Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC765789.
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After her Penal Code section 1538.5 motion to suppress evidence was denied, defendant Jennifer Logan pleaded no contest to the felony offense of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the misdemeanor offense of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). At sentencing, the trial court suspended the imposition of sentence and placed Logan on probation for three years. The conditions of probation included, among other things, the completion of a substance abuse program and payment of various fines and fees.
On appeal, Logan raises the following issues: (1) the trial court erred in denying her motion to suppress because there was no evidence to show that the probationer with whom she was sharing a motel room had joint or sole access to her purse or her black canvas bag; (2) there was insufficient evidence to support the trial court’s implied finding that she had the present ability to pay attorney fees of $300 pursuant to Penal Code section 987.8, subdivision (b); (3) the trial court imposed excessive penalty assessments in its orders imposing an AIDS education fee (Health & Saf. Code, § 11377), a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), and a drug program fee (Health & Saf. Code, § 11372.7); and (4) there was insufficient evidence to show that she has the ability to pay the drug program fee of $150.
For the reasons stated below, we determine that the trial court did not err in denying Logan’s motion to suppress evidence. We also determine the evidence was insufficient to show that Logan had a present ability to pay attorney fees or the drug program fee. The Attorney General concedes that the trial court imposed excessive penalty assessments. Therefore, we will order the abstract of judgment modified to strike the order to pay attorney fees of $300 and the drug program fee of $150 and to reduce the penalty assessments in accordance with the Attorney General’s concession. As so modified, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
The complaint filed on May 7, 2007, charged Logan with possession for sale of methamphetamine, a felony (Health & Saf. Code, § 11378; count 1) and possession of controlled substance paraphernalia, a misdemeanor (Health & Saf. Code, § 11364).
B. The Preliminary Hearing
The preliminary hearing was held on June 19, 2007. The witnesses included three San Jose Police Department officers, Eric Bardwell, Michael Taylor, and Ellen Washburn. Officer Bardwell and Officer Taylor were involved in the motel room search at issue in this case. Officer Washburn is a detective assigned to the narcotics unit. The following is a brief summary of their testimony.
Officer Bardwell was on duty on May 3, 2007 at approximately 2:30 a.m. when he contacted codefendant Corey Merino during a traffic stop. Merino informed Officer Bardwell that his driver’s license was suspended. Officer Bardwell also discovered that Merino was on probation with a search condition. After the traffic stop was completed, Officer Bardwell and Merino proceeded to the Extended Stay America motel, where Merino was staying in room No. 226.
When Officer Bardwell arrived at the motel, he knocked on the door to room No. 226 and found defendant Logan inside. While Logan and Merino were out in the motel hallway, Officer Bardwell and Officer Taylor searched their room. The officers found the following items during their search: (1) two baggies containing methamphetamine inside a toothpaste box that was in a cupboard above the kitchenette microwave; (2) a syringe, a piece of rubber and one baggie containing methamphetamine in a black canvas bag discovered in a closet next to the bathroom; and (3) a green leafy substance they believed to be marijuana. They also found a digital scale on a tabletop and a large quantity of torn up plastic baggies in the garbage can and strewn around the floor.
In the course of the investigation, Logan’s Miranda rights were read to her and she indicated that she understood those rights. Officer Taylor obtained a statement from Logan in which she admitted that the black canvas bag containing the methamphetamine and the syringe was hers. The approximate weight of the methamphetamine found in Logan’s black canvas bag was 1.6 grams, while methamphetamine found in the two baggies in the toothpaste box weighed 13.1 grams and 1.9 grams. Officer Washburn provided an expert opinion that the quantity of methamphetamine found in the black canvas bag and the toothpaste box was for the purpose of sale.
Miranda v. Arizona (1966) 384 U.S. 436.
At the conclusion of the preliminary hearing, defendant Logan was held to answer on both charges. The information filed on June 29, 2007, contained the same two charges as the complaint, possession for sale of methamphetamine, a felony (Health & Saf. Code, § 11378; count 1) and possession of controlled substance paraphernalia, a misdemeanor (Health & Saf. Code, § 11364).
C. The Motion to Suppress Evidence
On October 17, 2007, Logan filed a motion to suppress the evidence seized from the motel room pursuant to Penal Code section 1538.5. She argued that the entire course of police conduct was unlawful, including the traffic stop of codefendant Merino and the warrantless search of the motel room and the personal possessions under her exclusive control.
The People opposed the motion to suppress evidence, contending that Logan lacked standing to challenge the traffic stop of codefendant Merino; the traffic stop was lawful in any event; the search of the motel room was lawful because Merino was on probation with a search condition; and the officers had probable cause to search all containers in the motel room because the defendants were in joint possession of drugs and contraband.
D. The Hearing on the Motion to Suppress Evidence
The hearing on the motion to suppress evidence was held on August 14, 2007 and November 2, 2007. Officer Bardwell and Officer Taylor both testified about the motel room search during the November 2, 2007 hearing. The summary below focuses on the testimony relevant to defendant Logan.
Officer Bardwell initiated the traffic stop of Merino on May 3, 2007, at approximately 2:30 a.m. because he suspected that Merino was driving under the influence and there was an object hanging from the rear view mirror that obstructed the driver’s view. When Officer Bardwell asked Merino for his driver’s license, Merino replied that his license was suspended. Merino also told Officer Bardwell that he was on probation with a search condition, which the officer confirmed by a records check. The car that Merino was driving belonged to defendant Logan.
Officer Bardwell subsequently asked Merino where he was staying. Merino said that he was staying at a motel and a “friend of his was staying over” in his motel room. Officer Bardwell then went to the motel to perform a search. When he arrived, he knocked on the motel room door and Logan answered. Officer Bardwell explained to her that he was going to search the room because the room was registered to Merino, who was on probation with a search condition. Both Merino and Logan waited outside in the motel room hallway while the search was conducted.
Before Officer Bardwell asked Logan to wait outside, he inquired as to whether she had anything in the motel room. She replied that she “had some items on the bed and in the bathroom area.” The motel room had a single bedroom and bathroom. Officer Bardwell then began the search in the kitchenette area. In the cupboard above the microwave he discovered a toothpaste box containing two baggies of what he believed was methamphetamine. After finding the methamphetamine, Officer Bardwell believed that he had probable cause to search the rest of the room. He saw a digital scale in plain view on a table and “small bits of torn-up plastic baggie” in the garbage can and scattered on the floor, which he believed to be consistent with the dealing of methamphetamine or other narcotics.
When Officer Taylor joined in the search, he searched more of the sleeping area and the bathroom. In the common “closet area” of the bathroom, Officer Taylor found a black canvas bag with a “zippered-pouch bag” on top of it. The appearance of the pouch did not indicate to him whether the pouch belonged to a man or a woman. Inside the pouch, Officer Taylor discovered a syringe and what he believed to be methamphetamine. He then searched the bathroom and the area around the bed. On top of the bed, Officer Taylor found a purse that contained a green, leafy substance that he believed to be marijuana. He assumed that the purse belonged to Logan before he searched it.
After the motel room search was completed, Officer Bardwell read Merino and Logan their Miranda rights. When Merino was subsequently questioned, he said that the substances found in the room belonged to Logan. Officer Taylor took Logan’s statement. She acknowledged that the black canvas bag belonged to her, as did the pouch containing the syringe. Logan also admitted that the purse and the marijuana in it were hers.
E. The Trial Court’s Orders
The trial court denied the motion to suppress on November 6, 2007. The court found that the traffic stop was lawful and “the search of the room in which Ms. Logan was staying as well as the items therein was also lawful.”
The next day, November 7, 2007, Logan filed a motion titled “motion to dismiss the information for due process violation by court, or, in the alternative, to re-open [the] motion to suppress evidence.” She argued that the trial court had precluded her from “fully and fairly litigating her motion to suppress evidence” due to the procedural irregularities that had allegedly taken place during the proceedings on the defendants’ motions to suppress evidence. The People opposed the motion, asserting that a motion to dismiss the information could not be used to test the reasonableness of a search and seizure and the suppression issue had already been fully litigated on the merits.
The trial court denied the motion on November 20, 2007, after determining that it was “essentially a motion for reconsideration” of Logan’s motion to suppress evidence.
F. Plea and Sentencing
After her motion to suppress evidence was denied, Logan entered into a plea agreement. At the hearing held on November 20, 2007, the People recited their agreement to amend count 1 of the information by striking the “for sale” language and amending the charge to a violation of Health and Safety Code section 11377, subdivision (a), possession of methamphetamine. In exchange, Logan pleaded no contest to count 1 as amended, and no contest to count 3, a misdemeanor violation of Health and Safety Code section 11364, possession of controlled substance paraphernalia.
After Logan’s plea was taken, the trial court immediately proceeded to sentencing. The court suspended the imposition of sentence and placed Logan on formal probation for three years. She was ordered to “immediately contact the adult probation department, the department of revenue regarding her ability to pay fines and fees.” The conditions of probation included, among other things, completion of a substance abuse treatment program; seeking and maintaining gainful employment or academic or vocational training; payment of an AIDS education fine of “no more than 70 dollars, plus penalty assessment”; a “lab fee of 100 dollars plus penalty assessment”; “a drug program fee [of] 150 dollars plus penalty assessment;” and attorney fees of $300 under Penal Code section 987.8.
The trial court’s ruling from the bench did not specify the amounts of the penalty assessments. However, the minute order of November 20, 2007, indicates that Logan was ordered to pay a penalty assessment of $171.50 in addition to the AIDS education fee of $70 (Health & Saf. Code, § 11377), a penalty assessment of $245 in addition to the criminal laboratory analysis fee of $100 (Health & Saf. Code, § 11372.5), and a penalty of assessment of $367 in addition to the drug program fee of $150 (Health & Saf. Code, § 11372.7).
Logan filed a timely notice of appeal on January 18, 2008.
III. DISCUSSION
Logan raises the following four issues on appeal: (1) the trial court erred in denying her motion to suppress because there was no evidence to show that the probationer with whom she was sharing a motel room had joint or sole access to her purse or her black canvas bag; (2) there was insufficient evidence to support the trial court’s implied finding that she had the present ability to pay attorney fees of $300 pursuant to Penal Code section 987.8, subdivision (b); (3) the trial court imposed excessive penalty assessments in its orders imposing an AIDS education fee (Health & Saf. Code, § 11377), a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), and a drug program fee (Health & Saf. Code, § 11372.7); and (4) there was insufficient evidence to show that she has the ability to pay the drug program fee. We will address each issue in turn.
A. Order Denying Motion to Suppress Evidence
Logan acknowledges that it is well established that “[w]hen there is reason to believe that an object is jointly possessed or that a probationer has authority (jointly or solely) over an item the appellate courts have upheld searches and seizures [of the item] as lawful under the Fourth Amendment,” citing People v. Alders (1978) 87 Cal.App.3d 313.) Logan argues, however, that the search of her purse and black canvas bag was unlawful because there was no evidence that Merino, who was a probationer, had access to either the purse or the bag, or that she herself was “involved with drug sales.” She also emphasizes that Officer Bardwell and Officer Taylor failed to specifically inquire as to the ownership of the black bag. Logan therefore asserts that her motion should have been granted and the evidence from the search of the purse and black canvas bag suppressed, including her statements that the purse and bag belonged to her.
The People disagree. They contend that the totality of the circumstances supported a reasonable belief on the part of the officers that probationer Merino had joint control of the bathroom closet and the bags inside the closet. These circumstances included, according to the People, the facts that Merino and Logan were sharing the motel room and the bags in the bathroom closet were gender neutral. Also, the People point out that none of the charges arose from the marijuana found in Logan’s purse.
Alternatively, the People argue, relying People v. Smith (2002) 95 Cal.App.4th 912, 919 (Smith), that the search of the purse was lawful because “when the officers saw a scale with residue on a table (a common area), methamphetamine in a cupboard (a common area), torn-up plastic baggies in a garbage can (a common area), and methamphetamine in the black bag in the bathroom closet (another common area). . ., they had reason to believe the entirety of [the] hotel room Merino and [Logan] shared was being used for a criminal enterprise.” Based on these facts, the People assert that Officer Taylor had reason to believe that the purse, regardless of its appearance, was an object in joint use. The People also maintain that the officers had no obligation to ask Logan whether the purse belonged to her before searching it.
We apply a well established standard of review to determine whether the trial court properly denied Logan’s motion to suppress evidence. “‘We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining, whether on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ Citation]” (People v. Maury (2003) 30 Cal.4th 342, 384.) In the present case, the relevant facts are essentially undisputed. We will therefore exercise our independent judgment regarding the legal question of whether the warrantless search of Logan’s black canvas bag and her purse was reasonable under the Fourth Amendment.
The United States Supreme Court has instructed that “a warrantless search, justified by a probation search condition, may extend to common areas, shared by nonprobationers, over which the probationer has ‘common authority.’ (United States v. Matlock (1974) 415 U.S. 164, 171 . . . .” (Smith, supra, 95 Cal.App.4th at p. 916.) Thus, “[i]t is true that if persons live with a probationer, common or shared areas of their residence may be searched by officers aware of an applicable search condition.” (People v. Robles (2000) 23 Cal.4th 789, 798.)
Moreover, “ ‘[t]hose associating with a probationer assume the ongoing risk that their property and effects in common or shared areas of a residence may be subject to search.’ [Citations.]” (Smith, supra, 95 Cal.App.4th at p. 919.) When an officer executes a probation search, the officer may therefore “look into closed containers that he or she reasonably believes are in complete or joint control of the parolee or probationer.” (People v. Baker (2008) 164 Cal.App.4th 1152, 1159.) “The appearance of the object searched is but one of many factors to consider in assessing whether the reasonable suspicion standard was satisfied.” (People v. Boyd (1990) 224 Cal.App.3d 736, 746 (Boyd).) Accordingly, with regard to a purse, the “critical issue” is “not whether the purse was ‘female’ or gender-neutral,” but whether the officer reasonably believed that the purse was under the probationer’s control, or, at least, that the probationer had access to the purse. (Smith, supra, 95 Cal.App.4th at p. 919.)
Applying the reasonable suspicion standard, the appellate court in Smith, supra, 95 Cal.App.4th 912 determined that officers had lawfully searched a purse belonging to the defendant, who shared a bedroom with a male probationer. The defendant gave an officer permission to go inside her purse to locate a key to a safe containing a gun. After obtaining the key, the officer placed the purse on the bed in the shared bedroom, where officers also found a baggie containing marijuana in the pocket of a robe, baggies containing methamphetamine residue in knick-knack containers, baggies containing a white powder residue in a wooden box, a line of cut methamphetamine inside a desk, and three narcotic smoking pipes in a box on a shelf. (Id. at pp. 914-915.) After a narcotics police dog “ ‘gave an indication’ ” to the purse, the officer opened the purse and found a plastic bag containing a substance believed to be methamphetamine. The defendant subsequently moved to suppress the narcotics found in the purse because it was a distinctively female item. The appellate court concluded, however, that once the officers determined that the shared bedroom “was being used for a criminal enterprise, there was no reason for the officers not to believe the purse, regardless of its appearance, was one being jointly used, even if not jointly owned, by the probationer subject to search.” (Id. at pp. 919-920; see also Boyd, supra, 224 Cal.App.3d 736, 750-751 [search of nonparolee’s handbag found on bed in parolee’s trailer lawful because the officers had reasonable suspicion that it was owned or controlled by a parolee].)
Based upon our independent review, we believe that the present case is similar to Smith, supra, 95 Cal.App.4th 912 and we reach the same result. Here, the officers were in the course of conducting a lawful probation search of the motel room shared by probationer Merino and defendant Logan when they searched the gender-neutral black canvas bag and zippered pouch found in the closet of the motel room’s only bathroom. The officers opened the black canvas bag and zippered pouch within the scope of the lawful probation search because they could reasonably believe that Merino had access to these items. When the officers discovered the methamphetamine and syringe in either the black canvas bag or the pouch (we note the record is unclear on this point), in addition to the other drug-related items found in the common areas of the motel room (the two baggies of methamphetamine found in the toothpaste box, the digital scale, and the torn-up baggies), the officers could reasonably determine, based on the totality of the circumstances, that the motel room was being used for a criminal enterprise. At that point, the officers could lawfully search Logan’s purse on the reasonable belief that probationer Merino had joint use of the purse, or, at least, access to it. The officers had no obligation to ask Logan whether the purse belonged to her before searching it. (People v. Baker, supra, 164 Cal.App.4th at p. 1160.)
The decision relied upon by Logan, People v. Veronica (1980) 107 Cal.App.3d 906 (Veronica), does not compel a different result because the facts in that case are distinguishable. In Veronica, officers conducting a parole search of the defendant’s home when only his wife was present found a number of drug-related items, including $1,500 in small bills in a “distinctly female” brown leather purse hanging on a bedroom door. (Id. at pp. 908-909.) In determining that the search of the purse was unlawful, the Veronica court acknowledged that “[t]he particular circumstances may indicate that the object is, in fact, one of the parolee’s own effects or, at least, jointly possessed by him or another.” (Id. at p. 909.) The court concluded, however, “there was simply nothing to overcome the obvious presumption that the purse was hers, not his.” (Ibid.) In contrast, in the instant case the totality of the circumstances indicated, as we have discussed, that the motel room shared by Logan and probationer Merino was being used for a criminal enterprise, and therefore Merino had joint use of the purse or, at least, access to it and other closed containers in the room.
For these reasons, we conclude that the trial court did not err in denying Logan’s motion to suppress evidence.
B. Attorney Fees Order
Logan argues that the order requiring her to pay attorney fees of $300 pursuant to Penal Code section 987.8 must be reversed because there was no evidence to support the trial court’s implied finding that she has the ability to pay the fees.
The Attorney General contends that the evidence was sufficient because a finding of ability to pay could be implied from several factors, including the presumption that Logan could earn $300 while she was out of custody on probation, the probation condition requiring her to seek and maintain gainful employment or academic or vocational training, and the lack of any physical or personal limitations that would preclude gainful employment.
The court’s authority to order a defendant who has received legal assistance at public expense to pay all or part of the cost is set forth in Penal Code section 987.8. (People v. Viray (2005) 134 Cal.App.4th 1186, 1211.) “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, . . . the court may, after notice and a hearing, make a determination of the present ability to pay all or a portion of the cost thereof.” (Pen. Code, § 987.8, subd. (b).) “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set forth the amount to be reimbursed and order the defendant to pay the sum to the county . . . .” (Pen. Code, § 987.8, subd. (e).)
Thus, a finding that a defendant has the present ability to pay is a prerequisite to an order to pay attorney fees under Penal Code section 987.8. The statutory definition of “ability to pay” is set forth in Penal Code section 987.8, subdivision (g)(2). “ ‘Ability to pay’ means 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, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Pen. Code, § 987.8, subd. (g)(2).)
A determination that a defendant has a present ability to pay need not be express, but may be implied through the content and conduct of the hearing. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) Whether express or implied, the attorney’s fee order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
In the present case, there is nothing in the record to support the trial court’s implied finding that Logan had the present ability to pay attorney fees in the amount of $300. The reporter’s transcript from the hearing of November 20, 2007, where the attorney fees were ordered, is silent as to Logan’s present or future financial position, the likelihood of her gaining employment, or any other factor bearing upon her financial capability. Moreover, contrary to the Attorney General’s contention, there is nothing in the record to support a presumption that Logan had a present ability to earn $300 while on probation or that she had no physical or personal limitations that would preclude gainful employment. In short, the record lacks any evidence of Logan’s present ability to pay attorney fees of $300.
Because the trial court’s implied finding of present ability to pay is not supported by sufficient evidence, the attorney fees order cannot be upheld on appeal. (People v. Nilsen, supra, 199 Cal.App.3d at p. 347.) Accordingly, in the interests of judicial economy and in light of the relatively small amount of the order, rather than remanding the matter for further proceedings we will strike the order to pay attorney fees of $300 pursuant to Penal Code section 987.8.
C. Penalty Assessments
Logan seeks a reduction of the penalty assessments imposed by the trial court in its minute order of November 20, 2007, contending that the penalty assessments were excessive.
Specifically, Logan argues in her opening brief that the penalty assessment of $171.50 imposed on the AIDS education fee of $70 should be reduced by $20, according to the following calculation: “(1) a one-hundred percent (100%) penalty assessment should have been imposed based upon Penal Code Section 1464 in the amount of $70. (2) A penalty assessment of fifty-five percent (55%) based upon Government Code section 76000, subdivision (e) for $38.50. (3) A fifty percent (50%) penalty assessment based upon Government Code Section 70372, subdivision (a) in the amount of $35 should have been imposed. (4) A twenty percent (20%) penalty assessment based upon Penal Code Section 1465.7 in the amount of $14 should have been ordered. The total penalty assessment imposed on the AIDS education fee should have been $157.50.”
Penal Code section 1464, subdivision (a)(1), provides, “Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
Government Code section 76000, subdivision (e) provides in part, “The seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402.”
Government Code section 70372, subdivision (a)(1) provides, “Except as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000.”
Penal Code section 1465.7, subdivision (a) provides, “(a) A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
Logan similarly argues in her opening brief that the penalty assessment of $245 imposed on the criminal laboratory analysis fee of $100 should be reduced by $20, according to the following calculation: “A one-hundred percent (100%) penalty assessment should have been imposed upon Penal Code Section 1464 in the amount of $100. A penalty assessment of fifty-five percent (55%) based upon Government Code Section 76000, subdivision (e) should have been imposed in the amount of $55. A fifty-percent (50%) penalty assessment based upon Government Code Section 70372, subdivision (a) in the amount of $50 should have been imposed. Finally, a twenty-percent (20%) penalty assessment based upon Penal Code Section 1465.7 in the amount of $20 should have been ordered. The total penalty assessment imposed on the criminal laboratory analysis fee should have been $225.”
Logan also argues in her opening brief that the penalty assessment of $367 imposed on the drug program fee of $150 should be reduced by $30, according the following calculation: “A one-hundred percent (100%) penalty assessment should have been imposed based upon Penal Code section 1464 in the amount of $150. A penalty assessment of fifty-five percent (55%) based upon Government Code section 76000, subdivision (e) for $82.50 should have been imposed. A fifty percent (50%) penalty assessment based upon Government Code Section 70372, subdivision (a) in the amount of $75 should have been ordered. A twenty percent (20%) penalty assessment based upon Penal Code Section 1465.7 in the amount of $30 should have been ordered. The total penalty assessment imposed on the criminal laboratory analysis fee should have been $337.50.”
The Attorney General agrees with Logan that the penalty assessments are excessive, but disagrees as to the amounts of the reductions. While Logan contends that the penalty assessments imposed on the AIDS education fee, the criminal laboratory analysis fee, and the drug program fee should be reduced by $20, $20, and $30, respectively, the Attorney General’s calculations indicate that the penalty assessments should be reduced by greater amounts, $24.50, $34.50, and $82.50, respectively. The Attorney General’s calculations are based on its interpretations of Penal Code section 1464, subdivision (a); Penal Code section 1465.7, subdivisions (a) and (b); Government Code section 76000, subdivision (a)(1); and Government Code section 70372, subdivision (a). In her reply brief, Logan does not object to the Attorney General’s calculation of the appropriate penalty assessments and the corresponding reductions in the trial court’s penalty assessment orders.
Appellate review of the penalty assessments imposed in a case is facilitated where the trial court recites the statutory basis for the penalty assessments and makes any required factual findings. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-460; People v. High (2004) 119 Cal.App.4th 1192, 1200.) Here, the trial court did not do so, and the record is silent as to the statutory basis for any of the penalty assessments imposed in this case. However, in light of the parties’ agreement that the penalty assessments are excessive, the small amounts involved, and the interests of judicial economy, we will not remand the matter for a further hearing regarding the statutory basis for the penalty assessments. Instead, we will order the abstract of judgment amended to reduce the penalty assessments in the amounts calculated by the Attorney General, with the exception of the penalty assessment on the drug program fee, which we will strike for the reasons discussed below.
D. Drug Program Fee
In her supplemental opening brief, Logan argues that the trial court erred by imposing a drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) in the amount of $150 without making the required finding that she has the ability to pay the fee. The Attorney General disagrees, contending that the evidence was sufficient to support the trial court’s implied finding of ability to pay. According to the Attorney General, the evidence showed that Logan owned a car and had indicated at the time of sentencing her understanding that she was obligated to pay fees. The Attorney General also notes the “absence of evidence” that Logan had any “mental or physical impediments.”
Health and Safety Code section 11372.7, subdivision (a), provides that a drug program fee of $150 may be imposed for each separate drug offense conviction. Subdivision (b) of the same section requires the sentencing court to determine whether the defendant 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 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.” (Health & Saf. Code, § 11372.7, subd. (b).)
The provisions of Health and Safety Code section 11372.7 do not require the trial court to make an express finding of that the defendant has the ability to pay a drug program fee. (People v. Staley (1992) 10 Cal.App.43th 782, 785 (Staley).) In the absence of evidence to the contrary, we presume that the trial court followed the law in performing its duty (Evid. Code, § 664) and the requisite determination of ability to pay is implicit in the order to pay the drug program fee. (See Staley, supra, 10 Cal.App.4th at p. 785.)
In the present case, the trial court made no express finding that Logan had an ability to pay the drug program fee. Accordingly, the issue is whether substantial evidence supports the trial court’s implied finding of her ability to pay. We find that the evidence is insufficient. As discussed above, we have determined that the record contains no evidence regarding Logan’s ability to pay fees. The evidence that she owned a car is insufficient to support an implied finding of ability to pay because there was no showing, for example, as to the value of the car. While we recognize that it has been held that “[a]bility to pay does not necessarily require existing employment or cash on hand” (Staley, supra, 10 Cal.App.4th at p. 785), the record’s silence as to Logan’s personal circumstances or earning capacity precludes us from finding that the evidence is sufficient to support the trial court’s implied finding of her ability to pay.
For these reasons, we will strike the order to pay a Health and Safety Code section 11372.7 drug program fee in the amount of $150 and the corresponding penalty assessment of $367.
IV. DISPOSITION
The abstract of judgment is ordered modified to (1) strike the order to pay $300 in attorney fees under Penal Code section 987.8; (2) strike the $150 drug program fee under Health and Safety Code section 11372.7; (3) strike the penalty assessment of $367 for the drug program fee; and (4) reduce the penalty assessments for the AIDS education fee and the criminal laboratory analysis fee by $24.50 and $34.50, respectively. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.
WE CONCUR: Mcadams, J., duffy, J.