Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI1001460 Miriam Ivy Morton, Judge. Affirmed as to defendant Nicholas Anthony Crimi; reversed in part and affirmed as modified as to defendant Angelique Maria Hernandez.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant Nicholas Anthony Crimi.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Angelique Maria Hernandez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
Defendants and appellants Nicholas Anthony Crimi and Angelique Maria Hernandez (collectively defendants) appeal their respective guilty pleas to (1) one count of unlawful cultivation or processing of marijuana (Crimi) (Health & Saf. Code, § 11358); and (2) one count of maintaining a place for manufacturing, storing, or distributing a controlled substance (Hernandez) (Health & Saf. Code, § 11366).
FACTUAL AND PROCEDURAL HISTORY
On June 25, 2010, defendants were arrested at their home and charged in count 1 with possession of marijuana for sale (Health & Saf. Code, § 11359), and in count 2 with unlawful cultivation or processing of marijuana (Health & Saf. Code, 11358). The complaint was later amended to add count 3, maintaining a place for unlawfully selling, giving away, or using a controlled substance. (Health & Saf. Code, § 11366.)
A. DEFENDANT CRIMI
According to the sheriff’s report, an investigation was conducted at defendants’ home based on an anonymous call indicating marijuana was being grown on the property. The responding sheriff’s deputy said she could see marijuana plants growing in pots from outside the front gate. She then contacted defendants, who gave the deputy permission to enter their home. Defendants showed the deputy their doctor’s recommendations for the use of medical marijuana. The deputy noticed a telephone ringing about 20 times while she was conducting her investigation. Inside the residence, the deputy saw clear plastic baggies and a gram scale on the coffee table. In the backyard, there were 74 marijuana plants growing, including 25 full grown and 49 small/medium sized plants. Based on this information, the deputy believed marijuana was being sold from the residence. Based on her training and experience, the deputy also believed the number of plants exceeded the legal limit for the possession of marijuana for medical use.
When interviewed, Crimi said he had about $1,500 in his wallet from selling an old vehicle and from odd side jobs. Crimi denied selling marijuana from the home. In addition, defendants explained they had the gram scale and plastic baggies because they weighed their own marijuana and put it in the individual baggies.
During this investigation, Crimi allowed the deputy to answer Crimi’s cellular telephone. The deputy spoke to a male caller who wanted to purchase marijuana. The deputy arranged for the sale of $10 worth of marijuana. The male caller arrived at the residence to complete the purchase, along with two companions who waited in the car.
Pursuant to a written plea agreement, Crimi pled no contest on July 8, 2010, to count 2. The marijuana possession for sale charge in count 1 was dismissed pursuant to Penal Code section 1385. The parties stipulated to the sheriff’s report as a factual basis for the plea.
All further statutory references are to the Penal Code unless otherwise indicated.
After signing an agreement to appear for sentencing, Crimi was released on his own recognizance. On September 2, 2010, Crimi appeared for sentencing, and the court granted him supervised probation for a period of three years, subject to various terms and conditions, including 120 days in jail in the weekend/work release program.
B. DEFENDANT HERNANDEZ
Hernandez pled no contest on July 8, 2010, to count 3, maintaining a place for unlawfully selling, giving away, or using a controlled substance. (Health & Saf. Code, § 11366.) Counts 1 and 2 were dismissed pursuant to Penal Code section 1385. The parties stipulated to the sheriff’s report as a factual basis for the plea. The facts of the offense are not relevant to the issues raised on appeal.
After signing an agreement to appear for sentencing, Hernandez was released on her own recognizance. On September 2, 2010, Hernandez appeared for sentencing, and the court granted her supervised probation for a period of three years subject to various terms and conditions, including 60 days in jail in the weekend/work release program.
DISCUSSION
A. DEFENDANT CRIMI
On September 7, 2010, defendant filed a notice of appeal. The notice states defendant’s appeal “is based on the sentence or other matters occurring after the plea.” It also states the “appeal challenges the validity of the plea or admission.” Defendant requested and was granted a certificate of probable cause pursuant to section 1237.5.
We appointed counsel to represent defendant on appeal. Appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief.
Defendant filed a supplemental brief on January 4, 2011, challenging the factual basis for his guilty plea. He believes the marijuana plants found at his home did not exceed the allowable limits for the use and possession of medical marijuana. In addition, he contends there is no factual basis for concluding he was selling marijuana from his home. He claims he had never sold any marijuana to the friend who called and arranged a sale with the deputy. Instead, the friend merely assumed defendant would sell him some of his medication, when defendant would not have made the sale.
As outlined ante, Crimi did not plead guilty to possession of marijuana for sale.
“A guilty plea admits every element of the crime and constitutes a conviction.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) “For that reason, and without regard to section 1237.5, issues going to the determination of guilt or innocence are not cognizable on appeal.” (Id. at p. 1178.) For example, a defendant “may not enter into a negotiated disposition for an offense[, ] enjoy the fruits thereof, and then challenge the factual basis for the plea on appeal.” (People v. Borland (1996) 50 Cal.App.4th 124, 127.) Rather, a guilty plea “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility....” (People v. Turner (1985) 171 Cal.App.3d 116, 125.) In other words, defendant’s challenge to the factual basis for his guilty plea is not cognizable on appeal.
B. DEFENDANT HERNANDEZ
1. CRIMINAL LABORATORY FEE; PENALTY ASSESSMENT
At the time of sentencing, the court ordered defendant to pay a $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5 and a penalty assessment of $85. Defendant contends, and the People agree, that these amounts were unauthorized.
“[O]bvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (People v. Smith (2001) 24 Cal.4th 849, 852.) A court of appeal may therefore correct any such error “without remanding for further proceedings in the presence of defendants. [Citations.]” (Id. at p. 854.)
Subdivision (a) of Health and Safety Code section 11372.5 does provide for a $50 criminal laboratory analysis fee for certain enumerated offenses. However, defendant was convicted of violating Health and Safety Code section 11366, which is not one of the enumerated offenses. The $50 criminal laboratory analysis fee is therefore unauthorized and must be stricken.
“Because the laboratory analysis fee is a fine, section 1202.4, subdivision (a)(2), requires a penalty assessment in the amount of $85. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) However, since the laboratory analysis fee is unauthorized, the $85 penalty assessment is also unauthorized and must be stricken.
2. PROCESSING FEE
At sentencing, the court also ordered defendant to pay a $35 processing fee. Defendant contends, and the People agree, that the amount of the processing fee should be reduced to $30. The parties are correct that the current version of subdivision (d) of section 1205 limits the amount of the processing fee to $30. Defendant is therefore entitled to a reduction of the processing fee from $35 to $30.
3. APPOINTED COUNSEL FEES
As defendant contends, the court made a finding at the sentencing hearing that she “does have the present ability to pay appointed counsel fees in the amount of $150.00....” In addition, the court found defendant “does have the ability to pay probation supervision fees pursuant to Section 1203.1(b)....” Defendant contends there is insufficient evidence in the record to support these findings.
A finding of a present ability to pay is a “condition to an order assessing attorney fees.” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398; § 987.8, subd. (b).) “[A]ny finding of ability to pay must be supported by substantial evidence. [Citations.]” (Pacheco, at p. 1398.) If there is no substantial evidence to support a defendant’s present ability to pay, an order to pay fees is erroneous as a matter of law. (People v. Nilsen (1988) 199 Cal.App.3d 344, 351.)
“Ability to pay” is defined in subdivision (g)(2) of section 987.8 to mean “the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her....” Subdivision (g)(2) of section 987.8 also includes a number of factors that must be considered in making a determination as to whether a defendant has the “ability to pay.” For example, the court must consider the “defendant’s present financial position”; the “defendant’s reasonably discernible future financial position” within the six months following the hearing date; and the “likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing.” (§ 987.8, subds. (g)(2)(A), (B) & (C).)
Likewise, subdivision (a) of section 1203.1b requires the court to “make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision....” Unless the right is waived by the defendant, the court must make this determination at a noticed hearing. (§ 1203.1b, subds. (a), (b).) As in subdivision (g)(2) of section 987.8, subdivision (e) of section 1203.1b defines “‘ability to pay’” and sets forth a number of factors which must be considered in making this determination.
The record before us contains only minimal information about defendant’s financial condition. At the sentencing hearing, defendant’s counsel objected to appointed counsel fees and other costs, because his client was “unemployed” and “on State Aid.” The probation report prepared shortly before the sentencing hearing indicated defendant was pregnant. It also states “not employed whole life.” The space on the report labeled “income” was left blank. Although the record does not include a formal diagnosis, defendant claims to suffer from bipolar disorder.
Based on the foregoing, it is our view the record did not include sufficient evidence of defendant’s ability to pay attorney fees or probation supervision fees. Nor is there anything in the record to indicate the court held a noticed hearing or otherwise made appropriate inquiries as to defendant’s ability to pay. The orders to pay attorney fees and probation supervision fees are therefore erroneous as a matter of law.
DISPOSITION
As to defendant Nicholas Anthony Crimi, the judgment is affirmed.
As to defendant Angelique Maria Hernandez, the judgment is reversed as to the orders requiring Hernandez to pay $150 in attorney fees and probation supervision fees; the matter is remanded with directions to the trial court to determine, in accordance with the applicable statutes, Hernandez’s ability to pay any such fines or fees before imposing them. Further, the $50 criminal laboratory analysis fee imposed by the trial court pursuant to Health and Safety Code section 11372.5 and the $85 penalty assessment imposed under Penal Code section 1464 are stricken as unauthorized. The $35 processing fee imposed pursuant to Penal Code section 1205, subdivision (d) is reduced to the statutory limit of $30. The trial court is directed to amend the abstract of judgment so as to reflect the modifications and to forward a certified copy the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P. J., McKINSTER J.