>P. v.
Russell



















Filed 3/15/13 P. v. Russell
CA1/5







NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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



FIRST APPELLATE DISTRICT



DIVISION FIVE




>

THE PEOPLE, Plaintiff and Respondent, v. LARRY LEE RUSSELL, JR., Defendant and Appellant.

A134501 (Contra Costa County Super. Ct. No. 05-111362-0)

Appellant
Larry Lee Russell, Jr. was convicted by jury of possession of
cocaine base for sale (Health & Saf. Code, § 11351.5). The trial court found that Russell had been convicted
of the same crime on three prior occasions (Health & Saf. Code,
§ 11370.2) and had served two prior prison terms (Pen. Code, § 667.5,
subd. (b)).href="#_ftn1"
name="_ftnref1" title="">[1] Russell was sentenced to a 10-year
term, the first eight years to be served in county jail and the remaining two years to be served on
supervised community release. Russell
argues that the trial court erred in admitting evidence of two prior
convictions, failing to strike certain sentence enhancements, and ordering
payment of attorney, drug program, and criminal assessment fees. We conclude that the attorney fees order must
be reversed and that the judgment must be modified, but we otherwise affirm.

I. Factual and Procedural Background

Russell
was charged, by information, with possession of cocaine base for sale on January 12, 2011 (Health & Saf. Code, § 11351.5; count one),
possession of cocaine base for sale on March 18,
2011
(Health & Saf. Code, § 11351.5; count two), and possession of
hydrocodone for sale on March 18, 2011 (Health & Saf. Code,
§ 11351; count three). The
information also alleged that Russell was ineligible for probation
(§§ 1203, subd. (e)(4), 1203.07, subd. (a)(11)) and subject to
sentence enhancements because he had been convicted, on three prior occasions,
for possession of cocaine base for sale (Health & Saf. Code,
§ 11370.2) and had served two prior prison terms (§ 667.5,
subd. (b)). Russell entered a plea of
“not guilty.”

We
need only briefly summarize the evidence presented at trial. Richmond Police Officer Joseph Pineda
testified that, on January 12, 2011, at 1:42 p.m., he responded to a
disturbance call. Pineda detained
Russell to investigate the disturbance.
As Russell was being patsearched, Pineda felt small rocks in Russell’s
front pocket.

Pineda
removed a plastic baggie containing 17 to 20 rocks, each of which were
individually tied in plastic. No pipe
was found. Based on his drug training,
Pineda concluded that the rocks were cocaine base. Russell was arrested and spontaneously
said: “ ‘Come on, man, can’t I just
make the dope go away? Christmas
spirit. Give me a break.’ ” A chemical analysis of a random selection
from the 17 recovered rocks indicated that the samples contained cocaine
base. The remaining rocks appeared
similar in texture and appearance to the tested rocks. Pineda, based in part on the amount and the
manner in which it was packaged, opined that the cocaine base was possessed for
sale.

Richmond
Police Detective Thomas Hauschild testified that, on March 18, 2011, he
searched a residence in Richmond.
Russell was getting out of bed in the master bedroom. A woman was also present in the master
bedroom. On a nightstand in the bedroom,
Hauschild found two pill bottles containing hydrocodone, a plate with a razor
blade and residue from a white, chunky substance, and a shoebox containing a
razor blade, a digital scale, empty plastic bags, and plastic bags containing
cocaine base.

Closing
argument made clear that, with respect to count one, Russell only disputed his
intent to sell the cocaine base. With
respect to counts two and three, on the other hand, Russell contended that the
prosecution had not met its burden to prove his possession of a controlled
substance. After deliberating for
approximately one day, the jury found Russell guilty of count one and not
guilty of count three. The jury was unable
to reach a verdict as to count two or the lesser included offense to count three.

After
Russell waived his right to a jury trial on the prior convictions, the court
found the prior conviction and probation ineligibility allegations true. At sentencing, the court imposed a total term
of 10 years, comprised of a four-year term on count one, plus six years
for two of the prior conviction enhancements (Health & Saf. Code,
§ 11370.2, subd. (a)). The
third prior conviction enhancement was stayed, purportedly pursuant to section 654. Although no disposition of the
section 667.5, subdivision (b) prior prison term enhancements is
included in the abstract of judgment, the trial court stated, during the
sentencing hearing, that they were stayed, purportedly pursuant to
section 654. Pursuant to
section 1170, subdivision (h), Russell was to serve the first eight
years of his sentence in county jail and the remaining two years on supervised
community release. Among other fines and
fees, Russell was ordered to pay $500 in attorney fees, a $570 drug program
fee, and a $564 criminal assessment fee.
Russell filed a timely notice of appeal.

II. Discussion

On
appeal, Russell argues that the trial court erred in: (1) admitting evidence of two of his
prior convictions; (2) staying, instead of striking, sentence enhancements
relating to his prior drug convictions and prison terms; (3) imposing an
award of attorney fees, pursuant to section 987.8, and a drug program fee,
pursuant to Health and Safety Code section 11372.7, subdivision (a),
without considering Russell’s ability to pay; and (4) ordering Russell to
pay a criminal assessment fee without considering any evidence of actual costs
or ability to pay.

A. Evidence
of Prior Crimes

First, Russell contends that
his conviction must be reversed because the trial court abused its discretion
by admitting, under Evidence Code section 1101, subdivision (b), evidence
underlying two prior drug offense convictions.
He contends that the evidence was irrelevant or unduly prejudicial
(Evid. Code, § 352).href="#_ftn2"
name="_ftnref2" title="">[2]

“ ‘Rulings made under
[Evidence Code sections 1101 and 352] are reviewed for an abuse of
discretion. [Citation.]’ [Citation.]
‘Under the abuse of discretion standard, “a trial court’s ruling will
not be disturbed, and reversal . . . is not required, unless the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage
of justice.” [Citation.]’ [Citation.]”
(People v. Foster (2010) 50
Cal.4th 1301, 1328.)

1. >Background

Prior to trial, the prosecution gave notice that it
intended to introduce evidence of five of Russell’s prior drug convictions,
pursuant to Evidence Code section 1101, subdivision (b), to prove
knowledge of the nature of the drugs and intent to sell. Russell’s trial counsel moved to exclude the
evidence. The trial court ruled that the
evidence underlying two of the convictions (Mar. 23, 2004, & Feb. 27, 2009)
was relevant and more probative than prejudicial (Evid. Code, § 352). With respect to the 2004 conviction, the trial
court ruled that it would allow evidence of Russell’s conduct and his
conviction. With respect to the 2009
conviction, the trial court ruled that it would allow “the evidence behind the
arrest.”

Accordingly, at trial, the prosecution presented evidence
that, on October 29, 2008, a Richmond police officer saw Russell drop a bag
containing rocks of cocaine base. The
prosecution also presented evidence that Russell had been convicted, by virtue
of his guilty plea, of a 2003 charge of possessing a controlled substance for
sale. In that instance, Russell was
detained, in San Francisco, and found to be carrying a large plastic bag
containing individually-wrapped rocks of cocaine base. Russell did not have a pipe or show any signs
of being under the influence.

2. >Analysis

“ ‘Evidence that a defendant has committed crimes
other than those currently charged is not admissible to prove that the
defendant is a person of bad character or has a criminal disposition; but
evidence of uncharged crimes is admissible to prove, among other things, the
identity of the perpetrator of the charged crimes, the existence of a common
design or plan, or the intent with which the perpetrator acted in the
commission of the charged crimes. (Evid.
Code, § 1101.) Evidence of uncharged
crimes is admissible to prove identity, common design or plan, or intent only
if the charged and uncharged crimes are sufficiently similar to support a
rational inference of identity, common design or plan, or intent. [Citation.]’
[Citation.]” (>People v. Foster, supra, 50 Cal.4th
at p. 1328.) “ ‘The
admissibility of other crimes evidence depends on (1) the materiality of
the facts sought to be proved, (2) the tendency of the uncharged crimes to
prove those facts, and (3) the existence of any rule or policy requiring
exclusion of the evidence.’
[Citation.]” (>People v. Lindberg (2008) 45 Cal.4th 1,
22; accord, People v. Nible (1988)
200 Cal.App.3d 838, 847.)

Russell
contends the evidence of his prior convictions was irrelevant because they
“were remote and factually inapposite to the facts underlying this case.” His contention regarding remoteness need not
delay us long. The passage of time does
not necessarily reduce a previous crime’s probative value (People v. Ewoldt (1994) 7 Cal.4th 380, 405, superseded by statute
on other grounds, as stated in People v.
Robertson (2012) 208 Cal.App.4th 965, 991), especially when the
passage of time is largely explained, as it is here, by a defendant’s
incarceration for major portions of the periods between the offenses. (See People
v. Foster, supra, 50 Cal.4th at p. 1330; People v. Lewis (2009) 46 Cal.4th 1255, 1287; >People v. Davis (2009) 46 Cal.4th 539,
602.)

The
record belies Russell’s further contention that the prior convictions were
factually inapposite. He was convicted
in the instant proceeding of possession of cocaine base for sale. Accordingly, the prosecution was charged with
proving, among other things, that Russell possessed cocaine base with an intent
to sell it. (In re Christopher B. (1990) 219 Cal.App.3d 455, 465–467.) “[I]f the other crime sheds great light on
the defendant’s intent at the time he committed that offense it may lead to a
logical inference of his intent at the time he committed the charged offense if
the circumstances of the two crimes are substantially similar even though not
distinctive. [Citations.]” (People
v. Nible, supra, 200 Cal.App.3d at pp. 848–849.) Our Supreme Court has “long recognized ‘that
if a person acts similarly in similar situations, he probably harbors the same
intent in each instance’ [citations], and that such prior conduct may be
relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the
actor is disposed to commit such
acts; instead, the inference to be drawn is that, in light of the first event,
the actor, at the time of the second event, must have had the intent attributed
to him by the prosecution.
[Citations.]” (>People v. Robbins (1988) 45 Cal.3d 867,
879.)

The
facts underlying the prior convictions were sufficiently similar to prove
intent. The “least degree of similarity”
between the prior act and the charged offense is required for the prior act to
be admissible to prove intent: “In order
to be admissible to prove intent, the uncharged conduct must be sufficiently
similar to support the inference that the defendant ‘ “probably harbor[ed]
the same intent in each instance.” [Citations.]’ [Citation.]”
(People v. Ewoldt, supra, 7
Cal.4th at p. 402.) Here, Russell
was arrested in different locations in all three instances. But, on all three occasions, Russell
possessed multiple individual rocks of cocaine base inside a bag. Thus, if the jury believed he had an intent
to sell cocaine base in 2003 and 2008, the evidence was relevant to whether Russell
possessed cocaine base on January 12, 2011, with the intent to sell it. (Evid. Code, § 1101, subd. (b).)

“In
prosecutions for drug offenses, evidence of prior drug use and prior drug
convictions is generally admissible under Evidence Code section 1101,
subdivision (b), to establish that the drugs were possessed for sale
rather than for personal use and to prove knowledge of the narcotic nature of
the drugs. [Citation.]” (People
v. Williams (2009) 170 Cal.App.4th 587, 607; accord, >People v. Pijal (1973) 33 Cal.App.3d
682, 691.) Russell seeks to escape this
conclusion by arguing that neither element was seriously disputed in this
case. He relies on the fact that Pineda testified
that the packaging was consistent with possession for sale, rather than
possession for personal use. But, this
evidence does not mean that intent was not contested or necessarily make the
prior conviction evidence cumulative.
Russell’s plea of not guilty placed all the elements of the charged
crime at issue. (People v. Lindberg, supra, 45 Cal.4th at p. 23.) Furthermore, Russell never conceded that any
rocks of cocaine he possessed, on January 12, 2011, were possessed for
sale. In fact, during his closing
argument, Russell’s trial counsel specifically argued that “there certainly
isn’t any evidence beyond a reasonable doubt that [the cocaine base] was
possessed for sales.” The trial court
did not abuse its discretion in concluding that the prior crimes evidence was
relevant to prove Russell’s intent.
Accordingly, we need not decide whether it was also admissible to prove
knowledge of the nature of the substance.

Next,
Russell focuses his argument on Evidence Code section 352 and asserts that
the details of his prior offenses should have been excluded as unduly prejudicial. “When evidence of prior offenses is presented
to a jury, there is inherent danger of prejudice to an accused. Therefore, such evidence should be received
with caution and admitted only when its probative value outweighs its
prejudicial effect.” (>People v. Evers (1992)
10 Cal.App.4th 588, 599; accord, People
v. Tapia (1994) 25 Cal.App.4th 984, 1021.)

In
assessing prejudice, we must remember that “[t]he prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence. ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
“prejudicial.” The “prejudice” referred
to in Evidence Code section 352 applies to evidence which uniquely tends
to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues. . . .’ [Citation.]”
(People v. Karis (1988) 46
Cal.3d 612, 638.)

The
trial court did not abuse its discretion when it concluded that the probative
value of Russell’s prior criminal conduct was not outweighed by its risk for
undue prejudice. The evidence was highly
probative on the key disputed issue and not inflammatory. Furthermore, the jury was repeatedly
admonished not to use the prior conviction as evidence of Russell’s criminal
propensity. The record gives us no reason
to suspect that the jury disregarded the court’s instructions. To the contrary, after being reinstructed
that it could not consider the prior convictions for propensity purposes, the
jury found Russell not guilty on count three and deadlocked on count two.

B. Stay of Enhancements

Next,
Russell argues that the trial court erred by staying, rather than striking, the
prior prison term enhancements and the third prior conviction enhancement.> The trial court purported to stay the
enhancements pursuant to section 654.href="#_ftn3" name="_ftnref3" title="">[3] However, section 654 does not preclude
multiple use of prior convictions to impose status enhancements, such as those
at issue here. (People v. Coronado (1995) 12 Cal.4th 145, 158–159.) Furthermore, a prior drug conviction
resulting in a prison term can serve as the basis for separate, consecutive
enhancements under both Health and Safety Code section 11370.2 >and under section 667.5,
subdivision (b). (>People v. Gokey (1998) 62 Cal.App.4th
932, 933–934, 937 [Health & Saf. Code, § 11370.2 “specifically states
that the enhancement for a prior drug conviction is to be imposed ‘in addition
to any other punishment authorized by law, including Section 667.5 of the Penal
Code’ ”].)

Nonetheless,
the People agree that the trial court’s order constituted an unauthorized
sentence. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [“[o]nce the prior
prison term is found true within the meaning of section 667.5[,
subd. ](b), the trial court may not stay the one-year enhancement, which
is mandatory unless stricken”]; People v.
McCray (2006) 144 Cal.App.4th 258, 267 [trial court exceeded its
jurisdiction in staying enhancements under § 667.5, subd. (b), and Health
& Saf. Code, § 11370.2, subd. (a)]; People v. Haykel (2002) 96 Cal.App.4th 146, 151 [“ ‘[u]nless a
statute says otherwise, an enhancement may be imposed or stricken, but
. . . may not be stayed; to
do so is an illegal sentence’ ”]; People
v. Bradley (1998) 64 Cal.App.4th 386, 391 [“failure to impose or
strike an enhancement is a legally unauthorized sentence subject to correction
for the first time on appeal”]; People v.
Jones (1992) 8 Cal.App.4th 756, 758 [“an enhancement, if not imposed, must
be stricken”].) Accordingly, as
requested by the People, we will modify the judgment to strike the subject
enhancements.

C. Ability
to Pay Attorney Fees

Next,
Russell asserts that the trial court erred by ordering him to pay $500 in
attorney fees without considering his ability to pay. We address Russell’s argument notwithstanding
his failure to object at the sentencing hearing. (See People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, 1402 (Pacheco) [objection to order to reimburse attorney fees as a
condition of probation was not forfeited by defendant’s failure to raise it
below because challenge was to evidentiary basis]; People v. Viray (2005) 134 Cal.App.4th
1186, 1214 [“unless the defendant has secured a new, independent attorney when
such an order is made, she is effectively unrepresented
at that time, and cannot be vicariously charged with her erstwhile counsel’s
failure to object to an order reimbursing his own fees”]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)

Section 987.8,
subdivision (b), provides: “In any
case in which a defendant is provided legal assistance, either through the
public defender or private counsel appointed by the court, upon conclusion of
the criminal proceedings in the trial
court, or upon the withdrawal of the public defender or appointed private
counsel, the court may, after notice and a hearing, make a determination of the
present ability of the defendant to
pay all or a portion of the cost thereof.
The court may, in its discretion, hold one such additional hearing
within six months of the conclusion of the criminal proceedings. The
court may, in its discretion, order the defendant to appear before a county
officer designated by the court to make an inquiry into the ability of the
defendant to pay all or a portion of the legal assistance provided.” (Italics added.) Section 987.8, subdivision (d),
provides: “If the defendant, after
having been ordered to appear before a county officer, has been given proper
notice and fails to appear before a county officer within 20 working days,
the county officer shall recommend to the court that the full cost of the legal
assistance shall be ordered to be paid by the defendant. The notice to the defendant shall contain all
of the following: [¶] (1) A statement of the cost of the legal
assistance provided to the defendant as determined by the court. [¶] (2) The
defendant’s procedural rights under this section. [¶] (3) The time
limit within which the defendant’s response is required. [¶] (4) A warning
that if the defendant fails to appear before the designated officer, the
officer will recommend that the court order the defendant to pay the full cost
of the legal assistance provided to him or her.” (Italics added.) Section 987.8, subdivision (e),
provides, in relevant part: “>If the court determines that the defendant
has the present ability to pay all or a part of the cost, the court shall
set the amount to be reimbursed and order the defendant to pay the sum to the
county in the manner in which the court believes reasonable and compatible with
the defendant’s financial ability.
Failure of a defendant who is not in custody to appear after due notice
is a sufficient basis for an order directing the defendant to pay the full cost
of the legal assistance determined by the court. The order to pay all or a part of the costs
may be enforced in the manner provided for enforcement of money judgments
generally but may not be enforced by contempt.”
(Italics added.)

The
finding of ability to pay may be express or implied, so long as it is supported
by substantial evidence. (>Pacheco, supra, 187 Cal.App.4th at
p. 1400; People v. Lopez, supra, 129
Cal.App.4th at p. 1537; People v.
Phillips (1994) 25 Cal.App.4th 62, 76.)
On substantial evidence review, we determine only whether, upon review
of the entire record, there is substantial evidence of solid value,
contradicted or uncontradicted, to support the judgment below and will include
every fact that can reasonably be deduced from the evidence. (People
v. Phillips, at pp. 71–72.)

In >Pacheco, supra, 187 Cal.App.4th 1392, the trial court imposed attorney fees,
booking fees, probation supervision fees, and court security fees as conditions
of the defendant’s probation. But the
court made no finding of the defendant’s ability to pay. Instead, with respect to attorney fees, the
trial court referred the matter to the Santa Clara County Department of Revenue
for a determination of ability to pay. (>Id. at pp. 1396–1399,
1401–1402.) On appeal, the reviewing
court concluded that the referral was inadequate, because it “shed[] no light
on the issue” of the defendant’s ability to pay. (Id.
at p. 1398.) The court explained: “[T]he order to pay attorney fees was not
conditioned on or subject to whatever determination the department of revenue
might have made. Moreover, although
section 987.8, subdivision (b) provides that a county officer
designated by the court may make an inquiry into a defendant’s ability to pay
attorney fees, it is the court that
ultimately must make the ability to pay determination. Thus, this referral alone does not meet the
statutory directive. [¶] . . . [¶] [T]here is no evidence in the
record of Pacheco’s assets, employment status or other means of income from
which the court could have made a determination of his ability to pay attorney
fees as provided by section 987.8.
There is thus no required finding of Pacheco’s ability to pay attorney
fees, either express or implied, and, for this reason, the attorney fee order
cannot stand.” (Id. at pp. 1398–1399.)

Just
as in Pacheco, Russell was also
ordered to report to a county revenue office for consideration of his ability
to pay.href="#_ftn4" name="_ftnref4"
title="">[4] The People argue that this referral means
that Russell’s argument is not ripe.
But, the trial court did not order Russell to pay $500 in attorney fees
only after a determination by the Office of Revenue Collection of his ability
to pay. Nor did the trial court
otherwise indicate that the attorney fees order was conditioned upon such a
finding. Section 987.8,
subdivision (e), makes clear that the determination that a defendant has
the present ability to pay is a prerequisite to entry of an order requiring
payment of attorney fees. Because the
trial court entered an unconditional attorney fees order, we must consider
whether substantial evidence supports an express or implied finding that
Russell has the ability to pay.

Here,
the trial court did not make an express finding of Russell’s ability to pay,
nor was there any discussion of the issue at sentencing. And, even if we were to imply a finding by
the court of ability to pay, such a finding is not supported by substantial
evidence. “Ability to pay” means “the
overall capability” of the defendant to reimburse all or a portion of the
defense costs. (§ 987.8,
subd. (g)(2).) Ability to pay
requires consideration of the defendant’s financial position at the time of the
hearing, his or her “reasonably discernible” financial position over the
subsequent six months, including the likelihood of employment during that time,
and “[a]ny other factor or factors which may bear upon the defendant’s
financial capability to reimburse the county.”
(§ 987.8, subds. (g)(2)(A)–(D).) An express finding of unusual circumstances
is required when a defendant sentenced to state prison is ordered to pay
attorney fees. (People v. Lopez, supra, 129 Cal.App.4th at p. 1537.) Otherwise, it is presumed that such a
defendant does not have the present ability to pay. (§ 987.8, subd. (g)(2)(B).)

The
probation report did indicate that Russell had been employed in the past. However, it also reported that Russell was
not employed at the time of the offense and had no assets. “The specific language of section 987.8
expressly requires a finding of present
ability to pay for defense costs.” (>People v. Nilsen (1988) 199 Cal.App.3d
344, 350.) The fact that Russell may
have been employed at some unspecified time in the past does not constitute
substantial evidence of his present ability to pay even $500 in attorney
fees. Furthermore, since the court may
not consider a period beyond six months after the hearing in determining a
defendant’s ability to pay (§ 987.8, subd. (g)(2)(B)), Russell’s
eight-year jail term strongly suggests an inability to pay.

We
conclude there was insufficient evidence before the trial court of Russell’s
present ability to pay attorney fees.
Accordingly, we will reverse the attorney fees order and remand for a
determination under section 987.8 of Russell’s ability to pay.

D. Ability to Pay Drug
Program Fee

Next,
Russell contends that the trial court erred by ordering him to pay a $570 drug
program fee, pursuant to Health and Safety Code section 11372.7, without
considering his ability to pay.

Health
and Safety Code section 11372.7 provides, in relevant part: “(a) Except as otherwise provided in
subdivision (b) or (e), each person who is convicted of a violation of this
chapter 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.
[¶] (b) 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.”
(Italics added.)

This
Division has previously observed: “[The
Health and Safety Code section 11372.7 drug program fee] is mandatory
unless the defendant is unable to pay.”
(People v. Clark (1992) 7
Cal.App.4th 1041, 1050.) But, an express
finding regarding ability to pay is not required. (People
v. Martinez (1998) 65 Cal.App.4th 1511, 1516.) When the record does not suggest otherwise,
we will presume the trial court found the defendant had the ability to
pay. (People v. Clark, at p. 1050; People v. Burnett (2004) 116 Cal.App.4th 257, 261–262.)

Russell
argues that an implied finding of ability to pay cannot be supported here
because, “due to his lengthy incarceration, Russell has no ability to secure
employment and consequently, no earning capacity.” In this context, however, we are not
statutorily bound to consider only a defendant’s present ability to pay. “ ‘[A]bility to pay’ a drug program fee
does not require existing employment or cash on hand. Rather, a determination of ability to pay may
be made based on the person’s ability to
earn where the person has no physical, mental or emotional impediment which
precludes the person from finding and maintaining employment once his or her
sentence is completed.” (>People v. Staley (1992) 10 Cal.App.4th
782, 783 (Staley).)

In >Staley, supra, 10 Cal.App.4th 782,> the defendant was sentenced to a term
of four years, eight months in state prison.
Nonetheless, the reviewing court rejected his argument that the trial
court erred in imposing a drug program fee.
(Id. at pp. 784–785.)> The court reasoned: “In this case, defendant supported a $100 a
day drug habit by selling methamphetamine.
He had no other income and had not been employed since 1988 when he
worked for four months at minimum wage.
However, there is nothing in the record to suggest that defendant (who
was 31 years old at the time of sentencing) is physically, mentally or
emotionally unable to find and maintain productive employment once his sentence
is completed. The trial court had an
opportunity to observe defendant, and we presume the court discerned no such
disabling characteristics. If there were
any such latent impediments, defendant would be in the best position to know of
and develop that information. Since he
failed to object to imposition of the drug program fee or to request a hearing
on his ability to pay, we assume there are no such impediments. . . .
[¶] . . . Accepting the sincerity of defendant’s stated
intention to mend his ways and to lead a productive life in the future, the
trial court was entitled to conclude that defendant has the ability to satisfy
this modest [$300] debt to society by fulfilling his goal of obtaining
employment with his father once he
completes his sentence. In other
words, the record supports an implied determination of ability to pay. Hence, the trial court not did err in
imposing the drug program fees.” (>Id. at p. 786, italics added.)

We do
not see a reasoned basis to distinguish this case based on Russell’s eight-year
term, rather than the almost five-year term at issue in Staley. Like the defendant
in Staley, Russell did not object to
the drug program fee below or point out any impediments to earning an income in
the future. The probation report did
report that Russell was not employed at the time of the offense and that he had
no assets. However, the record showed
that he had been employed in the past.
Russell himself states on appeal:
“[I] will be in no position to pay such a fee until [I am]> released from custody . . . .”
(Italics
added). Because Russell does not dispute
his postrelease ability to pay and Health and Safety section 13727.7
requires nothing more, we conclude the trial court did not err in imposing the
drug program fee.

E. Criminal
Assessment Fee

Finally, Russell contends that the trial court erred by
ordering him to pay a $564 criminal assessment fee without any evidence to
support the amount or his ability to pay.
The People argue that Russell waived these objections to the fee by
failing to raise them below. There is a
conflict in the authority regarding whether the forfeiture doctrine applies in
this context. (See People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [forfeiture
doctrine applied]; Pacheco, supra,
187 Cal.App.4th at pp. 1397, 1400 [forfeiture doctrine
inapplicable].) Our Supreme Court
recently heard argument on the issue. (>People v. McCullough (2011)
193 Cal.App.4th 864, review granted June 29, 2011, S192513.) At least until the Supreme Court rules on the
matter, we will consider the merits.

“Government Code sections 29550, 29550.1, and 29550.2
govern fees for booking or otherwise processing arrested persons into a county
jail. To some degree, they vary based on
the identity of the arresting agency.
Arrests made by a ‘city, special district, school district, community
college district, college, university or other local arresting agency’ are
governed by Government Code sections 29550, subdivision (a)(1) and
29550.1. Arrests made by a county are
governed by Government Code section 29550, subdivision (c) and those
made by ‘any governmental entity not specified in Section 29550 or
29550.1’ are governed by Government Code section 29550.2,
subdivision (a).” (>Pacheco, supra, 187 Cal.App.4th at
p. 1399, fn. 6.)

Here, the record indicates that the City of Richmond was
the arresting agency and that Russell was detained in county jail. Thus, Government Code sections 29550.1
and 29550, subdivision (a)(1), apply.
Government Code section 29550, subdivision (a)(1) provides, in
relevant part: “[A] county may impose a
fee upon a city, special district,
school district, community college district, college, or university for
reimbursement of county expenses incurred with respect to the booking or other
processing of persons arrested by an employee of that city, special district,
school district, community college district, college, or university, where the
arrested persons are brought to the county jail for booking or detention. The fee
imposed by a county pursuant to this section shall not exceed the actual
administrative costs . . . incurred in booking or otherwise
processing arrested persons. For the
2005-06 fiscal year and each fiscal year thereafter, the fee imposed by a
county pursuant to this subdivision shall not exceed one-half of the actual
administrative costs, including applicable overhead costs as permitted by
federal Circular A-87 standards, as defined in subdivision (d), incurred in
booking or otherwise processing arrested persons.” (Italics added.) Under Government Code section 29550.1, the
city may then recover from the arrested and convicted person the fee “imposed
by a county.”href="#_ftn5"
name="_ftnref5" title="">[5]

In
arguing that the amount of the criminal assessment fee is without support in
the record, Russell relies on Pacheco,
supra, 187 Cal.App.4th 1392. In
that case, a booking fee was imposed on the defendant as a condition of
probation. Although the record was
silent regarding the statutory support for imposition of the fee, the reviewing
court determined that it was imposed under either Government Code
section 29550 or Government Code section 29550.2. (Id.
at pp. 1399–1400.) The court
observed: “[A] prerequisite to the
imposition of a booking fee, whether
under Government Code section 29550, subdivision (c) or Government
Code section 29550.2, is a finding, whether express or implied, of the
defendant’s ability to pay. Such a
finding must be supported by substantial evidence. Further, a booking fee must not exceed the
actual administrative costs of booking, as further defined in the relevant
statutes. There is no evidence in this
record of either Pacheco’s ability to pay a booking fee, particularly as a
condition of probation, or of the actual administrative costs of his
booking. Accordingly, the $259.50
criminal justice administration or booking fee cannot stand.” (Pacheco,
at p. 1400, italics added.)

Pacheco is
distinguishable. Government Code
sections 29550 and 29550.2, which were at issue in Pacheco, include specific requirements regarding ability to pay and
individualized consideration of actual administrative costs.href="#_ftn6" name="_ftnref6" title="">[6] As is clear from its plain language,
Government Code section 29550.1 includes no requirement of individual
consideration of the actual administrative costs of booking or the defendant’s
ability to pay. In fact, at the time of
sentencing in this case, former subdivision (a)(2) of Government Code
section 29550 stated: “Any increase
in a fee charged pursuant to this section [for booking and processing arrested
persons] shall be adopted by a county prior to the beginning of its fiscal year
and may be adopted only after the county has provided each city [and other
specified entities] 45 days written notice of a public meeting held
pursuant to Section 54952.2 on the fee increase and the county has
conducted the public meeting.”
(Stats. 2006, ch. 78, § 2, p. 1548.) This provision suggested that the “actual
administrative costs” of receiving a person arrested by an employee of a city
and brought to the county jail for booking were set at a public meeting and did
not necessarily require individual consideration each time such a fee was
imposed upon a defendant, pursuant to Government Code section 29550.1.

In this case, the preprinted “Local Court Form –
Mandatory / SCR-210 Rev 10/3/11” provided for imposition of a “$564
CJA.” We can reasonably infer that, at
the time of judgment, the County of Contra Costa had set the criminal
assessment fee at $564. There is nothing
in the record to indicate that the amount of the standardized fee was not
$564. We will not presume otherwise. (Evid. Code, § 664 [presumption “that
official duty has been regularly performed”]; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘judgment
or order of the lower court is presumed
correct . . . and error must be affirmatively
shown’ ”].) Russell has not shown
any error in the imposition of the criminal assessment fee.

III. Disposition

The
attorney fees order is reversed. On
remand, the court may hold a hearing to determine, in accordance with the
applicable statutes, Russell’s ability to pay attorney fees before imposing
them. The judgment is further modified to
strike the prior prison term enhancements (§ 667.5, subd. (b)) and the
third prior conviction enhancement (§ 11370.2, subd. (a)). The judgment is accordingly reversed in part
and affirmed in part, as so modified.







_________________________

Bruiniers,
J.





We concur:





_________________________

Jones, P. J.





_________________________

Simons, J.

---

id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1]> Unless otherwise noted, all further
statutory references are to the Penal Code.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2]
Evidence Code section 1101,
subdivision (a), provides: “Except
as provided in this section and in Sections 1102, 1103, 1108, and 1109,
evidence of a person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion.”
But, Evidence Code section 1101, subdivision (b),
provides: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident, or whether a defendant in a prosecution for an unlawful sexual act
or attempted unlawful sexual act did not reasonably and in good faith believe
that the victim consented) other than his or her disposition to commit such an
act.”

Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.”