THE PEOPLE v. LAWRENCE REED (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant challenges the propriety of the court facilities assessment (Gov.Code, § 70373) and court security fee (Pen.Code, § 1465.8) imposed in case number YA071104.   He also challenges the drug program fee (Health & Saf.Code, § 11372.7, subd. (a)) imposed in case number BA363782, as well as the requirement that he register as a narcotics offender (id, § 11590, subd. (a)).  We modify the judgment in both cases and affirm them as modified.

DISCUSSION

Court Security Fee and Court Facilities Assessment

Defendant contends that the trial court erred in imposing a $30 court security fee instead of a $20 fee, and that it imposed an unauthorized $30 court facilities assessment in case number YA071104.   We agree.

On December 4, 2008, defendant was placed on probation in case number YA071104.   Probation was revoked on March 11, 2010, and defendant was sentenced to state prison and ordered to pay a $30 court security fee and a $30 court facilities assessment.

Penal Code section 1465.8, subdivision (a)(1), requires the imposition of a court security fee “on every conviction for a criminal offense․”  This section became operative on August 17, 2003.   As of July 28, 2009, section 1465.8 was amended to increase the court security fee from $20 to $30.   As noted above, defendant was convicted in case number YA071104 on December 4, 2008.   Having been convicted before the section's amendment, he is not subject to the higher $30 fee but rather to the $20 fee in effect at the time of his conviction.  (People v. Alford (2007) 42 Cal.4th 749, 754.)

On January 1, 2009, Government Code section 70373 went into effect.   Subdivision (a)(1) provides in part:  “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense ․ in the amount of thirty dollars ($30) for each ․ felony․”  Because defendant was convicted in case number YA071104 on December 4, 2008, prior to Government Code section 70373 becoming operative, he is not subject to the $30 court facilities assessment.  (People v. Davis (2010) 185 Cal.App.4th 998, 1000, 1001;  People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5.)

Drug Program Fee

The trial court imposed a $150 drug program fee in case number BA363782.   Defendant contends that the fee should be stricken because the court did not inquire into his ability to pay.   The People request that the matter be remanded to the trial court to hold a hearing and to make a ruling on defendant's ability to pay the drug program fee.   We decline the People's request for the following reasons and strike the fee.

Under Health and Safety Code section 11372.7, subdivision (a), a trial court is required to impose a drug program fee in an amount up to $150 provided it finds the defendant has the ability to pay the fee.  (Id., subd. (b);  People v. Martinez (1998) 65 Cal.App.4th 1511, 1516;  People v. Clark (1992) 7 Cal.App.4th 1041, 1050.)

There is no evidence in the record that supports a finding of defendant's ability to pay.²  The probation report dated November 6, 2009 indicates that defendant was not interviewed to determine his employment or ability to pay.   The report states that defendant owed the probation department $5,185.   While the court's finding of defendant's present ability to pay need not be express, but may be implied, the finding of ability to pay must be supported by substantial evidence.  (Cf. People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)   Here, there is no evidence to support an implied finding that defendant had the ability to pay the $150 drug program fee.

We have the authority to remand the matter to the trial court to hold a hearing and to make a ruling on defendant's ability to pay the drug program fee.  (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1064-1069.)   There is nothing in the record here to suggest there is a realistic probability the court would determine defendant has the ability to pay the $150 drug program fee.   We find that this is not an appropriate case for remand, and judicial economy compels us to strike the order imposing the $150 drug program fee.

Advisement of Narcotics Offender Registration Requirement

Defendant contends the Health and Safety Code section 11590, subdivision (a), registration order should be stricken because he was not advised that he would be required to register as a narcotics offender before his plea was accepted.   We find the contention has been forfeited.

In People v. McClellan (1993) 6 Cal.4th 367, the defendant pled guilty to assault with intent to commit rape.  (Id. at p. 371.)   Prior to accepting the defendant's plea, the trial court failed to advise him that upon conviction, he would be required to register as a sex offender pursuant to Penal Code section 290.  (McClellan, supra, at pp. 371-372.)   The Supreme Court held that the defendant was precluded from raising the claim on appeal because he did not object to the registration requirement at the time of sentencing.  (McClellan, supra, at pp. 376-377.)

Defendant attempts to distinguish McClellan on the ground that, in McClellan, the failure to advise the defendant was by the trial judge while here, it was by the prosecutor.   We find this distinction to be of no significance.

While there is no question that the trial court should have made sure that defendant was informed of his responsibility to register as a narcotics offender pursuant to Health and Safety section 11590, subdivision (a), defendant did not object to the registration requirement at the time of sentencing.   The record reveals that in the information, defendant was given notice that “Conviction of this offense will require you to register pursuant to Health and Safety Code section 11590.   Failure to do so is a crime pursuant to Health and Safety Code section 11594.”   The probation officer's report also indicated that if conviction occurs on the instant charge, defendant would be required to register as a drug offender pursuant to Health and Safety Code section 11590.   Inasmuch as defendant was notified of the registration requirement, albeit not at the time his plea was taken, and he failed to object to it at the time of sentencing, his challenge to the requirement has been forfeited.  (People v. McClellan, supra, 6 Cal.4th at p. 377.)

DISPOSITION

In case number YA071104, the judgment is modified by reducing the $30 court security fee to $20 and striking the $30 court facilities assessment.   In case number BA363782, the $150 drug program fee is stricken.   The judgments are affirmed in all other respects.   The clerk of the trial court is directed to prepare a corrected abstract of judgment in both cases and to forward them to the Department of Corrections and Rehabilitation.

We concur:

FOOTNOTES

FN1. We liberally construe defendant's notice of appeal to be taken from the judgments entered on March 11, 2010, in case numbers BA363782 and YA071104, even though the notice does not specifically refer to case number YA071104.  (People v. Bhakta (2008) 162 Cal.App.4th 973, 977, fn. 1.).  FN1. We liberally construe defendant's notice of appeal to be taken from the judgments entered on March 11, 2010, in case numbers BA363782 and YA071104, even though the notice does not specifically refer to case number YA071104.  (People v. Bhakta (2008) 162 Cal.App.4th 973, 977, fn. 1.)

FN2. On our own motion, we have augmented the record on appeal to include the superior court file.  (Cal. Rules of Court, rule 8.155(a)(1)(A).).  FN2. On our own motion, we have augmented the record on appeal to include the superior court file.  (Cal. Rules of Court, rule 8.155(a)(1)(A).)

PERLUSS, P. J. ZELON, J.