People v. Jefferson

Opinion

TURNER, P. J.— I. INTRODUCTION

Defendant, Jessica Lee Jefferson, appeals from a judgment of conviction of two counts of misdemeanor methamphetamine possession and one count of [662]attempted second degree robbery. (Health & Saf. Code, § 11377, subd. (a); Pen. Code,1 §§ 211, 664.) We affirm the judgment of conviction but reverse the 14-year sentence in its entirety. Upon remittitur issuance, the trial court is to resentence defendant.

In the published portion of this case, we discuss two sentencing issues. To begin with, we analyze why the Health and Safety Code section 11372.7, subdivision (a) drug program fee may not be suspended. We conclude that because defendant did not have the ability to pay the fine, it may not be imposed at all. In addition, we discuss why no Penal Code section 1202.5, subdivision (a) crime prevention fine may be imposed. We conclude that attempted robbery is not an enumerated offense in section 1202.5, subdivision (a). Thus, when defendant is resentenced, no drug program nor crime prevention fees may be imposed.

II. DISCUSSION

A. Defendant’s Fight with the Security Guards and Extensive Prior Record*

B. Defendant Must Be Resentenced

1.-5.*

6. The Drug Program Fee

The trial court orally imposed and suspended on inability to pay grounds a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) plus penalties and a surcharge. There is no statutory authority to suspend the drug program fee. The proper course of action is to decline to impose the fee rather than impose and suspend it. If the accused cannot afford to pay the [663]$150 drug program fee, it may not be imposed. (Health & Saf. Code, § 11372.7, subd. (a) [“shall pay a drug program fee” unless unable to pay]; Health & Saf. Code, § 11372.7, subd. (b); see People v. Woods (2010) 191 Cal.App.4th 269, 272 [119 Cal.Rptr.3d 328] [no statutory authority to stay court facilities or court security assessments].) Further, because defendant was convicted of two misdemeanor violations of Health and Safety Code section 11377, subdivision (a), she was potentially subject to two drug program fees. However, we presume the trial court found defendant did not have the ability to pay a second drug program fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 864 [120 Cal.Rptr.3d 195]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1518 [77 Cal.Rptr.2d 492].) Upon resentencing, no Health and Safety Code section 11372.7, subdivision (a) drug program fee may be imposed.