P. v. Padilla CA1/4

Filed 7/23/13 P. v. Padilla CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137049 v. ANTHONY JOSEPH PADILLA, JR., (Lake County Super. Ct. No. CR930310) Defendant and Appellant.

I. INTRODUCTION Anthony Joseph Padilla, Jr. appeals from a judgment entered following his “open” plea of no contest to one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one count of driving on a revoked driver‟s license (Veh. Code, § 14601.1, subd. (a)). As part of the negotiated plea, appellant also admitted two prior convictions for possession of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and admitted that he had served two prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). The sole issue raised on appeal is his contention that the trial court erroneously imposed a discretionary $600 aggregate drug program fee, pursuant to Health and Safety Code section 11372.7, without finding that he had the ability to pay the fee. We affirm.

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II. FACTUAL AND PROCEDURAL BACKGROUNDS On August 21, 2012, a complaint was filed charging defendant with one count each of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), misdemeanor evading a police officer (Veh. Code, § 2800.1, subd. (a)), misdemeanor destruction of evidence (Pen. Code, § 135), and misdemeanor driving on a revoked driver‟s license (Veh. Code, § 14601.1, subd. (a)). Numerous special allegations were included in the complaint, including the aforementioned allegations of prior convictions for possession of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and the allegations that he had served two prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). After entering a plea of not guilty to all charges and denying all special allegations, appellant entered into a negotiated disposition with the prosecution. Pursuant to this agreement appellant agreed to change his plea to no contest the one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one count of driving on a revoked driver‟s license (Veh. Code, § 14601.1, subd. (a)). Appellant also admitted both two prior convictions for possession of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and that he had served two prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). Appellant understood that his plea was “open” with no promise being made as to the sentence he would receive. While he hoped the court would grant him probation and allow him to enter a residential drug treatment program, he understood he could receive a total, aggregate state prison term of 12 years. Sentencing took place on October 23, 2012. At that time probation was denied, and appellant was ordered to serve an aggregate state prison term of 12 years. Fines and penalties were imposed as part of appellant‟s sentence. As is material to this appeal, pursuant to Health and Safety Code section 11372.7, the court imposed a drug program fee of $150, plus a penalty assessment of $450, for a total drug program fee of $600. At