People v. Morales CA5

Filed 8/27/14 P. v. Morales CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, F066557

v. (Super. Ct. No. 1403616)

AMADO ALVAREZ MORALES, JR., OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Gregory M. Chappel, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Gomes, Acting P.J., Kane, J., and Detjen, J.

A jury convicted appellant, Amado Alvarez Morales, Jr., of possession of a controlled substance for sale (Health & Saf. Code, § 11351) and found true five prior prison term enhancements (Pen. Code, § 667.5, subd. (b))1 and allegations that Morales had two prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On appeal, Morales contends: (1) the evidence is insufficient to support the court’s finding that he had the ability to pay for his court-appointed attorney; and (2) the court failed to make a determination of his ability to pay the drug program fee it imposed. We find merit to Morales’s first contention. With respect to his second contention we find that the court did not order him to pay a drug program fee. We will also modify the judgment accordingly and affirm as modified. FACTS On June 9, 2009, members of the Modesto Narcotics Enforcement Team and the Modesto Police Department used a confidential informant to purchase a small quantity of heroin from Morales with a marked $20 bill. During a postarrest search of appellant, officers found syringes, methamphetamine pipes, and a bag containing wax bindles of a black tar substance. Morales admitted to the officers he was selling heroin. On January 10, 2013, the court sentenced Morales to an aggregate 13-year term, the upper term of four years doubled to eight years because of Morales’s strike convictions, and five one-year prior prison term enhancements. With respect to a drug program fee the court stated, “You are also required to pay a drug program fee [of] up to $150, depending on your ability to pay.” The court, however, did not actually order Morales to pay a drug program fee in any amount.