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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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) 

---- 

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 and admitted he had a prior drug 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 for his plea, it was agreed he would receive a 

sentence of eight years in local custody and supervision. Even though his negotiated 

resolution did not include a treatment program, defendant contends on appeal that the 

trial court abused its discretion 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 support a finding of his ability to pay the drug 

program fee. 

 Because the trial court never orally imposed the drug program fee, we order a 

correction of the abstract to omit the fee. We otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND2

 On December 2, 2011, defendant pleaded 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 exchange for his plea, counts for transporting 

heroin, transporting oxycodone, transporting methamphetamine, resisting arrest, 

providing false identification to a police officer, and driving on a suspended license were 

dismissed. Allegations that defendant had an additional prior drug trafficking conviction 

and had served two additional prior prison terms were also dismissed. The parties agreed 

that defendant would be sentenced to eight years of local prison custody and supervision. 

The agreement did not include a promise of a drug treatment program. In fact, before 

defendant entered his plea, the prosecutor made clear that a treatment program was not 

part of the plea agreement, and the court 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 residential treatment programs. 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 facts underlying defendant’s offense as they are 

not pertinent to the resolution 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 109 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, numerous 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. Nevertheless, at the hearing on January 10, 2012, the court, with 

the approval of the prosecutor, authorized defendant to be released on a one-day pass for 

an interview with the Salvation 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 about whether defendant could be released to 

treatment while serving his term of confinement. The department noted that release 

during confinement 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. The 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 that he thought it important to have the programs interview 

defendant so that, whatever position he or the court might take later, there would be more 

information. 

5 Penal Code section 1204 provides in pertinent part that circumstances in aggravation or 

mitigation “shall be presented 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 that 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 that he had been clean and sober for 14 months, 

the last 8 of which he had been in the Yolo County Jail. He also testified that he had had 

a “significant spiritual awakening,” and described his NA and church related activities. 

He denied that he had ever been given an opportunity for a long-term treatment program. 

 At the conclusion of the hearing, the court continued the matter to give the parties 

time to consider a sentence in which the defendant could go to a program, but the court 

could maximize a custody sentence should defendant “not make good on this.” 

 On March 9, 2012, defense counsel informed 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 him” -- 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 stricter, 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 and 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 Salvation Army because he understood Salvation 

Army was one-year residential with no transitional support into the community, while 

River City Recovery allowed participants to work after either six, nine, or twelve months. 

The court replied, “[W]e want a longer term program, and all we need to do is make sure 

that [U-Turn for Christ] passes muster with probation department.” Earlier in the 

hearing, the court told defendant, this would be a “one-time opportunity. If you want to 
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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 you were never given an 

opportunity. This is the one time.” (Italics added.) The court continued the hearing for 

two weeks to investigate U-Turn for Christ. 

 On March 23, 2012, defense counsel informed the court that the U-Turn for Christ 

program was approved by the jail. The program is also approved as an alternative 

sentencing facility for Sacramento County. He also informed the court that James 

Worley, the program administrator, was prepared to pick defendant up that day to 

commence treatment and that he would be required to sign a minimum contract of one 

year. 

 Over the prosecutor’s objection, the trial court released defendant into the U-Turn 

for Christ program. In doing so, the trial court stated, “as the 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 ordered defendant to “[o]bey all regulations for 

the program at U-turn for Christ.” 

 The trial court scheduled a follow-up hearing for April 3, 2012, at 10:00 a.m., “to 

see if he’s been placed.” The court then told defendant, “I am going to say as well, 

Mr. Russell, if, for some reason, you don’t make 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 seven days a week included Sundays. After a 

bench conference requested by the prosecutor, the 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 released only to James [Worley].” 
6 

 On March 26, 2012, James Worley faxed a letter to the court advising that 

defendant had been released to his custody on Friday, March 24, 2012, but refused to 

complete and sign the U-Turn for Christ contract, and he left 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 defense counsel to explain in his own words what 

had happened, defendant told the court he had refused to enter the U-Turn for Christ 

program because he discovered upon his arrival that he would not be able to have contact 

with his girlfriend while he was there -- a condition to which he would not agree. He 

went to the Salvation Army the 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 every day. On Thursday, March 29, 2012, he was admitted 

into the Salvation Army program. He tested 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 computer and told defendant his court appearance was in 30 

minutes. Defendant called the court to let them know he would not be in and voluntarily 

appeared on April 4, whereupon he was taken into custody. Defendant requested that the 

court release him back to the Salvation Army program. 

 The trial court noted that most programs do not permit association with a 

girlfriend while trying to address one’s addiction. The trial court also noted that 

defendant had previously insisted that U-Turn for Christ, not the Salvation Army, was the 

right program for him. It appeared to the trial court that defendant wanted to pick and 

choose what rules and program are appropriate, rather than comply with the court’s 

orders. 

 

6 The Salvation Army program in which defendant was enrolled was a “Six month, Nine 

month, and One year work therapy rehabilitation program.” 
7 

 The trial court declined to send defendant back to the Salvation Army program 

and sentenced him to a split sentence, calculated as follows: 1,946 days in local custody, 

974 days on mandatory supervision, including 365 days in a residential treatment 

program. 

DISCUSSION 

I. Denial of Placement into the Salvation Army Program 

 Defendant contends the trial court abused its sentencing 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 court. 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 consideration of a treatment program required 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 discretion by sentencing him to extensive time in 

custody with a period of mandatory supervision 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 date. [¶] 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 Worley picked him up and took him to the 

facility. Defendant then voluntarily disconnected from the program 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 impression [defendant] could return and make 

different program arrangements.” Yet, in the trial court, when defendant was given a 

chance to explain, he admitted, “I know I did the wrong thing by walking.” Defendant 
8 

never claimed he thought the trial court’s orders allowed him leeway to leave the court 

ordered program and make other arrangements as long as he attended AA/NA meetings; 

nor did defense counsel, who accurately described defendant’s actions as “a terrible 

mistake.” Now on appeal, defendant asserts a broad interpretation of the trial court’s 

instructions regarding the failure to “connect” with the court ordered program to 

essentially include walking away 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 warned 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 specifically 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 excuse him from compliance. There is no abuse of discretion 

here. 

II. Drug Program Fee 

 Defendant also contends the trial court erred by ordering him to pay a $6007 drug 

program fee pursuant to section 11372.7 without substantial 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 judgment corrected to omit it. 

 The trial court orally imposed the mandatory $50 crime laboratory analysis fee 

(plus penalty assessments) pursuant to section 11372.5. Section 11372.7, subdivision (a), 

provides that persons convicted of drug offenses “shall pay a drug program fee in an 

amount not to exceed one hundred 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 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.” 

 The abstract of judgment includes a $600 drug program fee (§ 11372.7, subd. (a).) 

However, the trial court did not orally impose that fee. Accordingly, we presume the trial 

court determined defendant did not have the ability to pay. (People v. Martinez (1998) 

65 Cal.App.4th 1511, 1516-1519.) 

 The People argue that defendant was ordered to pay the drug program fee in a 

written order he signed, and because he never complained he lacked the ability to pay, he 

forfeited the issue for purposes of appeal. The 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 the $50 criminal laboratory analysis fee. 

Beneath that paragraph is a separate paragraph 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 number 10 of the order and it reads as follows: 

“X (a) Pay $50 as a criminal laboratory analysis 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 had no reason to believe the court was ordering 

the drug program fee. Consequently, defendant had no reason to object to the court’s 

failure to make an ability to pay determination. 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 the form does not indicate any 

such finding had been made. Given that the 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 court’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 fee, the judgment is the oral rendition of sentence.9 (People v. 

Mitchell (2001) 26 Cal.4th 181, 185.) Since the trial court did not orally pronounce the 

drug program fee, or at least orally reference the orders on the form, the fee was not 

included in the judgment. Thus, the abstract of judgment must be corrected to omit the 

$600 drug program fee. 

 

9 If the line for an “X” next to the paragraph pertaining to the lab fee is also intended to 

apply to the paragraph pertaining to the drug program fee, then the form appears to 

contemplate imposition of the later fee in all cases, regardless of ability to pay. The court 

should consider changing this form. 
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DISPOSITION 

 The trial court is directed to prepare a corrected abstract of judgment deleting 

reference to the drug program fee and forward a certified copy thereof to the relevant 

authorities. The judgment is otherwise affirmed. 

 MURRAY , J. 

We concur: 

 MAURO , Acting P. J. 

 DUARTE , J.