Opinion
H036316
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE DIAZ GUTIERREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. WF00932)
Defendant Jorge Diaz Gutierrez appeals from a judgment of conviction entered after a jury found him guilty of possession of cocaine for sale (Health & Saf. Code, § 11351). In a bifurcated proceeding, the jury also found true the allegation that defendant had suffered a prior conviction for possession of cocaine for sale (§ 11370.2, subd. (a)). The trial court sentenced defendant to state prison for four years. On appeal, defendant contends: (1) the $190 AIDS fine (§ 11350, subd. (c)) must be stricken from the clerk's minutes and the abstract of judgment; and (2) there was insufficient evidence that defendant had the ability to pay a drug program fee (§ 11372.7). We will modify the judgment. As modified, the judgment is affirmed.
All further statutory references are to the Health and Safety Code unless otherwise noted.
I. Statement of Facts
On November 26, 2009, Officer Sergio Banuelos and several other officers executed a search warrant at defendant's residence. When Officer Banuelos told defendant that he was looking for cocaine, defendant led him into the master bedroom and pointed to a jacket on a coat rack. The officer searched the jacket and found 11.59 grams of cocaine. He then found a small digital scale in another jacket on the coat rack. Defendant told the officers that he did not have any cutting agents, but he commonly used them. Defendant, who had $160 in $20 denominations, also told them that he had been selling cocaine for three months and had made a profit of $600 to $700 each month.
Officer Skip Prigge testified that he arrested defendant for transportation and possession of cocaine for sale in 2004. When the officer made a traffic stop, defendant exited the car and attempted to dispose of a package containing 20.1 grams of cocaine. Defendant also had $768, consisting of "a lot of $20 bills." When defendant's residence was searched at that time, Officer Prigge found a cutting agent and $6,000 in cash.
According to Officer Prigge, defendant possessed the cocaine for sale in the present case. He based his opinion on defendant's prior offense, the quantity of cocaine, the digital scale, the cash in his possession, his unemployment, and his confession.
II. Discussion
A. $190 AIDS Fine
Defendant contends, and the Attorney General concedes, that the minute order and the abstract of judgment must be modified to strike the $190 AIDS fine (§ 11350, subd. (c)).
The minute order from the sentencing hearing and the abstract of judgment include a $190 AIDS fine. However, the trial court did not impose this fine at sentencing.
Section 11350, subdivision (c) states: "Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision." (Italics added.)
The use of the word "may" rather than "shall" in section 11350, subdivision (c) indicates that this fine is permissive, not mandatory. (§ 16; Montgomery v. Superior Court (1975) 46 Cal.App.3d 657, 666-667.) Since the imposition of the fine was discretionary, the trial court was required to impose this fine at the sentencing hearing. When the trial court's oral pronouncement of judgment conflicts with the clerk's minutes or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) Accordingly, the AIDS fine must be stricken from the November 18, 2010 minute order and the abstract of judgment.
B. Drug Program Fee
Defendant next contends that there was insufficient evidence that he had the ability to pay a $150 drug program fee (§ 11372.7).
The abstract ofjudgment lists a drug program fee of $190.
The Attorney General argues that this claim has been forfeited. However, the California Supreme Court has granted review of the case upon which she relies. (People v. McCullough (2010) 193 Cal.App.4th 864, review granted June 29, 2011, S192513.) We find the analogous case of People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco) to be persuasive. In Pacheco, the defendant argued that there was insufficient evidence to support a finding that he had the ability to pay a criminal justice administration fee under Government Code section 29550, subdivision (c) or Government Code section 29550.2, a probation fee under Penal Code section 1203.1b, and attorney's fees under Penal Code section 987.8. (Pacheco, at p. 1397.) This court held that claims which challenged the sufficiency of the evidence did not require an objection at the sentencing hearing in order to preserve them on appeal. (Ibid.) Similarly, here, defendant has not forfeited his sufficiency of the evidence claim.
Section 11372.7, subdivision (a) provides in relevant part: "Except as otherwise provided in subdivision (b) . . . , each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty ($150) for each separate offense." Subdivision (b) states in relevant part: "The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. . . . In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee." (§ 11372.7, subds. (a) & (b).)
The trial court is not required to make an express finding that a defendant has the ability to pay a drug program fee. (People v. Staley (1992) 10 Cal.App.4th 782, 785 (Staley).) Absent evidence to the contrary, this court presumes that the trial court followed the law and performed its duty under Evidence Code section 664, and that the requisite determination of defendant's ability to pay is implicit in the trial court's order. (Staley, at p. 785.)
In determining whether there was sufficient evidence to support the trial court's implicit finding, Staley, supra, 10 Cal.App.4th 782 is instructive. In Staley, the trial court sentenced the defendant to four years and eight months in prison, and imposed a restitution fine of $1,000, a laboratory analysis fee of $50, and a drug program fee of $200. (Id. at p. 784.) Staley rejected the defendant's argument that there was insufficient evidence that he had the ability to pay the drug program fee, noting that "[a]bility to pay does not necessarily require existing employment or cash on hand." (Id. at pp. 785-786.) In Staley, the 31-year-old defendant planned to obtain employment with his father after his release from prison, and there was no evidence that the defendant was physically, mentally or emotionally unable to obtain this employment. (Id. at p. 786.) In contrast to Staley, here, defendant is much older, has no employment prospects, and has physical limitations. He is a 47-year-old undocumented immigrant with a sixth-grade education and three minor children. He has no income or assets and a loan of $300. At the time of his arrest, he had been unemployed for three to four months, and his most recent employment involved being "on call" to make flower arrangements. Though his employment history included working in construction and on an apple farm, defendant "suffers from back pains." Thus, there was insufficient evidence to support the trial court's implied finding of his ability to pay the drug program fee.
The Attorney General contends that defendant would be able to pay this fee out of wages that he receives while in prison. However, there is no evidence that the California Department of Corrections and Rehabilitation will make a job available to defendant. And even assuming that a job would be made available to him, there is also no evidence of the rate of pay and whether it would be sufficient to satisfy the mandatory restitution fine of $800, the court security fee of $30, the court facilities fee of $30, and the laboratory fee of $190. Where the record is silent regarding factors affecting a defendant's ability to pay, we cannot assume that there was evidence which would have supported the trial court's implicit finding.
The minute order of the sentencing hearing and the abstract of judgment state that the trial court imposed a restitution fine under Penal Code section 1202.4, subdivision (b) in the amount of $1,200 and a stayed parole revocation fine under Penal Code section 1202.45 in the same amount. However, the trial court orally imposed these fines in the amount of $800. Since the trial court's oral pronouncement controls (Mitchell, supra, 26 Cal.4th at p. 185), we will modify the minute order and the abstract of judgment.
The Attorney General also notes that defendant had a scale that cost about $175 and some large gold coins at the time of his arrest. First, there is no indication in the record that defendant still had the scale at the time of sentencing or what its value would have been. Second, there is no evidence of the value of the gold coins. Thus, this evidence does not support the trial court's ability-to-pay finding.
III. Disposition
The November 18, 2010 minute order must be corrected to strike the $190 AIDS fine. This minute order must also be corrected to reflect that the restitution fine pursuant to Penal Code section 1202.4, subdivision (b) is $800 and the fine pursuant to Penal Code section 1202.45 is $800.
The abstract of judgment is amended to strike the $190 AIDS fine and the drug program fee of $190, and to reflect that the fines imposed pursuant to Penal Code section 1202.4, subdivision (b) and Penal Code section 1202.45 are $800. The trial court shall prepare an amended abstract of judgment and forward a certified copy of the abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
Mihara, Acting P. J. WE CONCUR: Duffy, J. Walsh, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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