P. v. Hall

Filed 8/22/08 P. v. Hall CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Terrance Hall appeals from a judgment of conviction entered after he pleaded no contest to possession of cocaine base for sale (Health & Saf. Code,  11351.5.[1] He also admitted an enhancement allegation based on his prior drug-related convictions ( 11370.2, subd. (a)). The trial court sentenced defendant to seven years in state prison. On appeal, defendant contends: (1) the trial courts imposition of a fee under section 11372.7 exceeds the statutory maximum; and (2) there is insufficient evidence that defendant has the ability to pay this fee. For the reasons stated below, we modify the judgment. As modified, the judgment is affirmed.

I. Statement of Facts

In August 2005, police officers executed a search warrant at defendants residence. They found 26 baggies, which contained a total of 5.45 ounces of rock cocaine, $1,107.15 in cash, a digital scale, plastic gloves, sandwich baggies, and a razor blade. Defendant explained to the officers that he had buried about one and one-half kilograms of cocaine in his backyard prior to his previous incarceration. After he was released from prison, he dug up the cocaine and began giving it to two individuals who paid his bills. Defendant also stated that he was a professional bowler, who gambled on the side, and made $2,000 to $3,000 monthly.

II. Discussion

A. Drug Program Fee

Defendant contends that the trial courts imposition of a drug program fee of $165 exceeds the statutory maximum of $150, because he pleaded no contest to only one qualifying offense.

Section 11372.7, subdivision (a) states in relevant part that 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.

The criminal laboratory analysis fee ( 11372.5) is a mandatory fee in the amount of fifty dollars ($50) for each separate offense.

It appears that the probation officers report and the clerks minutes erred in the amounts imposed under sections 11372.7 and 11372.5. The probation officers report recommends that defendant pay a fine of $165 pursuant to section 11372.5 and a fine of $50 pursuant to section 11372.7. Consistent with the probation officers report, the clerks minutes attribute the $165 fee to section 11372.5 and the $50 fee to section 11372.7. The abstract of judgment also reflects an assessment of a $165 Lab Fee: per HS 11372.5(a) and a $50 Drug Program Fee per HS 11372.7(a) for each qualifying offense.

However, at the sentencing hearing, the trial court stated: And I think the two assessments under the Health and Safety Code of $165 and $65 are required. The trial court did not orally state which of these two fees was attributable to the criminal laboratory analysis fee ( 11372.5) and which was attributable to the drug program fee ( 11372.7).

We presume the trial court is aware of and follows the applicable law. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 (Martinez), and cases cited there.) Here, the trial court imposed two fees, $50 and $165. Since a mandatory fee of $50 is required by section 11372.5, we must presume that the trial court properly imposed a $50 assessment in satisfaction of this mandatory $50 fee. However, the trial courts assessment of a $165 fee is $15 in excess of the maximum $150 drug program fee under section 11372.7. Accordingly, the abstract of judgment must be modified to reflect a drug program fee of $150 under section 11372.7 and a criminal laboratory analysis fee of $50 under section 11372.5.[2]

Defendant also contends that there is no evidence of defendants ability to pay under section 11372.7, subdivision (b).

The trial court is required to determine whether the defendant has the ability to pay a drug program fee. ( 11372.7, subd. (b).) However, [n]o express finding as to a defendants ability or inability to pay is required. (Martinez, supra, 65 Cal.App.4th at p. 1516.)

In the present case, the probation report states that defendant was in possession of 26 baggies containing a total of 5.45 ounces of rock cocaine, thus indicating that he was able to obtain a large quantity of cocaine prior to his arrest. Defendant also had over $1,000 in cash at the time of his arrest. Defendant did not pay rent or the utilities, because he gave cocaine to Edward Williams, Ronald Croft, and Loretta Ingram, who paid these bills. Defendant stated that he was a professional bowler, who gambled on the side, and had no problem earning $2,000 to $3,000 per month. Defendant was 50 years old when he was sentenced, had attended college for one year, and reported that his health was good, though he had high blood pressure. Defendant also had three minor children for whom he did not pay child support, but he indicated that he always provides for them. In addition to the drug program fee, defendant was required to pay $1,470 in restitution, and other fees. The probation officer described defendants financial capability as [m]inimal, although it is anticipated that the defendant will be able to pay any fines, costs, or victim restitution imposed by the Court in this case. Based on defendants assets, income, and education, there was sufficient evidence to support the trial courts implied finding that defendant had the ability to pay a drug program fee of $150.

III. Disposition

The judgment is modified by imposing a $150 drug program fee pursuant to section 11372.7, a $50 laboratory analysis fee pursuant to section 11372.5, and any mandatory penalty assessments (Pen. Code, 1202.4, subd. (a)(2), 1464; Gov. Code,  76000) associated with the criminal laboratory analysis and drug program fees. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment showing the modifications and shall forward a certified copy of the same to the Department of Corrections.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

McAdams, J.

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[1] All further statutory references are to the Health & Safety Code unless otherwise stated.

[2] The abstract of judgment also states that mandatory applicable penalty assessments have been imposed. Thus, the judgment must also be modified to include mandatory penalty assessments (Pen. Code, 1202.4, subd. (a)(2), 1464; Gov. Code,  76000) associated with the criminal laboratory analysis and drug program fees. (People v.Turner (2002) 96 Cal.App.4th 1409, 1413.)