People v. Staley

Opinion

SCOTLAND, J.

A person who is convicted of Health and Safety Code offenses involving controlled substances shall be ordered to pay a drug program fee of up to $100 for each separate offense if the trial court determines the person has the “ability to pay” the fee. (Health & Saf. Code, § 11372.7.)

We conclude that “ability to pay” a drug program fee does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person’s

ability to earn

where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed.

Facts

On January 21, 1991, undercover officers used an informant to make a controlled buy of methamphetamine from defendant at his home.

On the afternoon of February 21, 1991, undercover officers employed the same informant to make a second controlled buy of methamphetamine from

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defendant at his house. That evening, officers executed a search warrant at defendant’s home and seized two packages of methamphetamine totalling .27 grams, a triple beam scale with powder residue, packaging material, and syringes. The packages of methamphetamine were found in a box with some empty bindles. In the opinion of the officers, the methamphetamine was possessed for sale.

Case No. 21559 charged the February 21 sale of methamphetamine (Health & Saf. Code, § 11379). Case No. 21561 charged the January 21 sale of methamphetamine and the two offenses committed on the evening of February 21—possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of syringes (Bus. & Prof. Code, § 4149).

In a joint trial, a jury convicted defendant of all the charges. At sentencing, the court found defendant was not a fit subject for the California Rehabilitation Center (CRC) and sentenced him to a term of four years, eight months in state prison. The court also imposed a restitution fine of $500 for each case and ordered defendant to pay a laboratory analysis fee of $50 and a drug program fee of $100 for each offense.