Filed 7/23/13 P. v. Padilla CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137049
v.
ANTHONY JOSEPH PADILLA, JR.,                                         (Lake County
                                                                     Super. Ct. No. CR930310)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Anthony Joseph Padilla, Jr. appeals from a judgment entered following his “open”
plea of no contest to one count of transportation of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)), and one count of driving on a revoked driver‟s license (Veh.
Code, § 14601.1, subd. (a)). As part of the negotiated plea, appellant also admitted two
prior convictions for possession of a controlled substance for sale (Health & Saf. Code,
§ 11370.2, subd. (c)), and admitted that he had served two prior prison terms, within the
meaning of Penal Code section 667.5, subdivision (b).
         The sole issue raised on appeal is his contention that the trial court erroneously
imposed a discretionary $600 aggregate drug program fee, pursuant to Health and Safety
Code section 11372.7, without finding that he had the ability to pay the fee. We affirm.




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                                             II.
                 FACTUAL AND PROCEDURAL BACKGROUNDS
       On August 21, 2012, a complaint was filed charging defendant with one count
each of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)),
possession of methamphetamine for sale (Health & Saf. Code, § 11378), misdemeanor
evading a police officer (Veh. Code, § 2800.1, subd. (a)), misdemeanor destruction of
evidence (Pen. Code, § 135), and misdemeanor driving on a revoked driver‟s license
(Veh. Code, § 14601.1, subd. (a)). Numerous special allegations were included in the
complaint, including the aforementioned allegations of prior convictions for possession
of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and the
allegations that he had served two prior prison terms, within the meaning of Penal Code
section 667.5, subdivision (b).
       After entering a plea of not guilty to all charges and denying all special
allegations, appellant entered into a negotiated disposition with the prosecution. Pursuant
to this agreement appellant agreed to change his plea to no contest the one count of
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one
count of driving on a revoked driver‟s license (Veh. Code, § 14601.1, subd. (a)).
Appellant also admitted both two prior convictions for possession of a controlled
substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and that he had served two
prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b).
Appellant understood that his plea was “open” with no promise being made as to the
sentence he would receive. While he hoped the court would grant him probation and
allow him to enter a residential drug treatment program, he understood he could receive a
total, aggregate state prison term of 12 years.
       Sentencing took place on October 23, 2012. At that time probation was denied,
and appellant was ordered to serve an aggregate state prison term of 12 years. Fines and
penalties were imposed as part of appellant‟s sentence. As is material to this appeal,
pursuant to Health and Safety Code section 11372.7, the court imposed a drug program
fee of $150, plus a penalty assessment of $450, for a total drug program fee of $600. At


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the time sentence was pronounced, no objections were made by appellant to any of the
elements of the sentence imposed, including the $600 drug program fee.
       For the first time on appeal, appellant contends that the trial court erred in
imposing the $600 drug program fee without finding that he had the ability to pay the
fine. The Attorney General argues that appellant forfeited the claim because he failed to
object to imposition of the fine in the trial court. Both parties pointed out in their
respective briefs on appeal that the issue of forfeiture in failing to object to penalties and
fees imposed at the time of sentencing based on no showing the defendant had the ability
to pay was then pending before the California Supreme Court in People v McCullough
(2013) 56 Cal.4th 589, review granted June 29, 2011, S192513 (McCullough).
                                              III.
                                       DISCUSSION
       In fact, our Supreme Court‟s opinion in McCullough, supra, 56 Cal.4th 589 was
filed on April 22, 2013. The court 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.) Thus, 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.)
       The court‟s forfeiture reasoning in McCullough was specifically made applicable
to other comparable fees and penalties imposed without objection, including drug
program fees. In fact, in the course of the court‟s analysis, it cited with approval People
v. Martinez (1998) 65 Cal.App.4th 1511, 1517, which held that a challenge to a court
order imposing a drug program fee under Penal Code section 11372.7, subdivision (b) for




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failing to make findings of the defendant‟s ability to pay was forfeited in the absence of
an objection in the trial court. (McCullough, supra, 56 Cal.4th at p. 597.)1
       Accordingly, we conclude that the issue was forfeited.
                                            IV.
                                     DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
HUMES, J.




       1
          In the course of the McCullough opinion the Supreme Court also disapproved
People v. Pacheco (2010) 187 Cal.App.4th 1392, the principal case relied on by appellant
in this appeal. (McCullough, supra, 56 Cal.4th at p. 599.)

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