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The People v. Barry Charles Carter

July 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BARRY CHARLES CARTER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F00659)

The opinion of the court was delivered by: Butz , J.

P. v. Carter

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DISCUSSION

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 ...


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