The People v. Nguyen CA6

Filed 9/25/13 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039081 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1227546)

v.

SANG VAN NGUYEN,

Defendant and Appellant.

STATEMENT OF THE CASE Defendant Sang Van Nguyen pleaded guilty to two counts of petty theft with a prior robbery conviction (Pen. Code, § 666, subd. (b)(1)), one count of false personation exposing the victim to liability (Pen. Code, § 529), one count of second degree burglary (Pen. Code, §§ 459/460, subd. (b)), and one count of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). Defendant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (b)(i)/1170.12 ). The trial court sentenced defendant to four years in prison and imposed various fines and fees, including a $150 drug program fee pursuant to Health and Safety Code section 11372.7. Defendant now appeals from the judgment of conviction, arguing that the drug program fee must be stricken because the trial court failed to expressly determine his ability to pay the fee. Defendant alternatively requests that we remand the matter to the trial court for a determination of his ability to pay the fee. As set forth below, we

conclude that an express finding regarding defendant’s ability to pay was not required, and that the trial court properly imposed the drug program fee.1 We accordingly will affirm. DISCUSSION2 Background The probation report recommended that the trial court order defendant to pay various fines and fees. One of the fees recommended by the probation report was a $150 drug program fee. Near the end of defendant’s sentencing hearing, the trial court imposed a $150 drug program fee pursuant to Health and Safety Code section 11372.7.3 Shortly thereafter, the trial court stated: “Although I think attorney’s fees are appropriate, I don’t think the defendant has the ability to pay them, and I will not order them.” The Trial Court Properly Imposed the Drug Program Fee Section 11372.7 states that “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 dollars ($150) for each separate offense.” (§ 11372.7, subd. (a)). Section 11372.7 further states that the trial court “shall determine whether or not the person . . . has the ability to pay a drug program fee,” and that “the person shall not be required to pay a drug program fee” if the trial court determines that the person is unable to pay the fee. (§ 11372.7, subd. (b).) When determining whether a person is able to pay a drug program fee, the