Filed 12/27/13 P. v. Baxter CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066090
         Plaintiff and Respondent,
                                                                               (Super. Ct. No. TF5938A)
                   v.

ROGER BAXTER, SR.,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Elaine Forrester, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna,
Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Poochigian, J. and Oakley, J.†
†
        Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
       Defendant Roger Baxter, Sr. pled no contest to possessing methamphetamine for
sale (Health & Saf. Code, § 11378)1 and admitted four prior convictions (§ 11370.2,
subd. (c)) in exchange for a 14-year term in the county jail. The trial court ordered him to
register as a narcotics offender and pay various fines and fees, including a $100 drug
program fee pursuant to section 11372.7, subdivision (b), as recommended in the
probation officer’s report.2
       Defendant contends on appeal that the drug program fee must be stricken because
(1) the trial court failed to assess whether he had the ability to pay and (2) there was
insufficient evidence he had the ability to pay. Citing People v. McCullough (2013) 56
Cal.4th 589 (McCullough), the People respond that defendant forfeited the claim by
failing to object at sentencing. We agree and will affirm.
                                       DISCUSSION
       Section 11372.7, subdivision (a) requires defendants convicted of certain drug
offenses to “pay a drug program fee in an amount not to exceed [$150] for each separate
offense.” (People v. Corrales (2013) 213 Cal.App.4th 696, 701 (Corrales).) The drug
program fee “is mandatory unless the defendant is unable to pay.” (People v. Clark
(1992) 7 Cal.App.4th 1041, 1050 (Clark).)
       Section 11372.7, subdivision (b) states that “[t]he 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


1      All statutory references are to the Health and Safety Code unless otherwise noted.
2      We note that the record does not contain an abstract of judgment. Upon the
People’s motion, we ordered that the record be augmented to include the abstract, but the
clerk of the superior court certified that an abstract was not filed in this case.



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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.”
       “The trial court is not required to make an express finding of ability to pay the
drug program fee. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1516; People v.
Staley (1992) 10 Cal.App.4th 782, 785.) Several appellate courts have presumed the trial
court determined the defendant had the ability to pay the drug program fee when the
record ‘does not suggest otherwise.’ (Clark, supra, 7 Cal.App.4th at p. 1050 [‘[s]ince the
record does not suggest otherwise, we presume the court found [the defendant] had the
ability to pay …’]; Corrales, supra, 213 Cal.App.4th at p. 702 [‘[w]e presume the trial
court determined [the] defendant was able to pay …’ the drug program fee].)” (People v.
Coleman (2013) 218 Cal.App.4th 353, 363.)
       In McCullough, supra, 56 Cal.4th 589, the Supreme Court recently 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.) 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 .…” (Id. at p. 599.)
       In support of its forfeiture analysis, McCullough cited People v. Martinez, supra,
65 Cal.App.4th 1511, which, like the present case, involved a drug program fee under
section 11372.7, subdivision (b). McCullough stated: “We conclude that defendant’s
ability to pay the booking fee here does not present a question of law in the same manner

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as does a finding of probable cause. Defendant may not ‘transform … a factual claim
into a legal one by asserting the record’s deficiency as a legal error.’ (People v. Forshay
(1995) 39 Cal.App.4th 686, 689-690.) By ‘failing to object on the basis of his [ability] to
pay,’ defendant forfeits both his claim of factual error and the dependent claim
challenging ‘the adequacy of the record on that point.’ (Id. at p. 690; see People v.
Martinez[, supra,] 65 Cal.App.4th [at p.] 1517 [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.)
       Here, we presume the trial court assessed defendant’s ability to pay because the
record does not suggest otherwise. Defendant cannot claim he was unaware of the fee
because it was recommended in the probation officer’s report. We conclude defendant
has forfeited this claim by failing to object in the trial court, where his concerns, such as
his age and length of sentence, should have been raised.
                                      DISPOSITION
       The judgment is affirmed.




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