1 Filed 3/5/15 P. v. Russell CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo)

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THE PEOPLE, Plaintiff and Respondent,

v. JAMES ROBERT RUSSELL II, Defendant and Appellant. C071589 (Super. Ct. No. CRF105078)

Defendant James Robert Russell II pleaded no contest to possession of methamphetamine for sale a nd admitted he had a prior dr ug trafficking conviction and had served two prior prison terms. (Health & Saf. Code, §§ 11378, 11370.2, subd. (c) 1 ; Pen. Code, § 667.5, subd. (b).) In exchange fo r his plea, it was agreed he would receive a sentence of eight years in local custody an d supervision. Even though his negotiated resolution did not include a treatment program , defendant contends on appeal that the
trial court abused its discreti on by refusing to place him in a drug treatment program after

1 Further undesignated statutory references are to the Health and Safety Code in effect at the time of the charged offenses.2 he walked away from a different treatment program the court had approved. Defendant
also contends that there is no evidence to su pport a finding of his ability to pay the drug program fee. Because the trial court never orally im posed the drug program fee, we order a
correction of the abstract to omit the fee. We otherwise affirm. FACTUAL AND PROCED URAL BACKGROUND 2 On December 2, 2011, defendant pl eaded no contest to possession of methamphetamine for sale, and admitted he had a prior drug trafficking conviction and had served two prior prison terms. In ex change for his plea, counts for transporting heroin, transporting oxycodone, transpor ting methamphetamine, resisting arrest, providing false identification to a police officer, and drivi ng on a suspended license were dismissed. Allegations that defendant had an additional prior drug trafficking conviction and had served two additional pr ior prison terms were also di smissed. The parties agreed that defendant would be sentenced to eight ye ars of local prison cust ody and supervision. The agreement did not include a promise of a drug treatment program . In fact, before defendant entered his plea, the prosecutor ma de clear that a treatment program was not part of the plea agreement, and the cour t told defendant it was not committing to a treatment program. 3 After the court accepted defendant’s plea, defense counsel asked that defendant be released to apply to resi dential treatment program s. The trial court denied the request and referred the matter to the probation department for an evaluation
and recommendation.

2 We dispense with a recitation of the fact s underlying defendant’s offense as they are not pertinent to the resolutio n of the issues on appeal.

3 The plea form signed by defendant reads, “8 years stip state prison. This is a Local Time commitment & supervision under AB 10 9 upper term + 3 enhancements.” No mention is made on the form of a treatment program.3 In a presentence report filed January 10 , 2012, the probation department noted defendant has 14 prior felony convictions, numer ous parole violations, and is considered high risk to reoffend according to the Static Risk Assessment. The probation department recommended the trial court impose the eight -year prison sentence, which would be served in county jail. Nevert heless, at the hearing on Janua ry 10, 2012, the court, with the approval of the prosecutor, authorized defendant to be re leased on a one-day pass for
an interview with the Salva tion Army program and another one-day pass to the Delancey Street program. 4 In a letter to the court dated January 31 , 2012, the probation department responded to the court’s request for a recommendation abou t whether defendant could be released to treatment while serving his term of confinem ent. The department noted that release during confinemen t was up to the sheriff. For a split sentence contemplating residential treatment, it recommended placement in a program only upon the commencement of the period of supervision. On February 7, 2012, defense counsel and defendant advised that defendant had not been transported to Delancey Street. Th e trial court again authorized a one-day pass for that purpose. On February 24, 2012, the court held a sentencing hearing pursuant to Penal Code
section 1204. 5 Defense counsel argued for a sentence to the Delancey Street program if the program would accept him, with seven to eight years of mandatory supervision after completion of the program.

4 The prosecutor indicated th at he thought it important to have the programs interview defendant so that, whatever pos ition he or the court might take later, there would be more information.

5 Penal Code section 1204 provid es in pertinent part that ci rcumstances in aggravation or mitigation “shall be presente d by testimony of witnesses examined in open court.”4 Defendant’s girlfriend testified she had just graduated from a clean and sober program called Promise House and believed defendant was also committed to making that change. She also testified she knew th at Delancey Street was a strict, two-year residential program that may not even let her see defendant for a long period of time. Defendant testified that the primary motivation for his prior convictions was related to his drug addiction. He testified th at he had been clean and sober for 14 months,
the last 8 of which he had been in the Yolo Co unty Jail. He also test ified that he had had a “significant spiritual awakening,” and desc ribed his NA and church related activities.
He denied that he had ever b een given an opportun ity for a long-term tr eatment program. At the conclusion of the hearing, the cour t continued the matter to give the parties
time to consider a sentence in which the de fendant could go to a program, but the court could maximize a custody sentence should de fendant “not make good on this.” On March 9, 2012, defense counsel info rmed the court that defendant had been accepted at the Salvation Army program but that he had also been accepted into another program he believed “might be better for hi m” -- an “up-to-two year” program called UTurn for Christ. Defense counsel explained that U-Turn for Christ was “residential in nature, and their terms are stri cter, they’re a bit out in the country, away from things.”
Defense counsel also said defendant had been approved for admission at River City Recovery, as well. Both Salvation Army an d River City Recovery were available for admission immediately but defendant sought a continuance to explore whether U-Turn for Christ would be approved by the probation department. Defendant told the court that he preferred River City Recovery over Salv ation Army because he understood Salvation Army was one-year residential with no tran sitional support into the community, while River City Recovery allowed par ticipants to work after either six, nine, or twelve months. The court replied, “[W]e want a longer term pr ogram, and all we need to do is make sure that [U-Turn for Christ] pass es muster with probation depa rtment.” Earlier in the hearing, the court told defe ndant, this would be a “ one-time opportunity . If you want to5 think of it as a one strike and you’re out opportunity , think of it in that way. In that if you’re serious about this you’ll never be able to say again that y ou were never given an opportunity. This is the one time .” (Italics added.) The c ourt continued the hearing for two weeks to investigate U-Turn for Christ. On March 23, 2012, defense counsel informed the court th at the U-Turn for Christ program was approved by the jail. The pr ogram is also approved as an alternative sentencing facility for Sacramen to County. He also info rmed the court that James Worley, the program administrator, was prep ared to pick defendant up that day to
commence treatment and that he would be re quired to sign a minimum contract of one
year. Over the prosecutor’s objection, the trial court released defend ant into the U-Turn for Christ program. In doing so , the trial court stated, “as th e Court has previously said,
this is absolutely the last opportunity Mr. Russell is going to be given. [¶] I hope he
understands and has no question regarding the Court’ s resolve should there be any failing at all in this program . [¶] Do you understand?” (Italics added.) Defendant replied, “Yes, sir.” The trial court then or dered defendant to “[o]bey all regulations for the program at U-turn for Christ.” The trial court scheduled a follow-up hearin g for April 3, 2012, at 10:00 a.m., “to see if he’s been placed.” Th e court then told defendant, “I am going to say as well, Mr. Russell, if, for some reason, you don’t ma ke connection with that program, you are to
be back here on the next court date. [¶] If, for some reason, you are not in the program, it will be seven days a week AA/NA meetings . [¶] Do you understand?” Defendant
indicated he did and the court clarified that se ven days a week includ ed Sundays. After a bench conference requested by the prosecutor, th e trial court stated, “One additional point on the Russell matter; and that is, since it has been represented that the defendant is going into this program, I am going to direct that he is to be rel eased only to James [Worley].”6 On March 26, 2012, James Worley faxe d a letter to the court advising that
defendant had been released to his custod y on Friday, March 24, 2012, but refused to complete and sign the U-Turn for Christ contract, and he le ft the program the following morning. The court issued a no-bail bench warrant. Defendant failed to appear at the April 3, 2012, hearing. On April 6, 2012, he appeared in custody. When asked by defens e counsel to explain in his own words what had happened, defendant told the court he ha d refused to enter the U-Turn for Christ program because he discovered up on his arrival that he would not be able to have contact with his girlfriend while he was there -- a co ndition to which he wo uld not agree. He went to the Salvation Army th e following Monday seeking admission. Tuesday, he went to “Sac Recovery” and River City Recovery and then back to Salvation Army. He also went to AA/NA meetings ever y day. On Thursday, Marc h 29, 2012, he was admitted into the Salvation Army program. He te sted clean for drugs at that time. 6 He had thought his next court date was April 4, 2012, but on April 3, a Salvation Army program worker looked up his case on the comp uter and told defendant his court appearance was in 30
minutes. Defendant called the court to let th em know he would not be in and voluntarily appeared on April 4, whereup on he was taken into custody. Defendant requested that the
court release him back to the Salvation Army program. The trial court noted that most pr ograms do not permit association with a girlfriend while trying to address one’s addi ction. The trial court also noted that defendant had previously insist ed that U-Turn for Christ, not the Salvation Army, was the right program for him. It app eared to the trial court that defendant wanted to pick and choose what rules and program are appropriat e, rather than comp ly with the court’s
orders.

6 The Salvation Army program in which defe ndant was enrolled was a “Six month, Nine month, and One year work ther apy rehabilitation program.”7 The trial court declined to send defenda nt back to the Salvation Army program and sentenced him to a split sentence, calculate d as follows: 1,946 da ys in local custody, 974 days on mandatory supervision, incl uding 365 days in a re sidential treatment
program. DISCUSSION
I. Denial of Placement into the Salvation Army Program
Defendant contends the tria l court abused its sentenci ng discretion by denying his request to be placed into the Salvation Army program after he refused to enroll in U-Turn for Christ as ordered by the cour t. We reject his contention.
We first note that the court was under no obligation to allow defendant to enter a treatment program. Entry into a treatment program was not part of the negotiated
resolution. Nor is considera tion of a treatment program requi red by any statute or rule.
The fact of the matter is that defendant had an extensive rap sheet developed over many, many years. The court did not abuse its discre tion by sentencing him to extensive time in custody with a period of mandatory supervis ion and a year-long drug treatment program.
Defendant bases his abuse of discretion argument on the trial court’s instructions that “if, for some reason, you don’t make connection with that program, you are to be
back here on the next court da te. [¶] If, for some reason, you are not in the program, it will be seven days a week AA/NA meetings .” But defendant did “connect” with the program -- as it is undisputed that James Wo rley picked him up and took him to the facility. Defendant then voluntarily disc onnected from the prog ram by walking away after refusing to sign the program contract. Defendant argues on appeal that “[i]t was not clear that a failure to ‘make a connection to that program’ would necessarily trigger a jail sentence. The option of the daily AA/NA sessions reasonably gave the impr ession [defendant] coul d return and make different program arrangements.” Yet, in th e trial court, when defendant was given a chance to explain, he admitted, “I know I did the wrong th ing by walking.” Defendant8 never claimed he thought the trial court’s or ders allowed him leeway to leave the court ordered program and make othe r arrangements as long as he attended AA/NA meetings; nor did defense counsel, w ho accurately described defenda nt’s actions as “a terrible mistake.” Now on appeal, de fendant asserts a broad interpretation of the trial court’s instructions regarding the failure to “co nnect” with the court ordered program to essentially include walking aw ay from that program because he did not want to be in that

program

. Even if defendant had actually believed he was in compliance by leaving the court ordered program and going to AA/NA meetings, we would not find that belief to be reasonable. The trial court repeatedly warn ed defendant this was his last opportunity, including a description of this last chance as a “one strike and you’re out opportunity.” Furthermore, the trial court sp ecifically ordered defendant to “[o]bey all regulations for the program at U-turn for Christ.” Defendant ’s refusal to do so, simply because he did not like the rules, did not excu se him from compliance. Ther e is no abuse of discretion
here. II. Drug Program Fee
Defendant also contends the trial c ourt erred by ordering him to pay a $600 7 drug program fee pursuant to secti on 11372.7 without su bstantial evidence that he has the ability to pay such a fee. The trial court, however, did not orally order defendant pay the drug program fee. Thus, we shall order the abstract of ju dgment corrected to omit it. The trial court orally imposed the manda tory $50 crime labor atory analysis fee (plus penalty assessments) pur suant to section 11372.5. S ection 11372.7, subdivision (a), provides that persons convicted of drug o ffenses “shall pay a drug program fee in an
amount not to exceed one hundre d fifty dollars ($150) for each separate offense.” But

7 Presumably, the $600 figure includes one $150 drug program fee and $450 in penalty assessments.9 section 11372.7, subdivision (b), provides in pertinent part: “The court shall determine whether or not the pers on who is convicted of a violation of this chapter has the ability to pay a drug program fee. If the court determin es 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 pers on 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.” The abstract of judgment includes a $600 drug program fee (§ 11372.7, subd. (a).) However, the trial court did not orally impose th at fee. Accordingly, we presume the trial
court determined defendant did no t have the ability to pay. ( People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1519.) The People argue that defendant was or dered to pay the drug program fee in a written order he signed, and beca use he never complained he la cked the ability to pay, he forfeited the issue for purposes of appeal. Th e People apparently refer to item number 10 on the written order for mandatory supervision. Item number 10 has a line marked with an “X” next to a paragraph providing for th e $50 criminal laboratory analysis fee. Beneath that paragraph is a separate paragra ph with no separate line for an “X.” This separate paragraph reads, “Pay a drug program fee not to exceed $150 plus a penalty assessment of $450, determined by ability to pay .” 8 (Italics added.)

8 The pertinent language is in item numbe r 10 of the order and it reads as follows: “X (a) Pay $50 as a criminal laboratory an alysis fee plus a penalty assessment of $150; 10. (H&S Code § 11372.5) (b) Pay a drug program fee not to exceed $150 plus a penalty assessment of $450, determined by ability to pay; (H&S Code § 11372.7).”10 The People’s argument concerning this boilerplate form fails to persuade. Because there is no “X” by the drug program fee paragraph like the other orders checked by the court, there is no indication the court actually intended it as an order. And without an “X” next to this paragraph, defendant ha d no reason to believe the court was ordering the drug program fee. Consequently, defenda nt had no reason to object to the court’s failure to make an ability to pay determina tion. Furthermore, no specific amount is indicated. Indeed, by the stated terms of the paragraph, the amount of the fee is conditional upon an ability to pay finding by the court and th e form does not indicate any such finding had been made. Given that th e language is conditional, no specific amount is stated, and the paragraph is not separately marked as are the other paragraphs ordered by the court, we cannot read the trial cour t’s judgment to include this boilerplate paragraph. Even assuming the single “X” was intended to cover both the order to pay the lab fee and the drug program f ee, the judgment is the oral rendition of sentence. 9 ( People v.
Mitchell (2001) 26 Cal.4th 181, 185.) Since the trial court did not or ally pronounce the drug program fee, or at least orally refe rence the orders on the form, the fee was not included in the judgment. Thus , the abstract of judgment mu st be corrected to omit the $600 drug program fee.

9 If the line for an “X” next to the paragraph pertaining to th e lab fee is also intended to apply to the paragraph pertaining to the dr ug program fee, then the form appears to contemplate imposition of the later fee in all cas es, regardless of ability to pay. The court should consider ch anging this form.11 DISPOSITION The trial court is directed to prepare a corrected abstract of judgment deleting reference to the drug program fee and forw ard a certified copy thereof to the relevant authorities. The judgment is otherwise affirmed.

MURRAY , J.

We concur:

MAURO , Acting P. J.

DUARTE , J.