People v. Lowney CA3

Filed 4/21/16 P. v. Lowney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079941

Plaintiff and Respondent, (Super. Ct. No. 15F02458)

v.

MICHAEL LOWNEY,

Defendant and Appellant.

Defendant Michael Lowney pleaded no contest to possession of a controlled substance for sale. As part of the sentence, the trial court imposed a drug program fee. On appeal, defendant contends the trial court did not make the required finding of ability to pay on the drug program fee and, if it did, there was not substantial evidence to support such a finding. Accordingly, he contends the fee must be reversed. We will strike the fee.

1

FACTUAL AND PROCEDURAL BACKGROUND

Following an August 2015 probation search of defendant’s home, law enforcement found 473 grams of methamphetamine, scales, and baggies. An amended complaint charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378)1 and alleged defendant had three prior convictions for possession of methamphetamine (§ 11370.2, subd. (c)).

Defendant pleaded no contest and admitted two of the three prior conviction allegations. The trial court dismissed the third prior conviction allegation. In accordance with the plea, the trial court sentenced defendant to an aggregate term of seven years four months in county jail, to be served as a split sentence.

Although there was no probation report, at the sentencing hearing the parties relied on the terms and conditions of probation, which included fines, fees, and assessments. The trial court indicated it intended to impose only the minimum fines and fees. Defense counsel objected to each of the fines and fees that required an ability to pay assessment and asked the court “to allow for [an] [ability] to pay evaluation, in that [defendant] will be in custody for a period of time, does not have any income, will not have income readily when he gets out, and I would request that those be stricken as it relates to his [ability] to pay because he doesn’t have one.” Trial counsel also explicitly requested the court conduct ability to pay hearings on both the probation supervision and the urinalysis testing fees. The trial court indicated, “With regard to the fines and fees, the gentleman is indigent, so it is my intent that he only be responsible for those fines and fees which the Court must impose that are mandatory. Those that are not mandatory or discretionary, I’ll order that those be stayed. And then, as to those that are mandatory, that only—that they be imposed only in the minimum amounts. [¶] . . . I’m imposing only the ones that