Filed 12/18/13 P. v. Garcia CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

RONALD ALLAN GARCIA, 

Defendant and Appellant. 

 H039092 

 (Santa Clara County 

 Super. Ct. No. C1223717) 

 Defendant Ronald Allan Garcia pleaded no contest to possession of marijuana for 

sale (Health & Saf. Code, § 11359), three counts of possession of a dirk or dagger (Pen. 

Code, § 21310), possession of burglary tools (Pen. Code, § 466), possession of controlled 

substance paraphernalia (Health & Saf. Code, § 11364.1), and false representation of his 

name to a peace officer (Pen. Code, § 148.9). The sentencing court imposed a 32-month 

prison term in accord with a plea agreement, plus several fees and penalty assessments, 

including drug program fees under Health and Safety Code section 11372.7. That section 

requires the sentencing court to determine whether a defendant has the ability to pay drug 

program fees before imposing them. The court made no explicit finding of defendant’s 

ability to pay the fees. Defendant, however, lodged no objection to the trial court’s 

imposition of the fees. 
2 

 On appeal, defendant challenges the drug program fees even though he had not 

objected to them in the trial court. He claims the evidence was insufficient to show his 

ability to pay the fees. Defendant further contends the minutes and abstract of judgment 

incorrectly state the amounts of various fees and penalty assessments. 

 Because defendant did not object to the imposition of drug program fees in the 

trial court, he did not preserve his claim on appeal that the evidence was insufficient to 

show his ability to pay them. However, we order the minutes and abstract of judgment 

corrected to state the proper amounts of fees and penalty assessments as reflected in the 

record of the sentencing hearing. 

I. FACTUAL AND PROCEDURAL BACKGROUND

 In January 2012, a San José police officer stopped defendant in a high crime area 

suffering from a recent increase in thefts, robberies, and burglaries. Defendant, wearing 

dark clothes, a black beanie and two backpacks, was sitting on a bicycle in the back alley 

of a business complex. Defendant gave the officer a false name and birth date. As the 

officer questioned defendant, the officer smelled marijuana. 

 The officer patted down defendant and found wire cutters, a folding knife, a steak 

knife, an axe, and a switch blade. After defendant consented to a search of his 

backpacks, the officer found a half-pound of marijuana and several small, empty, plastic 

baggies. The officer also found a hypodermic needle. 

 Defendant pleaded no contest to: (1) possession of marijuana for sale (Health & 

Saf. Code, § 11359); (2) three counts of possession of a dirk or dagger (Pen. Code, 

§ 21310); (3) possession of burglary tools (Pen. Code, § 466); (4) possession of 

controlled substance paraphernalia (Health & Saf. Code, § 11364.1); and (5) false 

representation of identity to a peace officer (Pen. Code, § 148.9). Defendant also 

admitted a prior “strike” conviction and three prior prison terms. (Pen. Code, § 667, 

subds. (b) & (e).) At sentencing, the court reduced the three counts of possession of a 
3 

dirk or dagger to misdemeanors (Pen. Code, § 17). The court then imposed a term of 32 

months in state prison, twice the mitigated term for possession of marijuana for sale. 

 The court also imposed a drug program fee of $150 for each of the two drug 

offenses, plus related penalty assessments. (Health & Saf. Code, § 11372.7.) Defendant 

lodged no objection to imposition of these fees. The minutes and the abstract of 

judgment stated the total amount of drug program fees as $450, plus $1,050 in penalty 

assessments. Additionally, the court imposed a $50 criminal laboratory analysis fee for 

each drug offense, with penalty assessments. (Health & Saf. Code, § 11372.5.) The 

minutes and the abstract of judgment stated the total amount of criminal laboratory fees 

as $150, plus $450 in penalty assessments. 

II. DISCUSSION

A. Imposition of the Drug Program Fees 

Defendant contends the record shows no evidence supporting his ability to pay the 

drug program fees imposed under Health and Safety Code section 11372.7 (section 

11372.7). Respondent contends defendant forfeited his claim by failing to object at 

sentencing. 

 It is clear that section 11372.7, subdivision (b), required the court to determine 

whether the defendant had the ability to pay the drug program fees.1

 In People v. 

McCullough (2013) 56 Cal.4th 589, our high court noted that the prosecution had the 

burden of showing the defendant’s ability to pay a booking fee under Government Code 

 1

 Section 11372.7, subdivision (b), 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 person’s 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.” 
4 

section 29550, subdivision (a), by a preponderance of the evidence. (People v. 

McCullough, supra at p. 598.) Even were we to assume the prosecution has the same 

burden with respect to drug program fees under Health and Safety Code section 11372.7, 

subdivision (b), the probation report submitted to the sentencing court set forth the facts 

of defendant’s financial status and recommended imposition of the drug program fees. 2 

At the sentencing hearing, the trial court solicited argument from both parties concerning 

the accuracy of the probation report, and both the prosecutor and defense counsel 

submitted on the basis of the report.3

 Accordingly, we consider the probation report as 

evidence in support of the prosecution’s burden to show defendant’s ability to pay the 

fees. And the court, by imposing the drug program fees that were recommended in the 

probation report, made a determination of defendant’s ability to pay them, satisfying the 

court’s obligation to do so under the statute. (See People v. Turner (2002) 96 

Cal.App.4th 1409, 1413, fn. 2 [trial court is not required to make a finding on the record 

of defendant’s inability to pay drug program fees].) Defense counsel lodged no objection 

to the accuracy of the probation report and made no argument regarding defendant’s 

ability to pay the drug program fees. 

 Because defendant did not object in the trial court to the imposition of the drug 

program fees or the accuracy of the probation report, he has not preserved his claim for 

review; therefore, we decline to reach the merits of his claim on appeal. (See People v. 

Sharret (2011) 191 Cal.App.4th 859, 864 [“[b]ecause the trial court had the discretion to 

not impose the drug program fee, the prosecutor’s failure to object forfeited any claim of 

error on appeal.”]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1518 [prosecution 

 2

 The probation report describes defendant’s employment as a driver “on & off 

since 2001” at $25 to $30 per day. 

3

 The prosecutor later offered a correction to the probation report that was 

unrelated to defendant’s financial status or the imposition of drug program fees. 
5 

forfeited claim of error in sentencing court’s failure to impose drug program fee by 

failing to object].) 

B. Amounts of the Fees 

 Defendant contends the minutes and abstract of judgment incorrectly state the total 

amounts of the drug program fees and criminal laboratory analysis fees, as well as the 

related penalty assessments the court imposed at sentencing. Respondent concedes that 

the minutes and the abstract of judgment incorrectly state these fees and assessments. 

We will accept respondent’s concession and order correction of the abstract of judgment. 

 “The oral pronouncement of judgment controls over any discrepancy with the 

minutes or the abstract of judgment.” (People v. Sharret, supra, 191 Cal.App.4th at p. 

864.) Here, the court orally imposed a drug program fee of $150 for each of the two drug 

offenses, plus penalty assessments. At the time of the offense, the penalty assessments 

equaled 300 percent of the fees.4

 Therefore, the program fees should have totaled $300, 

plus $900 in penalty assessments. The minutes and the abstract of judgment incorrectly 

stated the total amount as $450 in fees plus $1,050 in penalty assessments. Courts may 

correct such clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) 

We will do so. 

 4

 The 300 percent penalty assessment is calculated as follows: 100 percent (Pen. 

Code, § 1464, subd. (a)(1)), plus 20 percent (Pen. Code, § 1465.7, subd. (a)), plus 50 

percent (Gov. Code, § 70372, subd. (a)(1)), plus 70 percent (Gov. Code, § 76000, subd. 

(a)(1)), plus 10 percent (Gov. Code, § 76104.6, subd. (a)(1)), plus 30 percent (Gov. Code, 

§ 76104.7, subd. (a), as amended by Stats. 2011, ch. 36, § 16), plus 20 percent (Gov. 

Code, § 76000.5, subd. (a)(1)). (See People v. Voit (2011) 200 Cal.App.4th 1353, 1373-

1374.) We note that the penalty assessment under Government Code section 76000.5 

only applies if so elected by the county board of supervisors. We take judicial notice of a 

resolution to this effect passed by the Santa Clara County Board of Supervisors on April 

10, 2007. As of the filing of this opinion, the minutes can be found at 

<http://sccgov.iqm2.com/Citizens/FileOpen.aspx?Type=12&ID=1407> [as of Dec. 18, 

2013]. 
6 

 The court also orally imposed a $50 criminal laboratory analysis fee, plus penalty 

assessments, for each of the two drug offenses. The minutes and the abstract of judgment 

incorrectly stated the total amounts as $150 in laboratory fees plus $450 in penalty 

assessments. The criminal laboratory analysis fees and their penalty assessments should 

total $100 and $300, respectively. 

III. DISPOSITION

 We order the minutes and abstract of judgment corrected to reflect the following 

fees and penalty assessments: (1) $300 in total drug program fees, plus $900 in penalty 

assessments; and (2) $100 in total criminal laboratory analysis fees, plus $300 in penalty 

assessments. As modified, the judgment is affirmed. 

 

MÁRQUEZ, J. 

WE CONCUR: 

 

RUSHING, P. J. 

 

GROVER, J.