Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F09210
ROBIE, J.
Defendant Matthew Rodrigues appeals his sentence following a plea. He contends that fines, fees, and orders shown in the clerk’s transcript but not imposed by the trial court must be stricken, and that one of those, the drug program fee, may not be imposed on remand. He also contends that on remand the court may not impose a $30 court facilities assessment because to do so would violate the ex post facto prohibition.
We shall remand the matter to the trial court with directions to strike all fines and orders not orally imposed at sentencing, but to reimpose those fines and orders which are mandatory, including the court facilities assessment, and to hold a hearing on defendant’s ability to pay the drug program fee. In all other respects, we shall affirm the judgment.
BACKGROUND
On June 18, 2009, defendant pled no contest to possession of methamphetamine and admitted an allegation of a prior strike in return for an agreed state prison sentence of 32 months (the low term, doubled for the strike). The prosecutor stated as the factual basis for the plea that on October 29, 2008, defendant possessed methamphetamine in a usable amount, and that in April 2005, he had been convicted of attempted arson.
According to the reporter’s transcript, the trial court imposed a $200 restitution fine and a stayed $200 parole revocation fine, plus a $20 court security fee. According to the sentencing minute order and the abstract of judgment, however, the court also ordered defendant to pay a “$30 CFF” (presumably the court facilities fee addressed in part II of the Discussion), a $50 laboratory fee, and a $150 drug program fee, and further ordered him to register as a narcotics offender and to provide a DNA sample.
DISCUSSION
I
Fees Not Imposed By Trial Court
Defendant contends that all fees and orders which appear in the sentencing minute order and the abstract of judgment, but were not orally pronounced on the record by the trial court, must be stricken. He requests that the matter be remanded with directions that the court: (1) impose the laboratory fee, and (2) order registration as a narcotics offender and the provision of DNA samples (all of which are mandatory), but (3) not impose the drug program fee, because it is not mandatory and its imposition following a reversal on appeal would violate the ban on double jeopardy. (Cf. People v. Zackery (2007) 147 Cal.App.4th 380, 385-389.) The People agree except as to the drug program fee, asserting that it must be imposed if the trial court determines defendant can pay it. (Id. at pp. 388-389, 394.) The People are correct.
The drug program fee (Health & Saf. Code, § 11372.7) must be imposed in an amount up to $150 “in addition to any other penalty prescribed by law” where a defendant has been convicted of drug offenses including Health and Safety Code section 11377 (possession of methamphetamine), as here. (Id., § 11372.7, subd. (a).) However, before imposing this fee, the trial court must determine whether the defendant can pay $150 or any lesser amount. (Id., § 11372.7, subd. (b).)
Defendant asserts that the trial court may not impose this fee on remand because to do so would violate the prohibition on double jeopardy. He is mistaken. As he concedes, “mandatory items that were not ordered at sentencing” do not violate that prohibition. This fee, as we have explained, is mandatory if defendant can pay it.
People v. Hanson (2000) 23 Cal.4th 355, on which defendant relies, is inapposite. There, after an appellate court partially reversed a judgment and remanded for resentencing, the trial court on remand increased the defendant’s restitution fine, thus imposing a more severe punishment in violation of the double jeopardy rule. (Id. at pp. 357-358.) Here, defendant cannot receive a more severe punishment on resentencing than that shown in the abstract of judgment.
On remand the trial court is directed to hold a hearing to determine whether defendant can pay the full $150 drug program fee or some lesser amount, and if so, to impose the fee in whatever amount defendant can pay.
II
The Court Facilities Assessment
Defendant contends that the prohibition on ex post facto punishment precludes the trial court from imposing a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) on remand because the statute providing for that fee became effective on January 1, 2009, after the date of defendant’s offense. He is mistaken.
In People v. Castillo (2010) 182 Cal.App.4th 1410, this court rejected this exact argument. (See also People v. Brooks (2009) 175 Cal.App.4th Supp. 1.)
The California Supreme Court reached a similar conclusion regarding an analogous statute. In People v. Alford (2007) 42 Cal.4th 749, a statute effective after Alford’s crime imposed a court security fee on every conviction. (See Pen. Code, § 1465.8.) Because the statute was part of a budgeting bill, the court concluded that “the Legislature intended to impose the court security fee to all convictions after its operative date.” (Alford, at p. 754.)
Further, like the court security fee, the criminal conviction assessment for court facilities was enacted as part of the budgeting process. (See Castillo, supra, 182 Cal.App.4th at p. 1413.) In Alford, the California Supreme Court viewed such circumstance as an indication that the court security fee was meant to apply to convictions incurred after its operative date. (People v. Alford, supra, 42 Cal.4th at p. 754; accord, People v. Rivera (1998) 65 Cal.App.4th 705, 710 [ex post facto claim case].) The same rationale applies here.
On remand, the trial court is directed to impose the $30 court facilities assessment.
DISPOSITION
The matter is remanded to the trial court with the following directions: (1) The court shall strike all fines, fees, and orders not originally imposed in open court, but shall then impose those fines and orders which are mandatory, as specified above in parts I and II of the Discussion. (2) The court shall hold a hearing on defendant’s ability to pay the drug program fee in any amount. If the court determines defendant can pay any portion of that fee, the court shall impose it in whatever amount defendant can pay; otherwise the court shall not impose it.
In all other respects, the judgment is affirmed.
We concur: HULL, Acting P. J. BUTZ, J.