APPEAL from the Superior Court of Riverside County. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. Super.Ct.Nos. RIF121204 & RIF113043
The opinion of the court was delivered by: Richli J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Defendant and appellant Cynthia Ann Pendergist appeals from the trial court's order denying her motion to vacate certain fines and fees. Defendant's sole contention on appeal is that the trial court abused its discretion in denying her motion to vacate the challenged fines and fees imposed in case Nos. RIF113043 and RIF121204 based on her inability to pay. Because we find the trial court failed to properly determine defendant's ability to pay the challenged fines and fees, we will remand the matter for that purpose.
On October 27, 2003, defendant entered into a plea bargain pursuant to which she pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. RIF 113043. In exchange, the remaining allegation of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) was dismissed, and the trial court granted defendant probation for a period of three years pursuant to Proposition 36 on various terms and conditions, including paying various fees and fines. Specifically, Defendant was ordered to pay a drug laboratory fee of $158 (Health & Saf. Code, § 11372.5); a drug program fee of $158 (Health & Saf. Code, § 11372.7); a restitution fee of $200 (Pen. Code, § 1202.4, subd. (b)); a court security fee of $20; a booking fee of $110 (Gov. Code, § 29550); a cost of probation fee of $252 (Pen. Code, § 1203.1); and an outpatient substance abuse program fee of $1,440. Defendant accepted the terms and conditions of her probation.
Defendant subsequently violated probation several times in case No. RIF113043. Each time, her probation was reinstated on modified terms and conditions. On August 17, 2004, after defendant admitted to violating probation again, her Proposition 36 probation was terminated, and she was ordered to serve 120 days in a weekend program.
On January 6, 2005, defendant pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. RIF121204. Defendant also admitted to violating probation in case No. RIF113043. In return, the remaining allegations were dismissed, and defendant was placed on probation for a period of three years in the new matter on various terms and conditions, including serving 180 days in county jail on a work release program. In the new matter, defendant was also ordered to pay a drug laboratory fee of $158; a drug program fee of $158; a restitution fee of $200; a court security fee of $20; a booking fee of $110; a cost of probation fee of $252; and court-appointed attorney fees in the amount of $96.
In August 2006, a petition alleging violation of probation based on defendant's failure to pay fines in the amount of $933 was filed in case No. RIF113043. On March 28, 2007, defendant's probation was extended to September 28, 2007, and a hearing regarding a payment plan was set for May 11, 2007. Defendant's probation was extended numerous times thereafter.
On December 29, 2008, defendant admitting violating her probation by failing to pay her required fees and fines in both cases. At that time, her counsel informed the court that defendant had submitted paperwork from her oncologist and that "[t]he reason she stopped paying her fines is because she has been diagnosed with cancer and she has been going through radiation treatment." Defendant's probation was once again reinstated and extended to December 29, 2009.
On December 29, 2009, petitions alleging violation of probation based on defendant's failure to pay her fines and ...