Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 057356
ROBIE, J.
Defendant Joseph Michael Wheat pled no contest to assault by force likely to produce great bodily injury, threatening to commit a crime resulting in death or great bodily injury, and transportation of cocaine. He admitted a 1986 burglary strike conviction and having served two prior prison terms. In exchange, five related counts and enhancing allegations were dismissed.
Defendant was sentenced to state prison for 13 years 4 months, with 351 days’ custody credit and 174 days’ conduct credit. He was ordered to pay a $600 restitution fine and a $600 parole revocation fine.
The court imposed a number of other fees, including a $150 drug program fee plus penalty assessments for a total of $570.
On appeal, defendant contends the drug program fee and penalty assessments must be stricken because of his inability to pay. We shall affirm the judgment.
FACTS
On November 25, 2005, defendant was driving a car that almost collided with a car containing two victims. The cars were driven side by side until they reached a parking lot and defendant got out of his car. An altercation ensued between defendant and the male victim in the other car. Defendant assaulted the male by means of force likely to produce great bodily injury.
During the altercation, defendant threatened the female passenger of the other car, stating that he had a gun and that “‘[y]ou guys are dead. I am going to kill you.’”
Responding police officers apprehended defendant. An ensuing search of his clothing revealed two small white crystalline rocks that tested positive for cocaine.
Defendant had a 1986 Santa Clara County first degree burglary conviction and had served prison terms in 1996 and 1992.
DISCUSSION
I
Ability To Pay
Defendant contends the $150 drug program fee and associated penalty assessments must be stricken because of his inability to pay. He claims the evidence showed without contradiction that his mental health problems would preclude him from working while in prison, and his earning prospects upon release from prison are slim. Thus, his trial counsel’s objection on the ground of inability to pay should have been sustained. We are not persuaded.
At the change of plea hearing, defendant’s counsel stated that defendant “does have a history of mental illness. He is diagnosed bipolar, and he has been hospitalized before.” Defendant told the court he has hepatitis C and also has “mental health issues.” He stated he was “on a lot of medication” and had been “on a lot of medication for a long time.”
At sentencing, defendant requested that the drug program fee and penalty assessments not be imposed due to his inability to pay. The sentencing court responded that defendant “is going to prison” and “he will be working there. He gets paid money. They may not get it all. They ought to be able to get some of it. [¶]... [¶] [H]e is going to be in 13 years less credit and good time and all the rest of it. It is not a six-month sentence.”
Defendant’s counsel told the court that the going rate of pay in prison is eight cents per hour. Defendant personally told the court, “Because of the mental health issues, I don’t work in prison. I am a--if I do work, I only work in [the] kitchen for six to eight cents an hour.”
The court stated, “[a]ll my records indicate that these [fines and fees] are mandatory and have to be imposed.” In response, defendant’s counsel sought to point out the portion of the statute that addresses the ability to pay. The court replied that documentation from its legal staff indicated that the fee “must be imposed for each un-stayed conviction.” Defendant’s counsel responded, “Correct, unless the court finds there is no ability to pay.” The court replied that it “can’t make that finding,” and explained that defendant “will be able to do some work in prison. He is going to be there a long time. They may not collect all of it, they may not collect any of it. I don’t know where the priority--where they put the money first. But if there is money there while he is in prison, it ought to be paid.” Perhaps alluding to defendant’s mental and physical health issues, the court added that, “[w]hen he gets out [of prison], that is going to be a different story.”
Based on this exchange, defendant claims it “is not clear that the trial court truly realized it had the power and authority to strike the drug program fee if it found [he] did not have the ability to pay.” We disagree.
Health and Safety Code section 11372.7 provides in relevant part: “(b) 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 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.”
Defendant claims “the evidence shows that [he] did not have the ability to pay the drug program fee and its attendant fees and penalties.” He quotes the first portion of his statement at sentencing (“[b]ecause of mental health issues, I don’t work in prison”), omits the contradictory second portion (“if I do work, I only work in [the] kitchen for six to eight cents an hour”), and boldly concludes that “[t]here was no contrary evidence.” Read in its entirety, defendant’s statement supports a finding that he could work in the prison’s kitchen for about eight cents an hour, the rate the trial court attributed to him. The statement did not compel a finding that he will not work while in prison.
Defendant cites Penal Code section 2700 for the proposition that “only an ‘able-bodied prisoner’ is eligible for work.” (Italics added.) In relevant part, the statute simply states that “The Department of Corrections shall require of every able-bodied prisoner imprisoned in any state prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections.” Nothing in this statute defines “able-bodied” or suggests what “mental health issues” would exclude a person from that description. Defendant’s reliance on the statute is therefore misplaced.
If defendant’s confinement time is 70 months (including Pen. Code, § 2933 credits), he could earn $896 at eight cents an hour or $672 at six cents an hour. The sentencing court acknowledged that defendant may not be able to pay his entire fine from prison earnings, but he should be able to pay a portion of it.
Defendant does not contend that Health and Safety Code section 11372.7 compels a finding of inability to pay even though the evidence suggests he has at least some ability to pay. Any such contention is forfeited. (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Wharton (1991) 53 Cal.3d 522, 563.) Even if it is assumed that defendant will not earn money following his release from prison, the evidence supports a finding that defendant could pay at least a portion of the drug program fee and penalty assessments from his prison earnings.
II
State Court Construction Penalty
In this case, the court imposed a $75 court construction penalty on the $150 drug program fee. It also imposed a $25 court construction penalty on the $50 laboratory fee.
In his opening brief, defendant contended remand is required to determine whether the state court construction penalty (Gov. Code, § 70372, subd. (a)) should be reduced.
The People responded that the penalty need not be reduced. The People appear to rely on the Judicial Council of California’s Uniform Bail and Penalty Schedules (Jan. 2005 ed.), promulgated pursuant to California Rules of Court, rule 4.102. (Uniform Bail and Penalty Schedules, Preface, part III.B., at p. iv. (Uniform Schedules).)
Defendant’s offenses were committed in 2005. The language relied on by the Attorney General appears in the 2005 edition of the uniform bail and penalty schedules. The language has been removed from the cited portion of the current January 2009 edition. Defendant does not contend that the removal was intended to lessen the former penalty.
In his reply brief, defendant concedes that, “it appears that [the People] may be correct.” We agree with the parties.
The 2005 Uniform Schedules stated in relevant part: “Government Code section 70372(a) requires imposition of a state court construction penalty on every fine, penalty, or forfeiture collected by the courts for criminal offenses.... Section 70372 specifies a maximum court construction penalty of $5 for every $10, or fraction thereof, of the criminal fine, penalty, or forfeiture. Government Code section 70375(b) specifies that the $5 court construction amount authorized by section 70372(a) is reduced by the amount, determined by the County Board of Supervisors, collected for deposit into the local Courthouse Construction Fund established pursuant to Government Code section 76100. The court construction penalty amount applicable to each county that should be used to calculate that penalty... is as follows: [¶]... [¶] Yolo $5.00.” (Uniform Schedules, part III.B., pp. iii-iv.)
These amounts imposed are consistent with the formula set forth in the Uniform Schedules. We find no error.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.
When the court said that the fee “must be imposed for each un-stayed conviction,” defendant’s counsel responded, “Correct, unless the court finds there is no ability to pay.” The court replied that it “can’t make that finding,” and explained that defendant “will be able to do some work in prison” and he would “be there a long time.”
Thus, the court ruled that the evidence precluded it from finding that “there is no ability to pay.” Nothing in the record suggests that the court was unaware of its power and authority to make a contrary ruling if it were supported by the evidence.