Opinion
C058186
3-3-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOHN MOLKO, Defendant and Appellant.
Not to be Published
Following his convictions for transportation of methamphetamine and possession of methamphetamine for sale, and true findings that he had sustained two prior felony drug convictions and served a prior prison term, defendant Robert John Molko was sentenced to an aggregate term of 11 years in state prison. In addition, the court imposed various fines and fees, including a $540 drug program fee under Health and Safety Code section 11372.7. Defendant appeals the imposition of this fee, claiming it was unauthorized as the court failed to determine his ability to pay and the record conclusively shows he does not have such an ability. We shall affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Because the substantive facts underlying the offenses are not relevant to the issues on appeal, they are only briefly recounted here.
Following a traffic stop of defendant, Oroville Police Detective Gil Zarate searched defendants car and found a brown zippered pouch in the front door pocket. Inside the pouch were three baggies containing a total of 12.33 grams of methamphetamine. According to Detective Zarate, a normal single dosage of methamphetamine is one-tenth of a gram, so the amount represented approximately 120 individual doses and had a street value of approximately $1,200.
The jury found defendant guilty of transportation of methamphetamine and possession of methamphetamine for sale. In bifurcated proceedings, the court found true allegations that defendant had suffered two prior felony drug convictions and served a prior prison term.
The probation report recommended a $540 drug program fee be imposed on each count. The report indicated defendant had obtained his GED. Defendant reported no current income or assets, but also had no debts. Prior to his incarceration on these charges, he had been employed for three years as a heavy equipment operator. Although he was currently unemployed, he expected to be employed again upon his release from custody.
Defendants health was reported as poor because he had hepatitis C. At the sentencing hearing, defense counsel requested a continuance to allow him to submit medical records to the court. Defendant had informed counsel he had been "diagnosed with a terminal condition that may result in a life span of about two years." The court stated it would assume the information was true but did not think that information would make a difference in sentencing.
Defendant was sentenced to the upper term of four years on the transportation charge and the upper term of three years on the possession for sale charge. This latter term was stayed pursuant to Penal Code section 654. Defendant was also sentenced to three years for each of the prior drug convictions and one year for the prior prison term, making the aggregate sentence 11 years.
The court also imposed $1,080 in drug program fees. Defense counsel suggested to the court, "If in fact Penal Code 654 is operative on counts 1 and 2, we should probably only be imposing or staying the other fine." The court agreed and indicated the drug program fee would be $540 rather than $1,080. After completing imposition of sentence, the court asked, "Anything else, counsel?" Both attorneys responded, "No."
DISCUSSION
Defendants sole contention on appeal is that the trial court imposed an unauthorized sentence by imposing the drug program fee in the absence of determining his ability to pay and because the record conclusively demonstrates an inability to pay. Defendant is incorrect.
The drug program fee codified in Health and Safety Code section 11372.7 provides that people convicted of drug offenses will be required to pay a drug program fee for each separate drug offense conviction. Subdivision (b) of that section provides: "The 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 persons financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee."
An unauthorized sentence is one that "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) Unauthorized sentences represent an exception to the general rule that claims not raised in the trial court are forfeited. (Ibid.) "Claims deemed [forfeited] on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.)
All that was required for the court to impose the fee as an authorized sentence was a finding that defendant had the ability to pay. This finding is a factual determination. For that reason, the fee is not an unauthorized sentence that could not have been imposed under any circumstances. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 (Valtakis).)
In this case, defendants complaint is actually that the drug program fee was imposed without a sufficient factual predicate. That is, that defendant did not have the ability to pay. Because this is a challenge to the factual underpinnings of the sentence, "[t]he unauthorized-sentence exception does not apply." (Valtakis, supra, 105 Cal.App.4th at p. 1072.) Since the sentence was authorized, defendant forfeited this argument by failing to object to the imposition of the drug program fee in the trial court. (Scott, supra, 9 Cal.4th at pp. 351-352; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Defendant was aware of the proposed fee in the probation report and had ample opportunity at the sentencing hearing to object to its imposition. In fact, counsel did object to the imposition of the fee on count 2.
Furthermore, defendants claim fails on the merits. Although the court must make a finding of ability to pay, the court is not required to make an express finding on the record. (People v. Staley (1992) 10 Cal.App.4th 782, 785 (Staley).) In the absence of evidence to the contrary, we presume that the trial court followed the law in performing its duty (Evid. Code, § 664) and the requisite determination of ability to pay is implicit in the order to pay the drug program fee (see Staley, supra, 10 Cal.App.4th at pp. 785-786.)
A finding of ability to pay does not require existing employment or available income. (Staley, supra, 10 Cal.App.4th at pp. 785-786.) Contrary to defendants claim, the record does not conclusively establish he did not have the ability to pay.
At the time of sentencing, defendant was 49 years old, had hepatitis C, and apparently had an undisclosed terminal illness. He had procured his GED. He was gainfully employed up until his arrest in this matter and expected to be employed again upon his release from custody. In addition, defendant was sentenced to a fairly lengthy prison term, where he would be earning wages. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 35.) There was no indication that defendants physical ailments had ever prevented him from gainful employment or would foreclose him from future employment.
Defendant claims on appeal this expectation was formed prior to his diagnosis of a terminal illness. However, there is no indication in the record that the diagnosis came in the one week between preparation of the probation report and the sentencing hearing.
If defendants physical condition was such that he would be disabled from working, he was in the best position to "know of and develop that information. Since he failed to object to imposition of the drug program fee or to request a hearing on his ability to pay, we assume there are no such impediments." (Staley, supra, 10 Cal.App.4th at p. 786.) The record in this case supports an implied determination of ability to pay. Accordingly, the trial court not did err in imposing the drug program fees.
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P. J.
ROBIE, J.