrence; fees are imposed to defray
administrative costs.’ ” (Moore, supra, 12 Cal.App.5th at p. 564.) Unlike the courts in
Watts and Vega, the court in Moore concluded that “Section 11372.5 appears to have the
dual purposes of a fee and a fine. Subdivision (b) of section 11372.5 provides that the
levy be deposited by the county treasurer in a criminalistics laboratories fund. The
county may thus ‘retain an amount of this money equal to its administrative cost incurred
pursuant to this section.’ [Citation.] Thus, subdivision (b) signals a fee purpose to the
levy. Subdivision (c) proceeds to signal a fine purpose to the statute where it requires the
county treasurer to ‘annually distribute those surplus funds’ from the criminalistics
laboratories fund ‘in accordance with the allocation scheme for distribution of fines and
forfeitures set forth in Section 11502.’ [Citation.] In other words, a portion of the levy

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under subdivision (b) appears to serve the purpose of a fee and subdivision (c) treats the
remainder as a fine. Neither purpose predominates over the other.” (Moore, supra, at
p. 565, fn. & italics omitted.)
Still more recently, another court has also disagreed with Watts and held that the
laboratory analysis fee and the drug program fee are subject to penalty assessments.
(People v. Alford (2017) 12 Cal.App.5th 964 (Alford).) The court in Alford placed heavy
reliance on its view that Talibdeen, supra, 27 Cal.4th 1151 controls and that “assessments
(regardless of their identification as a fee or fine) ‘arising from [criminal] convictions are
generally considered punishment.’ ” (Alford, at pp. 975-976.)
Relying on Vega and Watts, defendant contends the drug lab fee and drug program
fee are nonpunitive in nature, and therefore cannot be imposed as conditions of probation.
Sharret, supra, 191 Cal.App.4th 859 cannot be reconciled with Vega, supra, 130
Cal.App.4th 183 and Watts, supra, 2 Cal.App.5th 223. Compounding the problem in this
instance is the fact that Sharret and Vega are both Second Appellate District opinions.
Nevertheless, we see no reason to depart from the California Supreme Court’s
guidance in Talibdeen, supra, 27 Cal.4th 1151. (See also Alford, supra, 12 Cal.App.5th
at pp. 974-975 [“First, in our view, we are governed by Talibdeen’s legal determination
that the penalty is mandatory, even if the Talibdeen defendant did not specifically raise
the issue presented here. . . . The Talibdeen court held the penalty statute assessments are
mandatory after the imposition of a laboratory fee, and the high court has not issued any
contrary rulings since that time. We thus find Talibdeen controlling under the

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circumstances of this case.”].) Generally speaking, even dicta from the California
Supreme Court is to be followed. (Hubbard v. Superior Court (1997) 66 Cal.App.4th
1163, 1169.) Moreover, although we agree with Vega that one purpose of Health and
Safety Code section 11372.5 is to offset the cost of testing drugs confiscated from
persons convicted of certain drug offenses, this does not mean the Legislature did not
have more than one purpose in enacting Health and Safety Code sections 11372.5 and
11372.7. A fine and fee system can serve as deterrence and punishment, and help
mitigate the effects of crime. These goals are not mutually exclusive. Furthermore, such
multiple purposes do not evidence a legislative intent to exempt the drug lab fee and drug
program fee from otherwise mandatory penalty assessments. None of the reasoning in
Watts compels us to revise the long-settled interpretation of the drug lab fee as a fine
subject to penalty assessments. (Turner, supra, 96 Cal.App.4th at p. 1414, fn. 3, &
p. 1416, fn. 5 [court found the issue “settled” and reaffirmed that the drug lab fee is a fine
and thus imposition of the penalty assessments mandatory].)
Indeed, even Vega, supra, 130 Cal.App.4th 183 acknowledged that “[a] cogent
argument can be made from the language of Health and Safety Code section 11372.5,
subdivision (a) [that] the Legislature intended the $50 laboratory ‘fee’ to be an additional
punishment for conviction of one of the enumerated felonies.” (Id. at p. 194.) This is
because the statute refers to the “ ‘fee’ ” as a “ ‘fine’ ” which may be imposed in
increments reflecting the number of offenses committed in addition to any other
“ ‘penalty’ ” prescribed by law. (Ibid.) Furthermore, Sharret, supra, 191 Cal.App.4th

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859 engaged in an exhaustive analysis of the fines and fees which may or must be
imposed upon conviction and the cases interpreting them, finding no less than eight
reasons for concluding that “the Legislature intended the [Health and Safety Code]
section 11372.5 criminal laboratory analysis fee to be punitive.” (Id. at pp. 869-870.)
We find Sharret, supra, 191 Cal.App.4th 859 the more persuasive of the two
conflicting lines of authority and adopt its conclusion that the drug lab fee and drug
program fee are punitive. Although Health and Safety Code sections 11372.5 and
11372.7 refer to the imposition of a “fee,” the sections reflect the imposition of both a
fine and a penalty, especially when considered with other statutes. (§§ 11372.5,
subd. (a), 11372.7, subds. (a) & (b), 11502, subd. (a); Pen. Code, §§ 1205, 1464.8.) Both
Vega, supra, 130 Cal.App.4th 183 and Sharret attempted to divine the legislative intent
behind Health and Safety Code section 11372.5. While Vega concluded that the statute’s
main purpose was to defray the cost of lab testing (Vega, at p. 195), Sharret found that
the statute was intended to be a punitive measure (Sharret, at p. 869).
Both Vega, supra, 130 Cal.App.4th 183 and Sharret, supra, 191 Cal.App.4th 859
cited the statute’s specific attributes in support of their respective holdings. According to
Vega, “[t]he legislative description of the charge as a ‘laboratory analysis fee’ strongly
supports our conclusion, as does the fact the charge . . . does not slide up or down
depending on the seriousness of the crime, and the proceeds from the fee must be
deposited into a special ‘criminalistics laboratories fund’ maintained in each county by
the county treasurer.” (Vega, at p. 195, italics omitted.)

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However, the factors cited by Sharret, supra, 191 Cal.App.4th 859 in support of
its holding—the fee is imposed only on conviction of a criminal offense, it is assessed in
proportion to culpability based on the number of offenses, and its imposition is
mandatory and does not depend on a defendant’s ability to pay—are more compelling.
(Id. at p. 870.) Contrary to Vega’s description, the fee is not flat. Although it is tied to
the number of offenses committed by a defendant, rather than the seriousness of each
crime, it is still imposed in proportion to culpability. Furthermore, although Vega, supra,
130 Cal.App.4th 183 cites the fund into which the proceeds must be deposited, the fund
has no application in a civil context (Sharret, at p. 870), thus supporting the conclusion
that the fee constitutes punishment and completing our analysis. (See Smith v. Doe
(2003) 538 U.S. 84, 92 [“If the intention of the legislature was to impose punishment,
that ends the inquiry”].)
Bound by Talibdeen, supra, 27 Cal.4th 1151, we find Sharret more persuasive
than Vega and Watts and reject defendant’s assertions that the drug lab fee and drug
program fee are not punitive in nature. Defendant appears to argue Talibdeen is not
controlling because that case did not decide the issue directly and the Supreme Court only
assumed without deciding that penalty assessments attach to the drug lab fee under
Health and Safety Code section 11372.5. However, the Talibdeen court’s language is
clear: the Supreme Court stated Penal Code section 1464 and Government Code
section 76000 “called for”—that is, required—imposition of penalties on the drug lab fee

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imposed under Health and Safety Code section 11372.5. (Talibdeen, supra, 27 Cal.4th at
p. 1153.)
Indeed, even the Vega court formulated the holding of Talibdeen in a manner
consistent with our reading of that decision. As previously explained, in Vega, the Court
of Appeal stated “a cogent argument” can be made that the drug lab fee is an additional
punishment, and “[s]upport for this interpretation” can be found in Talibdeen which
“held” the penalty assessments applicable to every “ ‘fine’ ” applied to the drug lab fee.
(Vega, supra, 130 Cal.App.4th at p. 194.)
We see no reason to depart from the California Supreme Court’s guidance in
Talibdeen. In our view, Talibdeen controls, and the court in Watts has also
misinterpreted Vega, which merely addressed whether the drug lab fee applied to the
conviction in the first instance, not whether penalty assessments were properly levied on
it. (Vega, supra, 130 Cal.App.4th at p. 195.) Moreover, although we agree with the Vega
court’s statement that one purpose of Health and Safety Code section 11372.5 is to offset
the cost of testing drugs confiscated from persons convicted of certain drug offenses, that
does not mean the Legislature may not have had more than one purpose in enacting
section 11372.5, and does not make an otherwise penal statute not punitive.
A fine and fee system can serve deterrence and punishment, and help mitigate the
effects of crime. These goals are not mutually exclusive—any particular assessment can
seek to achieve more than one of these goals. For example, assessments could be
sufficiently high to punish criminal activity with the resulting revenue used to offset the

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negative effects of the crime, or help defray the cost of prosecution. Such multiple
purposes do not evidence a legislative intent to exempt money mandated under either
Health and Safety Code section 11372.5 or 11372.7 from the mandatory penalties.
As to the penalties assessed on the drug program fee (Health & Saf. Code,
§ 11372.7), we find the reasoning in Sierra and Martinez to be persuasive and conclude
that penalty assessments are also applicable to the drug program fee. A minimum of one-
third of the money collected under this statute must be used for drug prevention programs
in schools and the community. (Health & Saf. Code, § 11372.7, subd. (c)(2).) As such,
the funds are not designed to compensate the government for the cost of prosecuting any
particular defendant, and therefore are not fees, but instead are additional punishment.
Accordingly, we deem the drug lab fee under Health and Safety Code
section 11372.5 and the drug program fee under Health and Safety Code section 11372.7
to be a “punishment” such that these fees can be imposed as a condition of defendant’s
probation in this case.
B. Residence Approval Condition
As a condition of probation, defendant was required to “inform the probation
officer of [his] place of residence and reside at residence approved by the probation
officer.” Defendant argues that the term requiring a probation officer’s approval of his
choice of residence interferes with his rights to privacy and travel and to freedom of
association and must be stricken as unconstitutionally overbroad. We disagree.

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Probation is a suspension of a sentence and a revocable grant of release
conditioned upon supervision by a probation officer. (§ 1203, subd. (a).) Probation is
generally reserved for convicted criminals whose conditional release into society poses
minimal risk to public safety. (People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).)
Persons placed on probation by a court shall be under the supervision of the county
probation officer who shall determine both the level and type of supervision consistent
with the court-ordered conditions of probation. (§ 1202.8, subd. (a).) “ ‘Probation is not
a right, but a privilege.” (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v.
Bravo (1987) 43 Cal.3d 600, 608.) “ ‘[I]f the defendant feels that the terms of probation
are harsher than the sentence for the substantive offense[,] he is free to refuse
probation.’ ” (People v. Rubics (2006) 136 Cal.App.4th 452, 459 (Rubics), disapproved
on another ground as stated in People v. Martinez (2017) 2 Cal.5th 1093, 1099-1104,
quoting People v. Miller (1967) 256 Cal.App.2d 348, 356.)
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety . . . .” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) We review their decisions for abuse of discretion. A trial court abuses its
discretion when the probation conditions imposed are arbitrary, capricious, or exceed the
bounds of reason. (Ibid.) A condition will not be invalidated as unreasonable unless it
satisfies each of the following criteria: (1) it has no relationship to the crime of which the
offender was convicted; (2) it relates to conduct which is not itself criminal; and (3) it
requires or forbids conduct which is not reasonably related to future criminality. (People

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v. Lent (1975) 15 Cal.3d 481, 486 (Lent); Carbajal, at p. 1121.) The test is conjunctive.
All three prongs must be satisfied before an appellate court will find it invalid. (Lent, at
p. 486.) “[E]ven if a condition of probation has no relationship to the crime of which a
defendant was convicted and involves conduct that is not itself criminal, the condition is
valid as long as the condition is reasonably related to preventing future criminality.”
(People v. Olguin (2008) 45 Cal.4th 375, 380 (Olguin).) A condition of probation that
enables a probation officer to effectively supervise a probationer is reasonably related to
future criminality. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241
(Kwizera).)
Where there is a constitutional challenge based on vagueness or overbreadth, and
the matter presents a pure question of law that can be resolved without resort to the
record, the standard of appellate review is de novo. (In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.) However, not every term which requires a defendant to give
up a constitutional right is per se unconstitutional. (People v. Mason (1971) 5 Cal.3d
759, 764-765, overruled on a different point as stated in Lent, supra, 15 Cal.3d at p. 486,
fn. 1.) Probation conditions may place limits on constitutional rights if they are
reasonably necessary to meet the twin goals of rehabilitation of the defendant and
protection of the public. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941 (Bauer).)
As pointed out by the People, defendant did not object to the residence approval
condition at issue in the trial court. But where a claim that a probation condition is
facially overbroad and violates fundamental constitutional rights is based on undisputed

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facts, it may be treated as a pure question of law, which is not forfeited by failure to raise
it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); Welch,
supra, 5 Cal.4th at p. 235.) The forfeiture doctrine does apply if the objection involves a
discretionary sentencing choice or unreasonable probation conditions “premised upon the
facts and circumstances of the individual case.” (Sheena K., at pp. 885, 888.) As such,
we will only address defendant’s overbreadth claim.
“If a probation condition serves to rehabilitate and protect public safety, the
condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer,
who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ”
(People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, quoting People v. Lopez (1998) 66
Cal.App.4th 615, 624.) But an otherwise valid condition that impinges upon
constitutional rights “must be carefully tailored, ‘ “reasonably related to the compelling
state interest in reformation and rehabilitation . . . .” ’ ” (Bauer, supra, 211 Cal.App.3d at
p. 942, quoting In re White (1979) 97 Cal.App.3d 141, 146 (White); accord, Olguin,
supra, 45 Cal.4th at p. 379; Sheena K., supra, 40 Cal.4th at p. 890.)
A probation condition cannot be overbroad. (Olguin, supra, 45 Cal.4th at
p. 384; Sheena K., supra, 40 Cal.4th at p. 890.) “A restriction is unconstitutionally
overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored
carefully and reasonably related to the compelling state interest in reformation and
rehabilitation.’ [Citations.] The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it

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imposes on the defendant’s constitutional rights—bearing in mind, of course, that
perfection in such matters is impossible, and that practical necessity will justify some
infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Defendant argues the probation condition in question violates his rights to travel
and to free association. Defendant relies primarily on Bauer, supra, 211 Cal.App.3d 937.
We agree that these rights are constitutional and fundamental, and that the conditions
curtail them. (Bauer, at p. 944.) However, we do not agree that the conditions violate the
rights in the sense that the restrictions imposed are unreasonable or otherwise
constitutionally impermissible. (White, supra, 97 Cal.App.3d at p. 146.) Insofar as
probation is a grant of supervised release in lieu of confinement, virtually all probation
conditions restrict these rights. “ ‘Inherent in the very nature of probation is that
probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled.’ ”
[Citation.] Just as other punishments for criminal convictions curtail an offender’s
freedoms, a court granting probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens.’ [Citation.]” (People v.
Barajas (2011) 198 Cal.App.4th 748, 753.) Since it is impossible to travel or to associate
freely with persons of one’s choice from inside a prison cell, probation is generally a
great deal for the grantee. If defendant felt otherwise, he was free to refuse probation,
and instead serve his sentence. (Rubics, supra, 136 Cal.App.4th at p. 459.)
In Bauer, the reviewing court struck a residence condition apparently designed to
prevent the defendant from living with his overprotective parents. (Bauer, supra, 211

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Cal.App.3d at p. 944.) Nothing in the record suggested the defendant’s home life
contributed to the crimes of which he was convicted (false imprisonment and simple
assault), or that living at home reasonably related to future criminality. (Ibid.) The court
concluded the probation condition impinged on the defendant’s right to travel and
freedom of association, and was extremely broad since it gave the probation officer the
power to forbid the defendant “from living with or near his parents—that is, the power to
banish him.” (Ibid.)
The present case is distinguishable. Bauer concerned a 26-year-old man who had
lived with his parents all his life. There was no evidence that his “exemplary” home life,
or his parents, had contributed to his crime in any way. (Bauer, supra, 211 Cal.App.3d at
p. 944.) Residing with one’s parents, the court noted, is conduct not in itself criminal,
and the probation department could not use the condition to “banish” the defendant from
his parents. (Id at pp. 943-944.) The situation here is different. Banishment is not an
issue. Unlike the condition in Bauer, the residence condition imposed here is not a wolf
in sheep’s clothing; it is not designed to banish defendant or to prevent him from living
where he pleases. Moreover, unlike the defendant in Bauer, where defendant lives may
directly affect his rehabilitation, considering his issues with controlled substances.
Without a limitation placed by the residence condition or without supervision, for
example, defendant could opt to live where drugs are used, sold, or manufactured. A
probation officer supervising a person like defendant must reasonably know where he
resides and with whom he is associating in deterring future criminality.

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The residency condition is necessary under these circumstances to aid in
defendant’s rehabilitation, and not to banish defendant from any geographic region. The
residency condition properly serves the state’s interest in reformation and rehabilitation
because where he lives will directly affect his rehabilitation. The nature of defendant’s
crimes suggests a need for oversight. Defendant in this case partly used his home to
commit his crimes. He was transporting and selling methamphetamine to and from his
home. Where he lives will directly affect his rehabilitation. Like the court in Bauer, we
do not find that the condition itself is inappropriate in all circumstances (see Bauer,
supra, 211 Cal.App.3d at p. 944 [finding residence approval condition not related to the
defendant and his crimes in the case, but not invalidating the condition in every case]),
but that such approval here was warranted as the requirement relates to defendant’s future
criminality and crimes.
Furthermore, the legal landscape has changed since Bauer, supra, 211 Cal.App.3d
937. 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

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serves to inform and protect a probation officer charged with supervising a probationer’s
compliance with specific conditions of probation.” (Id. at p. 381.)
The Supreme Court in Olguin, supra, 45 Cal.4th 375 also stated that “[a] probation
condition should be given ‘the meaning that would appear to a reasonable, objective
reader.’ [Citation.]” (Id. at p. 382.) We view the residence approval condition here in
light of Olguin and presume a probation officer will not withhold approval for irrational
or capricious reasons. (Id. at p. 383.) A probation officer cannot issue directives that are
not reasonable in light of the authority granted to the officer by the court. Thus, a
probation officer cannot use the residence condition to arbitrarily disapprove a
defendant’s place of residence. The condition does not grant a probation officer the
power to issue arbitrary or capricious directives that the court itself could not order. (See,
e.g., Kwizera, supra, 78 Cal.App.4th at pp. 1240-1241 [a case concerning a condition
requiring a probationer to obey directions from his probation officer].)
Moreover, as previously observed, “probation is a privilege and not a right, and
that adult probationers, in preference to incarceration, validly may consent to limitations
upon their constitutional rights—as, for example, when they agree to warrantless search
conditions. [Citations.]” (Olguin, supra, 45 Cal.4th at p. 384.) “If a defendant believes
the conditions of probation are more onerous than the potential sentence, he or she may
refuse probation and choose to serve the sentence. [Citation.]” (Id. at p. 379.) In sum,
although the residency condition may restrict his movements and his choice of places to

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live, requirement that defendant obtain his probation officer’s approval of his residence is
not unconstitutionally overbroad.
IV
DISPOSITION
We direct the clerk of the superior court to modify its minute order for the hearing
held January 25, 2016, to clarify that the payment of costs of probation supervision, the
court operations security assessment fee, and the court conviction assessment fee are not
a condition of probation, but a separate court order. We will further direct the clerk of
the superior court to modify its January 25, 2016 minute order to clarify that payment of
the drug lab fee under Health and Safety Code section 11372.5 and the drug program fee
under Health and Safety Code section 11372.7 are conditions of defendant’s probation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.

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