P. v. Padilla
Filed 7/23/13 P. v. Padilla CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY
JOSEPH PADILLA, JR.,
Defendant and Appellant.
A137049
(Lake
County
Super. Ct.
No. CR930310)
I.
Introduction
Anthony
Joseph Padilla, Jr. appeals from a judgment entered following his “open†plea
of no contest to one count of transportation
of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and
one count of driving on a revoked driver’s license (Veh. Code, § 14601.1,
subd. (a)). As part of the negotiated
plea, appellant also admitted two prior convictions for
sale (Health & Saf. Code, § 11370.2, subd. (c)), and admitted that
he had served two prior prison terms, within the meaning of Penal Code section
667.5, subdivision (b).
The
sole issue raised on appeal is his contention that the trial court erroneously
imposed a discretionary $600 aggregate drug program fee, pursuant to Health and
Safety Code section 11372.7, without finding that he had the ability to
pay the fee. We affirm.
II.
Factual and Procedural Backgrounds
On
August 21, 2012, a
complaint was filed charging defendant with one count each of transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession
of methamphetamine for sale (Health & Saf. Code, § 11378), misdemeanor
evading a police officer (Veh. Code, § 2800.1, subd. (a)), misdemeanor
destruction of evidence (Pen. Code, § 135), and misdemeanor driving on a
revoked driver’s license (Veh. Code, § 14601.1, subd. (a)). Numerous special allegations were included in
the complaint, including the aforementioned allegations of prior convictions
for possession of a controlled substance for sale (Health & Saf. Code,
§ 11370.2, subd. (c)), and the allegations that he had served two prior
prison terms, within the meaning of Penal Code section 667.5, subdivision (b).
After
entering a plea of not guilty to all charges and denying all special
allegations, appellant entered into a negotiated disposition with the
prosecution. Pursuant to this agreement
appellant agreed to change his plea to no contest the one count of
transportation of methamphetamine (Health & Saf. Code, § 11379, subd.
(a)), and one count of driving on a revoked driver’s license (Veh. Code,
§ 14601.1, subd. (a)). Appellant
also admitted both two prior convictions for possession of a controlled
substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and that
he had served two prior prison terms, within the meaning of Penal Code section
667.5, subdivision (b). Appellant
understood that his plea was “open†with no promise being made as to the
sentence he would receive. While he hoped
the court would grant him probation and allow him to enter a residential drug
treatment program, he understood he could receive a total, aggregate state
prison term of 12 years.
Sentencing
took place on October 23, 2012. At that
time probation was denied, and appellant was ordered to serve an aggregate
appellant’s sentence. As is material to
this appeal, pursuant to Health and Safety Code section 11372.7, the court
imposed a drug program fee of $150, plus a penalty assessment of $450, for a
total drug program fee of $600. At the
time sentence was pronounced, no objections were made by appellant to any of
the elements of the sentence imposed, including the $600 drug program fee.
For
the first time on appeal, appellant contends that the trial court erred in
imposing the $600 drug program fee without finding that he had the ability to
pay the fine. The Attorney General
argues that appellant forfeited the claim because he failed to object to
imposition of the fine in the trial court.
Both parties pointed out in their respective briefs on appeal that the
issue of forfeiture in failing to object to penalties and fees imposed at the
time of sentencing based on no showing the defendant had the ability to pay was
then pending before the California Supreme Court in People v McCullough (2013) 56 Cal.4th 589, review granted June 29,
2011, S192513 (McCullough).
III.
Discussion
In
fact, our Supreme Court’s opinion in McCullough,
supra, 56 Cal.4th 589 was filed on
April 22, 2013. The court held that
“because a court’s imposition of a booking fee is confined to factual
determinations, a defendant who fails to challenge the sufficiency of the
evidence at the proceeding when the fee is imposed may not raise the challenge
on appeal.†(Id. at p. 597.) Thus,
the court concluded: “Given that
imposition of a fee is of much less moment than imposition of sentence, and
that the goals advanced by judicial forfeiture apply equally here, we see no
reason to conclude that the rule permitting challenges made to the sufficiency
of the evidence to support a judgment for the first time on appeal ‘should
apply to a finding of’ ability to pay a booking
fee . . . .†(
The
court’s forfeiture reasoning in McCullough
was specifically made applicable to other comparable fees and penalties
imposed without objection, including drug program fees. In fact, in the course of the court’s
analysis, it cited with approval People
v. Martinez (1998) 65 Cal.App.4th 1511, 1517, which held that a challenge
to a court order imposing a drug program fee under Penal Code section 11372.7,
subdivision (b) for failing to make findings of the defendant’s ability to pay
was forfeited in the absence of an objection in the trial court. (McCullough,
supra, 56 Cal.4th at p. 597.)
Accordingly,
we conclude that the issue was forfeited.
IV.
Disposition
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON,
J.
_________________________
HUMES, J.
name="_ftn1" title=""> [1] In the course of the McCullough opinion the Supreme Court also disapproved
1392, the principal case relied on by appellant in this appeal. (McCullough,
