(Super. Ct. No. 11NCR08777)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Lisa Maelynn Jared appeals following her convictions for transporting a controlled substance and misdemeanor counts of being under the influence of a controlled substance and possessing a hypodermic needle and syringe. She contends: (1) the trial court erred in imposing a $200 fine plus penalty assessments without articulating the statutory basis of the fine as required by People v. High (2004) 119 Cal.App.4th 1192; (2) the record does not support a finding that she had the ability to pay the drug program fee; and (3) the jury should have been instructed on the law of transportation of controlled substances as defense counsel requested, despite the fact that such an instruction is contrary to California Supreme Court authority. We find defendant forfeited her claim as to the drug program fee. Also, we are bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 to follow decisions of our Supreme Court and find no instructional error. We agree, however, the matter must be remanded to the trial court to comply with the requirements of High.
Because of the nature of the claims on appeal, a detailed recitation of the substantive facts underlying this appeal is not necessary.
In January 2011, defendant was stopped as she was walking down the street by a patrol officer who suspected she was under the influence of a stimulant. She was discovered to have two used syringes in her pockets and her urine tested positive for benzodiazepine, marijuana, and methamphetamine. In August 2011, defendant was walking in a parking lot and was discovered to be in possession of psilocybin mushrooms in her backpack.
Defendant was charged with transporting a controlled substance, psilocybin, misdemeanor being under the influence of a controlled substance, and misdemeanor possession of a hypodermic needle and syringe. Following a jury trial, she was convicted on all three counts. Imposition of sentence was suspended and defendant was granted Proposition 36 probation. She was ordered to pay a restitution fund fine of $240 and a $240 probation revocation fee stayed upon successful completion of probation. She was also ordered to pay a court security fee of $120, a court facilities fee of $90, a drug program fee of $100, a crime lab fee of $50, a probation supervision fee of $25 per month, a drug testing fee of $15 per month, and an administrative fee of $35.
Lastly, she was ordered to "pay a fine of $200 plus penalty assessments." Defense counsel agreed to "waive articulation" of the statutory basis of the fine and fees. The minute order also reflects the imposition of a $200 fine plus penalty assessments with no indication of the statutory bases for this fine.
Basis For Imposition Of Fine And Penalty ...