Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F03425
HULL , J.While on probation in another matter, defendant Michael James Boyle entered a plea of guilty to unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); unspecified section references that follow are to this code) in exchange for dismissal of a remaining charge. The trial court suspended imposition of sentence and placed defendant on Proposition 36 probation for three years. After three subsequent probation violations, the court terminated defendant’s probation, sentenced him to two years in prison and imposed, among other fees and fines, a $100 drug program fee (§ 11372.7, subd. (a)).
On appeal, defendant contends that, because the trial court did not impose a drug program fee at the time it granted probation, it made an implicit finding at that time that defendant did not have the ability to pay, and subsequent imposition of that fee at sentencing was therefore error. Because the abstract of judgment reflects a drug program fee of $150, we shall modify the abstract and affirm the judgment.
Factual And Procedural Background
While on probation in case No. 122F02, defendant was served with a restraining order. Pursuant to the conditions of his probation, he provided a urine sample which revealed the presence of methamphetamine in his system. Police arrested defendant and searched him, finding two baggies of methamphetamine.
The complaint in case No. F03425 charged defendant with possession of methamphetamine, a felony (count 1) and unlawful use or being under the influence of a controlled substance, a misdemeanor (count 2).
Defendant entered a plea of guilty to count 1 in exchange for dismissal of count 2. He also admitted violating probation in case No. 122F02. The trial court suspended imposition of sentence for three years and placed defendant on Proposition 36 probation. No fees or fines were imposed.
The probation department filed two subsequent petitions alleging defendant violated probation in case No. F03425. Following a contested hearing, the court found the alleged violations true and revoked defendant’s probation pending sentencing. After consideration of the probation report, the court reinstated probation.
Probation filed a third petition alleging that defendant’s guilty plea to a felony in another matter in another county constituted a violation of probation in case No. F03425. Defendant admitted the alleged violation. The court terminated probation as unsuccessful and imposed the mid-term sentence of two years in state prison. The court also imposed a $220 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $220 parole revocation fine, stayed (Pen. Code, § 1202.45), a $100 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) and a $50 laboratory fee (id., § 11372.5, subd. (a)).
Defendant filed a timely notice of appeal. His request for a certificate of probable cause was denied.
Discussion
Section 11372.7, subdivision (a), provides in relevant part 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." Imposition of the fee is subject to a determination by the court as to the defendant’s ability to pay. (§ 11372.7, subd. (b).)
Defendant contends the trial court’s silence as to imposition of the drug program fee when it granted probation should be characterized as an implied finding of inability to pay, such that imposition of the $100 drug program fee upon termination of probation and imposition of sentence was error. He relies, in part, on People v. Burnett (2004) 116 Cal.App.4th 257 (Burnett) to support his position. We are not persuaded.
In Burnett, the trial court imposed various fees and fines, never mentioning the mandatory sex offender fine and making no findings on the record regarding defendant's ability to pay the fine. (Burnett, supra, 116 Cal.App.4th at pp. 259-260.) On appeal, this court concluded as follows: “Because factual issues come into play in determining whether a defendant has the ability to pay the [Penal Code] section 290.3 fine, the failure to impose the fine is ‘not correctable without considering factual issues presented by the record or remanding for additional findings.’ [Citations.] On a silent record, we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine.” (Id. at p. 261, italics added.)
Here, however, the record is not silent. When probation was granted, imposition of sentence had been suspended. While the trial court did not impose, nor did it mention, the drug program fee at that time, it specifically imposed a $100 drug program fee pursuant to section 11372.7 when it terminated probation and imposed the two-year prison sentence. We know of no authority, and defendant provides us with none, that prohibits the trial court from imposing a drug program fee at this juncture. Furthermore, in the absence of an express finding of defendant’s ability to pay that fee, we presume the court lawfully performed its duty in imposing sentence and implicitly found, at the time the fee was imposed, that defendant had the ability to pay. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
Defendant’s reliance on People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers) is similarly unavailing. In Chambers, the trial court imposed a $200 restitution fine at the time it granted probation. (Id. at p. 821.) When probation was later revoked and sentence imposed, the court imposed a $500 restitution fine. (Ibid.) On appeal, this court found the $500 fine was not authorized because the original $200 fine for the same conviction survived the revocation of probation. (Id. at p. 823.)
In contrast to Chambers, the trial court here suspended imposition of sentence and granted defendant probation, but made no findings and entered no order at that time regarding the drug program fee or defendant’s ability to pay. Once probation was terminated, however, the court imposed the two-year sentence and ordered defendant to pay the $100 drug program fee. Because the court suspended imposition of sentence without addressing the issue of the drug program fee when it granted probation, it was free to impose the drug program fee for the first time once the suspension was lifted and sentence was imposed. Furthermore, we infer from the court’s order that it made a determination at that time that defendant had an ability to pay. (People v. Mosley, supra, 53 Cal.App.4th at p. 496.) Given evidence of defendant’s employment as contained in the various probation reports, we find that determination to be reasonable.
We note, however, and the People concede, a discrepancy between the court’s pronouncement of the $100 drug program fee and the $150 drug program fee reflected in the abstract of judgment. The abstract should be corrected to reflect the judgment pronounced by the court. (See People v. Rowland (1988) 206 Cal.App.3d 119, 123-124.)
Disposition
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the imposition of a $100 drug program fee and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS , Acting P.J., ROBIE , J.