People v. Baxter CA5

California Court of Appeal Dec 27, 2013 No. F066090Unpublished

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Holding. A defendant forfeits a challenge to the trial court's imposition of a drug program fee based on an alleged lack of ability to pay if the defendant fails to object to the fee in the trial court.

Issues

Whether a defendant forfeits a claim regarding the trial court's failure to assess ability to pay a drug program fee by failing to object at sentencing.
Whether there was sufficient evidence to support the trial court's finding of ability to pay a drug program fee.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Citing People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the People respond that defendant forfeited the claim by failing to object at sentencing. We agree and will affirm.”

“We conclude defendant has forfeited this claim by failing to object in the trial court, where his concerns, such as his age and length of sentence, should have been raised.”

Filed 12/27/13 P. v. Baxter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066090 Plaintiff and Respondent, (Super. Ct. No. TF5938A) v.

ROGER BAXTER, SR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Oakley, J.† † Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant Roger Baxter, Sr. pled no contest to possessing methamphetamine for sale (Health & Saf. Code, § 11378)1 and admitted four prior convictions (§ 11370.2, subd. (c)) in exchange for a 14-year term in the county jail. The trial court ordered him to register as a narcotics offender and pay various fines and fees, including a $100 drug program fee pursuant to section 11372.7, subdivision (b), as recommended in the probation officer’s report.2 Defendant contends on appeal that the drug program fee must be stricken because (1) the trial court failed to assess whether he had the ability to pay and (2) there was insufficient evidence he had the ability to pay. Citing People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the People respond that defendant forfeited the claim by failing to object at sentencing. We agree and will affirm. DISCUSSION Section 11372.7, subdivision (a) requires defendants convicted of certain drug offenses to “pay a drug program fee in an amount not to exceed [$150] for each separate offense.” (People v. Corrales (2013) 213 Cal.App.4th 696, 701 (Corrales).) The drug program fee “is mandatory unless the defendant is unable to pay.” (People v. Clark (1992) 7 Cal.App.4th 1041, 1050 (Clark).) Section 11372.7, subdivision (b) states that “[t]he 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. If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person’s financial ability. In

People v. Baxter CA5

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