Filed 7/12/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A147740
v.
DAVID DONALD WEBB, (Contra Costa County
Super. Ct. No. 5-151712-7)
Defendant and Appellant.
Defendant David Donald Webb appeals from a judgment convicting him of,
among other things, driving a vehicle without consent, possession for sale of
methamphetamine, and identity theft. He contends his trial attorney provided ineffective
assistance by failing to move to dismiss the identity theft charge under the so-called
Williamson1 rule. Defendant also contends that the court erred in imposing penalty
assessments on fees imposed under the Health and Safety Code and in requiring him to
pay $500 in attorney fees. We reject defendant’s claim of ineffective assistance of
counsel but conclude that the matter must be remanded to recalculate the fees excluding
the penalty assessments and to determine defendant’s financial ability to pay attorney
fees.
Factual and Procedural History
Defendant was charged by amended information with driving or taking a vehicle
without consent after a prior conviction (Veh. Code, § 10851; Pen. Code,2 § 666.5
[count 1]), identity theft (§ 530.5, subd. (a) [count 2]), possession for sale of
1
In re Williamson (1954) 43 Cal.2d 651.
2
All statutory references are to the Penal Code unless otherwise noted.
1
methamphetamine (Health & Saf. Code, § 11378 [count 3]), transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a) [count 4]), and misdemeanor
receiving stolen property of a value not exceeding $950 (§ 496, subd. (a) [count 5]). The
information also alleged that defendant had two prior convictions for which he served a
prison term (§ 667.5, subd. (b)).
Because defendant does not challenge the sufficiency of the evidence in support of
his convictions, a detailed summary of the trial evidence is unnecessary. We set forth
only a summary of basic facts to provide context for the discussion that follows.
A police officer testified that on August 31, 2015, at approximately 3:00 p.m., he
received notification that a stolen vehicle was traveling in a nearby area. He drove to the
area where he located the stolen car parked with defendant sitting in the driver’s seat. The
officer observed defendant exit the car and walk behind a set of parked cars. When the
officer then detained defendant, he refused to identify himself but stated that he had an
identification card in his pants pocket. The officer retrieved a California driver’s license
from defendant’s pocket. Defendant “didn’t necessarily look like the same person” as
depicted on the license. The officer confronted defendant and asked for his real name and
defendant responded that his name is David Donald Webb.
After arresting defendant, the officer walked the route that defendant had taken
after exiting the stolen car and recovered from beside the parked cars a small box
containing 2.129 grams of methamphetamine and a small electronic scale. Video from the
citywide surveillance system showed defendant dropping the box out of his pocket as he
walked behind the parked cars. During defendant’s booking search following his arrest,
the officer found in defendant’s pocket six personal bank checks in the name of other
individuals, intermingled with other personal items. The officer also recovered from
defendant two cell phones, one of which contained text messages and emails relating to
drug transactions. Finally, a search of defendant’s home uncovered additional
methamphetamine and indicia of drug sales.
The jury found defendant guilty as charged and the court found the enhancement
allegation to be true. The court denied probation and imposed a five-year sentence
2
consisting of two years in county jail and three years of mandatory supervision. The court
imposed, among other fees, a $190 criminal laboratory analysis fee (Health & Saf. Code,
§ 11372.5), a $570 drug program fee (Health & Saf. Code, § 11372.7) and attorney fees
of $500.
Defendant timely filed a notice of appeal.
Discussion
1. The Williamson Rule
“Under the Williamson rule, if a general statute includes the same conduct as a
special statute, the court infers that the Legislature intended that conduct to be prosecuted
exclusively under the special statute. In effect, the special statute is interpreted as creating
an exception to the general statute for conduct that otherwise could be prosecuted under
either statute. [Citation.] . . . [¶] Absent some indication of legislative intent to the
contrary, the Williamson rule applies when (1) ‘each element of the general statute
corresponds to an element on the face of the special statute’ or (2) when ‘it appears from
the statutory context that a violation of the special statute will necessarily or commonly
result in a violation of the general statute.’ [Citation.] In its clearest application, the rule
is triggered when a violation of a provision of the special statute would inevitably
constitute a violation of the general statute. . . . [¶] On the other hand, if the more general
statute contains an element that is not contained in the special statute and that element
would not commonly occur in the context of a violation of the special statute, we do not
assume that the Legislature intended to preclude prosecution under the general statute. In
such situations, because the general statute contemplates more culpable conduct, it is
reasonable to infer that the Legislature intended to punish such conduct more severely.
. . . [¶] However, that the general statute contains an element not within the special statute
does not necessarily mean that the Williamson rule does not apply. ‘It is not correct to
assume that the [Williamson] rule is inapplicable whenever the general statute contains an
element not found within the four corners of the “special” law. Rather, the courts must
consider the context in which the statutes are placed. If it appears from the entire context
3
that a violation of the “special” statute will necessarily or commonly result in a violation
of the “general” statute, the Williamson rule may apply even though the elements of the
general statute are not mirrored on the face of the special statute.’ ” (People v. Murphy
(2011) 52 Cal.4th 81, 86-87.)
Defendant contends that his trial attorney provided ineffective assistance in failing
to move to dismiss the felony identity theft charge under section 530.5 on the ground that
the Williamson rule permitted prosecution for his conduct of only misdemeanors under
either section 148.9 (false representation of identity to a peace officer) or Vehicle Code
section 31 (false information to a police officer).3
The jury here was instructed pursuant to CALCRIM No. 2040 that to find
defendant guilty of identity theft in violation of section 530.5, subdivision (a), “the
People must prove that: [¶] 1. The defendant willfully obtained someone else’s personal
identifying information; [¶] 2. The defendant willfully used that information for an
unlawful purpose; [¶] AND [¶] 3. The defendant used the information without the
consent of the person whose identifying information he was using.” The jury was further
instructed that “An unlawful purpose includes . . . Falsely representing or identifying
one’s self as another person to a peace officer, upon a lawful detention, to evade the
proper identification of himself. [¶] or [¶] Giving information to a peace officer, who is
performing his duties under the vehicle code, when he knows the information is false.”
Defendant concedes that not every violation of section 148.9 or Vehicle Code section 31
results in a violation of section 530.5, subdivision (a) but argues that the rule applies in
3
Section 148.9, subdivision (a) provides that “Any person who falsely represents or
identifies himself or herself as another person or as a fictitious person to any peace
officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, upon a
lawful detention or arrest of the person, either to evade the process of the court, or to
evade the proper identification of the person by the investigating officer is guilty of a
misdemeanor.” Vehicle Code section 31 provides that “No person shall give, either orally
or in writing, information to a peace officer while in the performance of his duties under
the provisions of this code when such person knows that the information is false.”
4
this instance because the manner in which he violated section 148.9 and Vehicle Code
section 31 would commonly result in a violation of section 530.5. We disagree.
Providing false personal identification information to a police officer would, as
defendant argues, necessarily establish a violation of the two misdemeanor statutes. That
act would not be sufficient, however, to support a conviction for identity theft. To
establish a violation of section 530.5 the prosecution must also prove that defendant
obtained and used the personal identification information without the consent of the
person whose identifying information he was using. We see no basis to assume, as
defendant suggests, that false identification provided to a police officer is commonly
information willfully obtained from another person and used without consent.
As argued by the Attorney General, section 148.9, subdivision (a), and Vehicle
Code section 31 “do not even contemplate the existence of individual victims. These
statutes are merely designed to help law enforcement to locate a defendant if he or she
does not appear in court, and to ensure proper enforcement of the Vehicle Code.”
Section 530.5, in contrast, “is designed to protect the public from the uniquely disruptive
and pernicious effect of identity theft in the era of ubiquitous electronic transactions.”
Accordingly, the additional requirement that personal identification information be
obtained from another person and used without that person’s consent is significant,
strongly suggesting that the Legislature intended to punish one who uses false personal
identification information taken from another without consent more severely than one
who merely fibs to an officer about his or her name. Because a violation of section 148.9
would not necessarily or commonly result in a violation of section 530.5, the Williamson
rule does not apply and trial counsel did not render ineffective assistance by failing to
move to dismiss the identity theft charge on this ground.
2. Penalty Assessments on Health and Safety Code Fees
The trial court imposed a criminal laboratory analysis fee under Health and Safety
Code section 11372.5, subdivision (a) and a drug program fee under Health and Safety
5
Code section 11372.7, subdivision (a).4 The court also imposed various penalty
assessments on those fees, resulting in total criminal laboratory analysis fees of $190 and
drug program fees of $570. Defendant contends the court erred by applying the additional
penalty assessments to the Health and Safety Code fees.5
Penalty assessment are monetary charges which, “when applicable, inflate the total
sum imposed on the defendant by increasing certain charges by percentage increments.
All current penalty assessments are legislatively expressed as a certain dollar amount ‘for
every ten dollars ($10), or part of ($10),’ for the particular fine, penalty, or forfeiture that
is subject to the assessments. [Citation.] Thus, for example, if the base fine is $100 and
the penalty assessment is $2 for every $10 imposed, the penalty assessment increases the
defendant's base fine by $20, or 20 percent. If the same penalty assessment is imposed on
a base fine of $105, the penalty assessment is $22, and the percentage increase is slightly
more than 20 percent.” (Watts, supra, 2 Cal.App.5th at p. 228.) Penalty assessments
imposed under the Penal and Government Codes mandate additional assessments upon
every “fine, penalty, or forfeiture” imposed in a criminal case. (See, e.g., Pen. Code,
§ 1464, subd. (a)(1) [“[T]here shall be levied a state penalty in the amount of ten dollars
($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal offenses.”]; Gov. Code,
§ 76000, subd. (a)(1) [“[I]n each county there shall be levied an additional penalty in the
amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon
every fine, penalty, or forfeiture imposed and collected by the courts for all criminal
offenses.”].) Penalty assessments are not applicable to monetary charges, usually referred
4
Health and Safety Code section 11372.5, subdivision (a) provides for a “criminal
laboratory analysis fee” in the amount of $50 for each separate qualifying offense and
Health and Safety Code section 11372.7, subdivision (a) provides for a “drug program
fee” in an amount not to exceed $150 for each separate qualifying offense.
5
Although defendant did not object to the penalty assessments in the trial court, we may
consider his argument on appeal because the erroneous imposition of penalty assessments
is an unauthorized sentence that may be raised for the first time in this court. (People v.
Watts (2016) 2 Cal.App.5th 223, 227, fn. 4 (Watts).)
6
to as fees, intended to cover a particular governmental program or administrative cost.
(Watts, supra, at p. 228.)
Until recently, the law was settled that both the criminal laboratory analysis fee
and drug program fee are subject to imposition of assessments. In People v. Sierra (1995)
37 Cal.App.4th 1690, 1696 (Sierra), the court concluded that the drug program fee
imposed under section 11372.7 is a “fine and/or a penalty to which the penalty
assessment provisions of . . . section 1464 and Government Code section 76000 apply.”
The court reached this conclusion because section 11372.7 “defines the drug program fee
as an increase to the ‘total fine’ and later as a fine in addition ‘to any other penalty.’ ”
(Sierra, at p. 1695.) The court stated this was “[t]he only reasonable interpretation of
Health and Safety Code section 11372.7.” (Sierra, at p. 1696.)6
In People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 (Martinez), the court
extended the reasoning of Sierra to conclude the criminal laboratory analysis fee imposed
under section 11372.5 is also a fine and therefore subject to mandatory penalty
assessments. The court held: “Under the reasoning of Sierra, we conclude Health and
Safety Code section 11372.5 defines the criminal laboratory analysis fee as an increase to
the total fine and therefore is subject to penalty assessments.” (Martinez, supra, at
p. 1522, see also People v. Turner (2002) 96 Cal.App.4th 1409, 1414, fn. 3 [finding this
issue “settled” and reaffirming that the criminal laboratory analysis fee is a fine.].)7
6
Health and Safety Code section 11372.7, subdivision (a) reads: “Except as otherwise
provided in subdivision (b) or (e), each person who is convicted of a violation of this
chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars
($150) for each separate offense. The court shall increase the total fine, if necessary, to
include this increment, which shall be in addition to any other penalty prescribed by law.”
7
Health and Safety Code section 11372.5, subdivision (a) provides that every person who
is convicted of a qualifying offense “shall pay a criminal laboratory analysis fee in the
amount of fifty dollars ($50) for each separate offense. The court shall increase the total
fine necessary to include this increment. [¶] With respect to those offenses specified in
this subdivision for which a fine is not authorized by other provisions of law, the court
shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50),
which shall constitute the increment prescribed by this section and which shall be in
addition to any other penalty prescribed by law.”
7
However, in Watts, supra, 2 Cal.App.5th at page 231, the court concluded,
contrary to the above authority, that the criminal laboratory analysis fee is a fee rather
than a fine and, thus, is not subject to penalty assessments. In reaching this conclusion,
the Watts court rejected the Martinez courts’ interpretation of the first paragraph of
section 11372.5, subdivision (a). The court explained, “As to the statute’s reference to
‘total fine,’ we fail to perceive how the fact that the crime-lab fee increases the ‘total
fine’ necessarily means the fee is itself a ‘fine’ subject to penalty assessments. Nothing
about the statute’s use of the phrase ‘total fine’ is inconsistent with the conclusion that
the crime-lab fee simply gets added to the overall charge imposed on the defendant after
penalty assessments are calculated.” (Watts, supra, at p. 234.) The court also cited
legislative history that “bolsters the conclusion that the Legislature’s characterization of
the crime-lab fee as a ‘criminal laboratory analysis fee’ reflects an intent to treat the
charge as an administrative fee not subject to penalty assessments” and explained that the
fee was intended to defray administrative costs, not for retribution and deterrence. (Id. at
pp. 234-235, citing People v. Vega (2005) 130 Cal.App.4th 183, 195 (Vega) [“It is clear
to us the main purpose of Health and Safety Code section 11372.5 is not to exact
retribution against drug dealers or to deter drug dealing (given the amount of money
involved in drug trafficking a $50 fine would hardly be noticed) but rather to offset the
administrative cost of testing the purported drugs the defendant transported or possessed
for sale in order to secure his conviction.”].)
The Watts court acknowledged the “interpretive difficulty” posed by the second
paragraph of subdivision (a), which calls for imposition of “a fine in an amount not to
exceed fifty dollars ($50), which shall constitute the increment prescribed by this section
and which shall be in addition to any other penalty prescribed by law” in criminal cases
involving an offense “ ‘for which a fine is not authorized by other provisions of law.’ ”
(Watts, supra, 2 Cal.App.5th at p. 237.) The court concluded that under this provision,
“the crime-lab fee acts as a fine and is, in turn, subject to penalty assessments.” (Id. at
p. 235.) The court explained, however, that as there are at present no offenses for which a
fine is not authorized by other provisions of law, the “second paragraph of section
8
11372.5(a) has no current application and, in that sense, is surplusage” (id. at p. 236) and
should not, in any event, “control over the language in the first paragraph, which
currently applies to all covered offenses” (id. at p. 234).
Finally, the Watts court rejected the argument that the California Supreme Court’s
decision in People v. Talibdeen (2002) 27 Cal.4th 1151, 1153 compels the conclusion
that the levies are fines or penalties. In that case, the court held that penalty assessments
are “mandatory—and not discretionary—sentencing choices” and upheld the imposition
of penalty assessments on the section 11372.5 criminal laboratory analysis fee.
(Talibdeen, supra, at p. 1153 & fn. 2.) As the Watts court explained, however, “[t]he
defendant in Talibdeen never argued that the assessments were inapplicable, and the
Supreme Court never mentioned section 11372.5’s language. Instead, the court focused
on whether the statutes establishing the state and county penalties gave a sentencing court
discretion to waive those assessments, based on a provision allowing waiver ‘ “[i]n any
case where a person convicted of any offense, to which this section applies, is in prison
until the fine is satisfied.” ’ [Citations.] Thus, the court assumed, but never decided, that
sentencing courts are required to impose penalty assessments on the crime-lab fee.
Consequently, Talibdeen is not authority for the proposition that penalty assessments
apply to the fee.” (Watts, supra, 2 Cal.App.5th at p. 231.)
More recently, in People v. Moore (2017) 12 Cal.App.5th 558, 560, the court
rejected the reasoning in Watts and agreed with earlier decisions that “the levy imposed
under section 11372.5 constitutes a fine or penalty that is subject to penalty
assessments.”8 The court observed initially that “Section 11372.5 uses four different
terms to refer to the same levy. Subdivision (a) describes the levy as a ‘criminal
8
Still more recently, another court has also disagreed with Watts and held that the
laboratory analysis fee and the drug program fee are subject to penalty assessments.
(People v. Alford (2017) 12 Cal.App.5th 964.) This court placed heavy reliance on its
view that People v. Talibdeen, supra, 27 Cal.4th 1151 controls and that “assessments
(regardless of their identification as a fee or fine) ‘arising from [criminal] convictions are
generally considered punishment.’ ” (12 Cal.App.5th at pp. 975-976, citing People v.
Alford (2007) 42 Cal.4th 749, 757 (Alford).)
9
laboratory analysis fee,’ ‘a fine,’ an ‘increment,’ and a penalty to be imposed ‘in addition
to any other penalty prescribed by law.’ [Citations.] Thus, the labels used by
section 11372.5, by themselves, do not clearly answer whether the levy is a fee or a fine
or penalty.” (Moore, supra, pp. 563-564.) Nonetheless, the court reasoned that “the
language of the statute and the weight of case authority” leads to the conclusion the
criminal laboratory analysis fee constitutes a fine or penalty for purposes of penalty
assessments. The court reasoned that such an interpretation was necessary to avoid
rendering the second paragraph a “nullity” as the Watts court had done (Moore, supra,
p. 570) and that “[e]ven if the interplay of base and total fines is imprecisely drawn, the
Legislature’s redundant inclusion of language granting the trial court the ability to
increase the total fine in addition to any other penalty suffices to make section 11372.5
subject to penalty assessments” (Moore, supra, p. 571).
The court also rejected the conclusion in Watts that the statute serves an
administrative purpose. The court agreed that the determination of whether a charge is a
“fee” or “fine” can be made, in most cases, “ ‘on the basis of the purpose of the charge
imposed. Fines are imposed for retribution and deterrence; fees are imposed to defray
administrative costs.’ ” (People v. Moore, supra, 12 Cal.App.5th at p. 564.) Unlike the
courts in Watts and Vega, the court in Moore concluded that “Section 11372.5 appears to
have the dual purposes of a fee and a fine. Subdivision (b) of section 11372.5 provides
that the levy be deposited by the county treasurer in a criminalistics laboratories fund.
The county may thus ‘retain an amount of this money equal to its administrative cost
incurred pursuant to this section.’ [Citation.] Thus, subdivision (b) signals a fee purpose
to the levy. Subdivision (c) proceeds to signal a fine purpose to the statute where it
requires the county treasurer to ‘annually distribute those surplus funds’ from the
criminalistics laboratories fund ‘in accordance with the allocation scheme for distribution
of fines and forfeitures set forth in Section 11502.’ [Citation.] In other words, a portion of
the levy under subdivision (b) appears to serve the purpose of a fee and subdivision (c)
treats the remainder as a fine. Neither purpose predominates over the other.” (Moore,
supra, p. 566, fn. omitted.)
10
The clear conflict between these decisions presumably will require resolution by
our Supreme Court. Pending such clarification, we consider the reasoning in Watts more
persuasive. We are inclined to agree with the observation of the appellate division in
People v. Moore (2015) 236 Cal.App.4th Supp. 10, 16, that the attempt to resolve the
issue based on the plain language of the statutes is “a fool’s errand.” As that court
delicately expressed the matter, “The language used by the Legislature on that topic in
this series of code sections at work in fine and fee calculations is, to be polite, too
imprecise to permit any reasonable conclusion on that subject to be drawn.” (Ibid.) The
various statutory provisions in question unquestionably use the terms “fee,” “fine” and
“penalty” interchangeably and inconsistently, so that any attempt to discern the
Legislature’s intent from the precise wording of the statutes is futile. We agree with the
court in Vega (130 Cal.App.4th at p. 195) and the Court of Appeal in Moore (12
Cal.App.5th at p. 564) that whether a charge is a fee or a fine is normally determined by
the purpose for which the charge is imposed. In our view, this criterion is dispositive in
the absence of clear statutory language to the contrary.
Alford, supra, 42 Cal.4th 749 is instructive. In Alford, the court held that the court
security fee (§ 1465.8) is not punitive, in part because it had a rational connection to a
non-punitive purpose and because the amount of the fee is not dependent on the
seriousness of the criminal offense.9 The court reasoned that the purpose of the fee “was
not to punish but to ensure adequate funding for court security.” (See Alford, supra,
p. 758.) Importantly, unlike penalty assessments which also generate funds for court
services, the court security fee is a relative small flat fee and not a percentage of the total
fine imposed on a defendant. (See People v. High (2004) 119 Cal.App.4th 1192, 1197
[“[P]enalty assessment set forth in section 1464[] is a ‘garden variety’ fine calculated on
the size and severity of the base fine imposed.”].)
9
Although the issue before the court in Alford, supra, 42 Cal.4th 749 was whether
retroactive application of the fee violated state and federal prohibitions against ex post
facto laws, the analysis seems equally applicable in the present context.
11
With respect to the criminal laboratory analysis fee, we agree with the courts in
Watts and Vega that the fee serves a primarily administrative function. Health and Safety
Code section 11372.5, subdivision (b) expressly provides in part that “The county
treasurer shall maintain a criminalistics laboratories fund” into which the criminal
laboratory analysis fee shall be deposited and that the “county may retain an amount of
this money equal to its administrative cost incurred pursuant to this section. Moneys in
the criminalistics laboratories fund shall, except as otherwise provided in this section, be
used exclusively to fund (1) costs incurred by criminalistics laboratories providing
microscopic and chemical analyses for controlled substances, in connection with criminal
investigations, . . . (2) the purchase and maintenance of equipment for use by these
laboratories in performing the analyses; and (3) for continuing education, training, and
scientific development of forensic scientists regularly employed by these laboratories.”
Contrary to the decision in Moore, we do not believe that the statute serves a “dual
purpose” merely because it also provides for deposit of any residual funds in the state
General Fund—as is typically required of excess moneys in other public funds.
We reach a similar conclusion with regard to the drug program fee. Health and
Safety Code section 11372.7, subdivision (c) directs that funds collected in connection
with the drug program fee be deposited into a drug program fund which “shall be
allocated by the administrator of the county’s drug program to drug abuse programs in
the schools and the community, subject to the approval of the board of supervisors.”10
Funding community drug abuse prevention programs is a non-punitive, administrative
purpose.
10
Section 11372.7, subdivision (c)(2) requires that “A minimum of 33 percent of the fund
shall be allocated to primary prevention programs in the schools and the community.
Primary prevention programs developed and implemented under this article shall
emphasize cooperation in planning and program implementation among schools and
community drug abuse agencies, and shall demonstrate coordination through an
interagency agreement among county offices of education, school districts, and the
county drug program administrator.”
12
As in Alford, neither of the fees is tethered to the seriousness of defendant’s
criminal conduct. The criminal laboratory analysis fee is a fixed $50. The drug program
fee may not exceed $150 and the sliding scale is based not on severity of the offense but
on the defendant’s ability to pay. Neither fee is sufficiently great to serve as a deterrent.
(See Alford, supra, 42 Cal.4th at p. 759 [“It is inconceivable that defendant would have
decided not to commit his crime had he known in advance that this $20 fee would be
imposed.”].)
Because the criminal laboratory analysis fee and drug program fee are non-
punitive, the trial court erred by imposing penalty assessments on those fees.
3. Attorney Fees
Section 987.8 “establishes the means for a county to recover some or all of the
costs of defense expended on behalf of an indigent criminal defendant. [Citation.] Under
subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the
court concludes, after notice and an evidentiary hearing, that the defendant has ‘the
present ability . . . to pay all or a portion’ of the defense costs. [Citations.] If this finding
is made, ‘the court shall set the amount to be reimbursed and order the defendant to pay
the sum to the county in the manner in which the court believes reasonable and
compatible with the defendant’s financial ability.’ ” (People v. Verduzco (2012) 210
Cal.App.4th 1406, 1420.)
Here, the trial court ordered defendant to pay a $500 attorney fee. In response to
defendant’s request that the fees be waived based on his indigent status, the court
explained that attorney fees are “not one of the discretionary fines and fees, so the court
would not be willing to waive.” Although phrased as a request to “waive” the fees, trial
counsel’s objection must be understood as asserting an objection based on defendant’s
inability to pay attorney fees. On appeal, defendant clearly asserts that he is indigent and
contends that the trial court “was wrong that it did not have discretion not to impose the
attorney’s fees.”
13
The Attorney General argues that a trial court “has no authority to simply waive
attorney’s fees for a defendant with the ability to pay.” While that may be correct, the
court did not find that defendant has the ability to pay the attorney fees. Rather, the court
concluded that it was compelled to impose the fees on defendant, apparently without
regard to his ability to pay them. The probation report contains little information about
defendant’s ability to pay attorney fees, indicating that he is a 33 year old man without a
high school diploma who has spent the last 15 years of his life either detained or on
parole or probation. Since defendant’s ability to pay the fees appears questionable, to say
the least, we must remand the matter for a determination under section 987.8 of his
ability to pay attorney fees. (People v. Verduzco, supra, 210 Cal.App.4th 1406, 1420-
1421 [“If the attorney fees award is in error, remand is permissible for the purpose of
determining whether the defendant has the ability to pay attorney fees.”].)11
Disposition
The matter is remanded for recalculation of the criminal laboratory analysis and
drug program fees without the addition of penalty assessments and a determination of
defendant’s ability to pay attorney fees under section 987.8. The judgment is affirmed in
all other respects.
Pollak, J.
We concur:
McGuiness, P. J.
Siggins, J.
11
Although forfeited by his failure to object in the trial court (People v. Trujillo (2015)
60 Cal.4th 850, 858; People v. Aguilar (2015) 60 Cal.4th 862, 866), on remand,
defendant may also challenge, if appropriate, his ability to pay the drug program fee
under Health and Safety Code section 11372.7, subdivision (b).
14
Trial court: Contra Costa County Superior Court
Trial judge: Honorable Diana Becton
Counsel for plaintiff and respondent: Xavier Becerra, Attorney General,
Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney
General, Seth K. Schalit, Supervising Deputy
Attorney General, and Dorian Jung, Deputy
Attorney General, for Plaintiff and Respondent.
Counsel defendant and appellant: Alex Green
A147740
15