IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BARRY CHARLES CARTER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F00659)
The opinion of the court was delivered by: Butz , J.
P. v. Carter
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court admitted defendant Barry Charles Carter to Proposition 36 probation for five years after a jury found him guilty of possessing a controlled substance. Defendant appeals the imposition of certain fines for lack of a finding of an ability to pay, and for insufficient evidence to support the order. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
While on patrol, a police officer noticed defendant walking in the middle of the street, obstructing traffic. Defendant told the officer he was "trying to avoid getting bit by a pit bull," and denied having anything illegal in his possession. During a consensual search of defendant, the officer discovered approximately 0.22 grams of crack cocaine.
Defendant was charged with possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) A jury found him guilty as charged. The trial court granted defendant Proposition 36 probation for five years subject to specified terms and conditions, and imposed, as conditions of probation, various fees and fines, including a $270.17 main jail booking fee and a $51.34 main jail classification fee (Gov. Code, § 29550.2, subd. (a)),*fn1 a $70 AIDS education fine (Health & Saf. Code, § 11350, subd. (c))*fn2 and a $150 drug program fee (Health & Saf. Code, § 11372.7).*fn3
Defendant filed a timely notice of appeal.
Defendant contends the trial court erred when it imposed the main jail booking fee, the main jail classification fee, the drug program fee and the AIDS education fine by failing to find he had an ability to pay. He urges us not to infer an ability to pay, claiming the record shows just the opposite based on the fact that he "was the subject of a competency review after being found on the street walking in the middle of the road with crumbs of crack in his pocket"; that, at 51 years of age, he did not have a home and lived with his mother; and that he was last employed in 1997. He argues his claims are not forfeited because the absence of an ability to pay finding renders imposition of the disputed fees and fines unauthorized, and because his claim is one of sufficiency of the evidence, which is not forfeited for failure to object at trial under People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400 (Pacheco).
The People respond that Pacheco was wrongly decided and defendant forfeited his claims by failing to object at trial. In any event, they argue, the court made an implied finding of defendant's ability to pay.
As we shall explain, assuming defendant has not forfeited his claims on appeal, the record demonstrates that the court made an implicit finding of defendant's ability to pay, which is supported by substantial evidence.
Although a determination that a defendant has the ability to pay is a prerequisite for entry of an order for booking fees, classification fees, drug program fees and AIDS education fines (Gov. Code, § 29550.2, subd. (a); Health & Saf. Code, §§ 11350, subd. (c) & 11372.7), none of the provisions providing for those fees and fines require the trial court to make an express finding of an ability to pay. (See People v. Staley (1992) 10 Cal.App.4th 782, 785 (Staley) [Health & Saf. Code, § 11372.7, subd. (a) "does not require the trial court to make an express finding of ability to pay a drug program fee"].)
A trial court's finding of an ability to pay may be implied and will be upheld on appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 70-71, 76; People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920-921.)
In order to preserve a challenge to a fee or fine, a defendant must object in the trial court. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee].) As we have previously held, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay a fine. (People v. Crittle, supra, 154 Cal.App.4th at p. 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
Assuming without deciding that defendant has not forfeited his claims, they fail on the merits. The colloquy between defendant and the court at sentencing is evidence that the court made an implied finding of ability to pay. The court asked defendant, "[D]o you want to be heard on your behalf? Do you want to say something about what you think the sentence should be?" Defendant replied, "No, Your Honor," but then stated, "I ask the court for minimum fines." The court responded, "I intend to do that." A moment later, defendant was asked if there was anything else he would like to say, to which he responded, "No, Your Honor." Thereafter, the court granted formal probation and, referring to the probation report, stated the terms and conditions, including imposition of the fees and fines at issue as follows: "You must pay . . . [a] $150 drug program fee with the penalties and assessments as set forth in Condition 10, [a] $70 AIDS education fine, . . . [¶] . . . [a] $270 booking fee, [and a] $51 classification fee . . . . [¶] . . . Do you understand the conditions of probation, Mr. Carter?" Defendant replied, "Yes, I do, Your Honor." In the absence of evidence to the contrary, we presume that the trial court followed the law in performing its duty (Evid. Code, § 664) and that the requisite determination of ability to pay is implicit in the order to pay the fees and fines at issue. (See Staley, supra, 10 Cal.App.4th at p. 785.)
The record supports an implied finding of defendant's ability to pay. According to the probation report, defendant graduated from high school and attended Sacramento City College, where he completed 22 units of pre-law classes. Defendant was unemployed at the time of his arrest and had been since 1997. However, prior to that, he worked for the United States Postal Service from 1990 to 1992, and for the Campbell Soup Company from 1995 to 1997. He lives with his mother and has no financial responsibility other than his own living expenses. He similarly has no financial responsibility for any of his minor children, all of whom reside with their respective mothers. "Ability to pay does not necessarily require existing employment or cash on hand." (Staley, supra, 10 Cal.App.4th at p. 785.)
Moreover, other than liver problems, which require him to wear sunglasses, defendant denies any medical or psychological issues, and the record does not reflect any physical or mental ailment or condition that would otherwise prevent him from obtaining gainful employment. "The trial court had an opportunity to observe defendant, and we presume the court discerned no such disabling characteristics. If there were any such latent impediments, defendant would be in the best position to know of and develop that information. Since he failed to object to imposition of the [disputed fees and fines] or to request a hearing on his ability to pay, we assume there are no such impediments. Moreover, the court was entitled to infer that defendant's poor employment history was not due to functional causes but was the product of defendant's choice of lifestyle." (Staley, supra, 10 Cal.App.4th at p. 786.)
There is sufficient evidence to support the implied finding of defendant's ability to pay the disputed fees and fines.
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.