People v. StaleyPeople v. Staley
Opinion
A person who is convicted of Health and Safety Code offenses involving controlled substances shall be ordered to pay a drug program fee of up to $100 for each separate offense if the trial court determines the person has the “ability to pay” the fee. (
We conclude that “ability to pay” a drug program fee does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person’s ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or hеr sentence is completed.
Facts
On January 21, 1991, undercover officers used an informant to make a controlled buy of methamphetamine from defendant at his hоme.
On the afternoon of February 21, 1991, undercover officers employed the same informant to make a second controlled buy of methamphetamine from
Case No. 21559 charged the February 21 sale of methamphetamine (
In a joint trial, a jury convicted defendant of all the charges. At sentencing, the court found defendant was not a fit subject for the California Rehabilitation Center (CRC) and sentenced him to a term of four years, eight months in state prison. The court also imposed a restitution fine of $500 for each case and ordered defendant to pay a laboratory analysis fee of $50 and a drug program fee of $100 for each offense.
On aрpeal, defendant contends the trial court erred in failing to give a unanimity instruction, abused its discretion in denying defendant’s request for a referral to CRC, and improperly imposed certain fees and fines without determining his ability to pay them.
In the published part of this opinion, we reject defendant’s last contention. In the unpublished portion, we find no merit in his remaining claims of error. Accordingly, we shall affirm the judgment.
Discussion
I, II *
III
Defendant contends the trial court erred in imposing laboratory analysis feеs, drug program fees and restitution fines without determining defendant’s ability to pay them.
The contention has no merit with respect to the laboratory analysis fees and restitution fines because the statutes authorizing imposition of laboratory
As to the drug program fees imposed by the court, Health and Safety Code
This statute does nоt require the trial court to make an express finding of ability to pay a drug program fee, and no such explicit finding was made in this case. Defendant simply argues that the record is devoid of any basis upon which such a determination may be implied. We disagree.
Ability to pay does not necessarily require existing employmеnt or cash on hand. For example, in a family law proceeding an award of child support may be based on the supporting spouse’s “ability to earn” аs distinguished from “actual income” when that spouse has engaged in a deliberate attempt to avoid financial family responsibilities by refusing to seek or aсcept gainful employment, or by deliberately not applying himself or herself to that person’s employment so as to intentionally depress income tо an artificial low, or by leaving employment to go into a lower paying job with the intent to avoid financial family responsibilities.
(Philbin
v.
Philbin
(1971)
In this case, defendant supported a $100 a day drug habit by selling methamphetamine. He had no other income and had not been employed since 1988 when he worked for four months at minimum wage. However, there is nothing in the record to suggest that defendant (who was 31 years old at the time of sentenсing) is physically, mentally or emotionally unable to find and maintain productive employment once his sentence is completed. The trial court had an opportunity to observe defendant, and we presume the court discerned no such disabling characteristics. If there were any such latent impediments, defеndant would be 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. Moreover, the court was entitled to infer that defendant’s poor employment history was not due to functional causes but was the product of defendant’s choice of lifestyle. In his statement to the probation officer, defendant repeatedly indicated that he intended to mend his ways and become a productive member of society. He expressed his plan to start employment with his father once he completes his sentence. In addition, he twice told the probation officer that defendant recognizes it is “time to pay his dues.”
Having made that pledge, it is ironic that defendant now seeks to evade the $300 in drug program fees he was ordered to pay. This amount is not unduly burdensome. Accepting the sincerity of defendant’s stated intention to mend his ways and to lead a productive life in the future, the trial court was entitled to conclude that defendаnt has the ability to satisfy this modest debt to society by fulfilling his goal of obtaining employment with his father once he completes his sentence. In other words, the record supports an implied determination of ability to pay. Hence, the trial court not did err in imposing the drug program fees.
The judgments are affirmed.
Davis, Acting P. J., and Nicholson, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 11, 1993. Mosk, J., and Arabian, J., were of the opinion that the petition should be granted.
Notes
See footnote, ante, page 782.