Filed 11/26/13 P. v. Mendoza 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C072048
Plaintiff and Respondent, (Super. Ct. No. NCR83340)
v.
IGNACIO MORFIN MENDOZA,
Defendant and Appellant.
Sentenced to state prison pursuant to a plea bargain, defendant Ignacio Morfin
Mendoza contends that the drug program fee imposed by the trial court must be stricken
because there is no evidence he can pay it. The People reply that the contention is
forfeited for failure to raise it below. Our Supreme Court has now resolved this issue
against defendant. (People v. McCullough (2013) 56 Cal.4th 589 (McCullough).) We
shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with selling methamphetamine (counts I, II;
Health & Saf. Code, § 11379, subd. (a)) and marijuana (count III; Health & Saf. Code,
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§ 11360, subd. (a).) It was alleged as to all counts that defendant had two strikes (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)).
Defendant thereafter pleaded guilty to count I and admitted the strikes in return for
dismissal of the remaining counts and the prior prison term allegation, as well as the
charges in a trailing case. According to the police report, which was stipulated to contain
a factual basis for the plea, on October 6, 2011, a confidential informant gave defendant
$40 and received 0.4 gram of methamphetamine; later in the day the informant gave
defendant another $40 and received 0.7 gram of methamphetamine.
At sentencing, the trial court struck one strike and sentenced defendant to a state
prison term of eight years (four years, the upper term, on count I, doubled for the
remaining strike). The court also imposed various fines and fees, including $100
pursuant to Health and Safety Code section 11372.7, subdivision (a). Defendant did not
object to that fine.
DISCUSSION
Relying on People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 (Pacheco),
defendant contends the drug program fee must be stricken, despite his failure to object to
the fee, because the trial court did not find that he had the ability to pay it as required by
Health and Safety Code section 11372.7, subdivision (b), and the record contains no
evidence to support such a finding.1 Defendant acknowledges that this court held to the
contrary in People v. McCullough (2011) 193 Cal.App.4th 864, 867-871, review granted
June 29, 2011, S192513 (jail booking fee), reasoning that when a defendant fails to object
1 Defendant also cites People v. Nilsen (1988) 199 Cal.App.3d 344, 347 and People v.
Kozden (1974) 36 Cal.App.3d 918, 920. Those decisions are inapposite because the
defendants’ abilities to pay the fines or fees in question were litigated in the trial court.
(Nilsen, supra, at pp. 347-350; Kozden, supra, at pp. 920-921.)
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to the imposition of a fine or fee at sentencing, any claim of error, including a claim of
insufficient evidence of ability to pay, is forfeited on appeal.
In McCullough, supra, 56 Cal.4th at pages 599-600, the Supreme Court affirmed
our decision and disapproved Pacheco, supra, 187 Cal.App.4th 1392 to the extent it held
otherwise. The court held that the forfeiture rule of People v. Scott (1994) 9 Cal.4th 331
and People v. Welch (1993) 5 Cal.4th 228 applies to the failure to challenge any fee
imposed at sentencing under a statute which does not specify procedural requirements or
guidelines to determine a defendant’s ability to pay. (McCullough, supra, at pp. 594,
598-599.) Health and Safety Code section 11372.7, like the jail booking fee at issue in
McCullough, does not specify such procedural requirements or guidelines.
McCullough, supra, 56 Cal.4th 589 compels the conclusion that defendant’s
challenge to the drug program fee is forfeited.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
MURRAY , J.
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