Filed 2/11/14 P. v. Patterson CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136548
v.
TONYA R. PATTERSON,                                                  (Lake County
                                                                     Super. Ct. Nos. CR927200, CR929872)
         Defendant and Appellant.

         Appellant Tonya R. Patterson was convicted, pursuant to a plea agreement, of
possession for sale of a controlled substance and failure to appear. On appeal, she
contends there was insufficient evidence of her ability to pay to support imposition of
criminal justice administration fees and a drug program fee. In the alternative, she
contends the failure of defense counsel to object to these fees based on her inability to
pay constituted ineffective assistance of counsel. We conclude appellant forfeited these
claims due to defense counsel’s failure to object in the trial court. We also conclude,
however, that counsel was ineffective for failing to object to imposition of the drug
program fee in the trial court. We shall therefore reverse and remand the matter for a
determination of appellant’s ability to pay that fee, but shall otherwise affirm the
judgment.
                                      PROCEDURAL BACKGROUND
         On January 30, 2012, appellant pleaded no contest, in Case No. CR927200, to
possession for sale of a controlled substance, methamphetamine. (Health & Saf. Code,


                                                             1
§ 11378.)1 On August 13, 2012, appellant pleaded no contest, in Case No. CR929872, to
failure to appear. (Pen. Code, § 1320.5.)2
       On September 6, 2012, the trial court sentenced appellant to three years, eight
months in state prison. It also imposed various fines and fees.
       On September 12, 2012, appellant filed a notice of appeal.
                                       DISCUSSION
           I. Trial Court’s Imposition of the Criminal Justice Administration Fees
                                 and the Drug Program Fee
       Appellant contends there was insufficient evidence of her ability to pay to support
imposition of criminal justice administration fees and a drug program fee.
                                A. Trial Court Background
       At sentencing, the trial court imposed various fines and fees, including a criminal
justice administration fee (booking fee) of $30 in each of her two cases, pursuant to
Government Code section 29550, subdivision (c), and a drug program fee of $150
together with a penalty assessment of $450 in her drug possession case, pursuant to
section 11372.7, subdivision (a). Defense counsel did not object to imposition of either
of these fees.
                                     B. Legal Analysis
       Appellant now challenges the trial court’s imposition of the booking fee (Gov.
Code, § 29550), and the drug program fee (§ 11372.7).
       Government Code section 29550, subdivision (c), provides: “Any county whose
officer or agent arrests a person is entitled to recover from the arrested person a criminal
justice administration fee for administrative costs it incurs in conjunction with the arrest
if the person is convicted of any criminal offense related to the arrest, whether or not it is
the offense for which the person was originally booked. The fee which the county is

       1
         All further statutory references are to the Health and Safety Code unless
otherwise indicated.
       2
         The specific facts underlying appellant’s convictions are not relevant to the
issues raised on appeal.


                                              2
entitled to recover pursuant to this subdivision shall not exceed the actual administrative
costs, including applicable overhead costs incurred in booking or otherwise processing
arrested persons.”
       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.”
       After appellant filed her opening brief in this case, the California Supreme Court
issued its decision in People v. McCullough (2013) 56 Cal.4th 589, 590–591
(McCullough), in which it rejected the defendant’s contention that he was entitled to
challenge, for the first time on appeal, the sufficiency of the evidence supporting the trial
court’s order to pay a jail booking fee similar to the one at issue here. (See Gov. Code,
§ 29550.2, subd. (a) [judgment must contain an order for convicted person to pay
booking fee “[i]f the person has the ability to pay”].) As the court explained, “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.” (McCullough, at p. 597.)




                                              3
       Appellant now concedes that, in light of McCullough, she has forfeited her
booking fee claim due to failure to object in the trial court.3 She does argue, however,
that she still is entitled to challenge the sufficiency of the evidence to impose the drug
program fee because the McCullough court did not address whether failure to object to
imposition of that fee in the trial court forfeits the issue on appeal. (See § 11327.7,
subd. (b).)
       Appellant further asserts that the forfeiture issue is controlled, not by McCullough,
but by People v. Butler (2003) 31 Cal.4th 1119, 1125 (Butler), in which the trial court
ordered HIV testing, under Penal Code section 1202.1, as a condition of probation, but
did not make an express finding of probable cause, which the statute required. Our
Supreme Court found that, even though such a testing order is based partly on a factual
finding, “because the terms of the statute condition imposition on the existence of
probable cause, the appellate court can sustain the order only if it finds evidentiary
support, which it can do simply from examining the record.” (Butler, at p. 1127.) Hence,
because the question was primarily one of law, the forfeiture rule did not apply to a
challenge to the HIV testing order. (Ibid.)4


       3
          Appellant nevertheless asks us to address the booking fee issue because we must
address the question of her ability to pay with respect to the drug program fee in any case.
(See text, post, for a discussion of appellant’s right to challenge the drug program fee on
appeal.) Appellant acknowledges that, unlike Government Code section 29550.2, the
statute addressed in McCullough, Government Code section 29550 contains no explicit
ability to pay provision except for defendants who are placed on probation. (See
§ 29550, subd. (d)(2).) Given that appellant has forfeited this issue on appeal, we need
not address whether section 29550, subdivision (c), contains an implicit ability to pay
requirement, in light of what appellant describes as “[c]omplicated legislative intent and
equal protection questions [that] permeate the issue of reconciling” several similar
Government Code sections related to imposition booking fees.
        4
          In McCullough, supra, 56 Cal.4th 589, 596, the court distinguished Butler,
explaining that, unlike the HIV testing order at issue there, imposition of a booking fee
does not raise “similar statutory or constitutional concerns.” Appellant maintains that,
like the HIV testing requirement in Butler, a challenge to the drug program fee is not
forfeited due to a failure to object because “[a]pplication of the general forfeiture rule to
the ability-to-pay determination for a drug program fee would conflict with [the]

                                               4
       We do not agree with appellant that this case is controlled by Butler. Instead, we
find that, as with the booking fee in McCullough, the court’s imposition of the drug
program fee here did not require resolution of a question of law but, instead, was
“confined to factual determinations.” (McCullough, supra, 56 Cal.4th at p. 597.)
       This conclusion does not, however, end the discussion. As appellant
acknowledges, McCullough did not resolve whether imposition of fees other than the
booking fee at issue there may be challenged on appeal despite a failure to object in the
trial court. The court in McCullough twice refers to section 11372.7. First, after holding
the booking fee challenge forfeited, it cited, with apparent approval, People v. Martinez
(1998) 65 Cal.App.4th 1511, 1517, including the following parenthetical description:
“[analyzing Health & Saf. Code, § 11372.7, subd. (b), and concluding challenge to the
court’s order forfeited largely because ‘factual issues come into play in determining
whether a defendant has the ability to pay’ the otherwise mandatory drug program fee].”
(McCullough, supra, 56 Cal.4th at p. 597.)
       The McCullough court again referred to section 11372.7 during its review of
“other statutes where the Legislature has similarly required a court to determine if a
defendant is able to pay a fee before the court may impose it” to support its conclusion
that a challenge to the sufficiency of the evidence of a booking fee is forfeited by a
failure to object. (McCullough, supra, 56 Cal.4th at pp. 598–599.) The court stated: “In
contrast to the booking fee statutes, many of these other statutes provide procedural
requirements or guidelines for the ability-to-pay determination. Certain fee payment
statutes require defendants to be apprised of their right to a hearing on ability to pay and
afford them other procedural safeguards. (See, e.g., Pen. Code, §§ 987.8, 1203.1b
[payment of cost of probation supervision].) Additionally, Government Code
section 27755 lists extensive ‘procedural rights’ that must attend ‘any hearing required by
law to determine a person’s ability to pay court-related costs.’ (Id., § 27755, subd. (a);



legislative intent [¶] . . . to avoid [adding] additional financial burdens to the challenges
faced by a recovering addict.”


                                               5
see Welf. & Inst. Code, § 903.45, subd. (b) [listing qualifying court-related costs].)”
(McCullough, at p. 598.)
       The court then listed “[o]ther fee payment statutes [that] merely identify factors a
court should consider in deciding whether to impose fees. In many of these instances, the
Legislature has articulated a fairly uniform set of factors that affect a defendant’s ability
to pay the fees in question: the defendant’s present financial position; his or her
reasonably likely future financial position; and fines and fees already imposed. (See, e.g.,
Pen. Code, §§ 1208.2 [work furlough and electronic home detention program participant
fees], 3006 [parolee’s payment of certain treatment costs associated with parole terms],
646.94 [parolee’s payment of costs associated with specialized parole supervision
program]; see also Pen. Code, § 987.8, subd. (g)(2)(A)–(D) [articulating similar factors
for courts to consider at a noticed hearing on whether a defendant should pay all or part
of the cost of court-appointed counsel].) Even Health and Safety Code section 11372.7,
which mandates that individuals convicted under the California Uniform Controlled
Substances Act (Health & Saf. Code, § 11000 et seq.) pay a drug program fee ‘[i]f the
court determines the person has the ability to pay,’ provides more guidance to courts in
imposing fees than does Government Code section 29550.2: a court shall impose a drug
program fee if it ‘is reasonable and compatible with the person’s financial ability,’
including the financial impact of ‘any fine imposed upon that person and any amount that
person has been ordered to pay in restitution.’ (Health & Saf. Code, § 11372.7,
subd. (b).)” (McCullough, supra, 56 Cal.4th at pp. 598–599, italics added.)
       Finally, the court stated: “We note these statutes because they indicate that the
Legislature considers the financial burden of the booking fee to be de minimis and has
interposed no procedural safeguards or guidelines for its imposition. In this context, the
rationale for forfeiture is particularly strong. [Citations.]” (McCullough, supra,
56 Cal.4th at p. 599.)
       The McCullough court’s two references to section 11372.7—the first with
apparent approval and the second intended to contrast that section with the booking fee at
issue there—leave us without a definitive answer to whether the forfeiture rule


                                              6
enunciated in McCullough is applicable the drug program fee at issue in this case.
Nonetheless, based on the court’s analysis, we believe that, for purposes of the forfeiture
rule, the drug program fee described in section 11372.7 falls closer on the continuum to a
booking fee than to other fee statutes discussed in McCullough that mandate a hearing
and other procedural safeguards before a court may order a defendant to pay the fee.
(See McCullough, supra, 56 Cal.4th at p. 598.) Hence, we conclude the Supreme Court’s
reasoning applies to the drug program fee imposed here, and appellant’s sufficiency of
the evidence claim is forfeited due to her failure to object in the trial court.
                           II. Ineffective Assistance of Counsel
       Appellant next contends that, if she forfeited her challenge to the sufficiency of the
evidence of her ability to pay the booking and drug program fees on appeal due to
counsel’s failure to object in the trial court, she received ineffective assistance of counsel.
       To prove ineffective assistance of counsel, a defendant must show that “counsel’s
representation fell below an objective standard of reasonableness [¶] . . . under prevailing
professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland);
accord, People v. Ledesma (2006) 39 Cal.4th 641, 745–746.) In addition, the defendant
must affirmatively establish prejudice by showing “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland, at p. 694; People v. Ledesma, at p. 746.)
       “ ‘ “[If] the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the claim on
appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
       We first address appellant’s ineffective assistance of counsel claim as to the drug
program fee. Section 11372.7, subdivision (b), required the trial court to determine
whether appellant had the ability to pay the drug program fee before it could “set the


                                               7
amount to be paid . . . in a manner that the court believe[d was] reasonable and
compatible with [appellant’s] financial ability.” In making its determination, the court
was required to take into account the amount of any other fines imposed upon her and
any amount she had been ordered to pay in restitution. (See § 11372.7, subd. (b).)
       The record reflects that, at sentencing, the trial court ordered appellant to pay the
following amounts in Case No. CR92700: a restitution fine of $600 (Pen. Code,
§ 1202.4, subd. (b)); a lab fee of $50 plus a penalty assessment of $150 (§ 11372.5); a
court operations assessment of $40 (Pen. Code, § 1465.8); a criminal conviction
assessment of $40 (Gov. Code, § 70373); and a booking fee of $30 (Gov. Code, § 29550,
subd. (c)), in addition to the drug program fee of $150, with its penalty assessment of
$450 (§ 11372.7). In Case No. CR929872, the court ordered appellant to pay a restitution
fine of $240 (Pen. Code, § 1202.4, subd. (b)); a court operations assessment of $40 (Pen.
Code, § 1465.8); a criminal conviction assessment of $40 (Gov. Code, § 70373); and a
booking fee of $30 (Gov. Code, § 29550, subd. (c)). The total amount of the fines and
fees imposed, beyond the $600 drug program fee and penalty assessment, was $1,260.
The trial court was required to consider this amount in determining whether to impose the
drug program fee. (See § 11372.7, subd. (b).)
       As to appellant’s financial resources, which the trial court was also required to
consider (see § 11372.7, subd. (b)), the probation report reflects that appellant, who was
40 years old, had received a GED in 1989 and had last been employed in 2008. She had
no current income source and relied on loans from her father to make ends meet. She
also had a vehicle worth $1,500. She had a nine-month-old baby and was three months
pregnant with another child. 5 At the sentencing hearing, the court discussed appellant’s
circumstances, noting “that there are some serious potential problems with the child that
she’s now bearing and she’s going to need some medical help to deal with those


       5
         The probation report is ambiguous regarding whether the probation officer
recommended that the court impose fees. Although the probation officer recommended
imposition of each fee in one part of the report, he subsequently recommended that no
fees be imposed.


                                              8
problems that the child may have . . . probably before birth and after birth for some
period of time. [¶] I’m also looking at somebody who has had a long term problem with
drugs, and long term I mean many, many years.” The court further observed that
appellant had suffered five prior felony convictions, all of which appeared to be related in
some way to her addiction to drugs.
       At the conclusion of the sentencing hearing, the court imposed, inter alia, the $150
drug program fee and the $450 penalty assessment without any discussion of appellant’s
ability to pay. Neither the prosecution nor defense counsel addressed the ability to pay
question either.
       Even assuming the trial court understood and exercised its discretion to determine
appellant’s ability to pay the drug program fee and penalty assessment, in addition to the
many other fines and fees also imposed (see People v. Coleman (2013) 218 Cal.App.4th
353, 363 (Coleman) [trial court “is not required to make an express finding of ability to
pay the drug program fee”]; People v. Mosley (1997) 53 Cal.App.4th 489, 496 [“trial
court is presumed to have been aware of and followed the applicable law”]), we conclude
that defense counsel was ineffective for failing to object to imposition of the fee on the
ground that there was nothing in the record to support a finding that appellant had an
ability to pay. (See § 11372.7, subd. (b); cf. Coleman, at pp. 353, 363–364 [after finding
that trial court had improperly delegated ability to pay question to probation department,
Division Five of this District found insufficient evidence to support an implied finding by
trial court that defendant had ability to pay drug program fee, where probation report did
not recommend payment of fee and defendant had no assets, suffered from numerous
health problems, and had no employment prospects].)
       First, in the particular circumstances of this case, there “ ‘ “simply could be no
satisfactory explanation” ’ ” for counsel’s silence. (Mendoza Tello, supra, 15 Cal.4th at
p. 266.) Appellant was a long-term drug addict and felon with no income and minimal
assets, who, when she was sentenced to three years, eight months in prison, already had
one baby and was pregnant with another child who had serious medical issues.



                                              9
       Respondent blithely asserts that counsel might not have objected because he found
it likely that appellant had the ability pay these “relatively modest” fees “based on wages
earned in prison. Or, defense counsel may have known facts outside the record that
would have supported an ability-to-pay finding.” Given appellant’s extremely
challenging circumstances, as set forth ante, we do not believe counsel could have
reasonably assumed that she had the ability to pay the not insignificant amount of $600,
in addition to the many other required fines and fees, through prison work or other
unknown income sources not reflected in the record.
       Because we are unable to discern any tactical reason for counsel’s failure to object
to imposition of the drug program fee, appellant has satisfied the first requirement for
demonstrating ineffective assistance of counsel: that “counsel’s representation fell below
an objective standard of reasonableness [¶] . . . under prevailing professional norms.”
(Strickland, supra, 466 U.S. at p. 688.)
       Second, as to prejudice, we conclude, in light of the dearth of evidence in the
record regarding appellant’s ability to pay, there is a reasonable probability that, had
counsel objected to imposition of the drug program fee on that ground, the court would
have found appellant unable to pay the fee and would not have imposed it. (See
Strickland, supra, 466 U.S. at p. 694.)
       Accordingly, because appellant has demonstrated ineffective assistance of counsel,
the drug program fee must be reversed and the matter remanded to the trial court. (Cf.
Coleman, supra, 218 Cal.App.4th at p. 364 [remanding to trial court for hearing on
ability to pay]; People v. Corrales (2013) 213 Cal.App.4th 696, 702 [same].)
       Regarding the booking fees, even assuming subdivision (c) of Government Code
section 29550 contains an implicit ability to pay requirement (compare Gov. Code, §§
29550, subd. (d)(2) & 29550.2, subd. (a)), we do not believe that defense counsel was
ineffective for failing to object to the two $30 booking fees imposed under that section,
given the relatively small amount of those fees. Nonetheless, upon remand, the trial court
may also reconsider whether imposition of those fees is appropriate in light of all of the
circumstances.


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                                      DISPOSITION
       The section 11372.7 drug program fee is reversed. The case is remanded to the
trial court for a determination of appellant’s ability to pay the drug program fee, together
with the penalty, in light of appellant’s financial circumstances and obligations. In all
other respects, the judgment is affirmed.




                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.




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