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Name: People v. Coleman
Case #: A134124
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 07/30/2013
Summary

Trial court may not delegate determination of defendant’s ability to pay drug program fee to probation department. Following appellant’s conviction for controlled substance offenses, the trial court imposed a drug program fee of $570 pursuant to Health and Safety Code section 11372.7, subdivision (a) and attorney’s fees, without making a finding of ability to pay. Regarding fines and fees the court stated: “All of these other fines and fees, except for the $600 restitution fee, are based on his ability to pay. So probation will do an analysis of his ability to pay and it will be set that way.” Defense counsel did not object to the imposition of these fees. The probation report did not recommend imposition of the drug program fee, nor advise regarding appellant’s ability to pay such fees. On appeal, Coleman contended that the trial court erred by delegating the determination of his ability to pay this fee to the probation department. The appellate court agreed and remanded. Preliminarily, the court concluded that People v. McCullough (2013) 56 Cal.4th 589, did not bar appellant’s claim because the trial court’s improper delegation of the ability to pay finding is a question of law, not fact, as was the sufficiency of the evidence claim in McCullough. By delegating the ability to pay finding to the probation department, the court failed to comply with section 11372.7, subdivision (b), which requires the court to determine the defendant’s ability to pay a drug program fee. Nor did the record support an implied finding of ability to pay. On remand, if the court reinstates the fee, it must conduct a hearing concerning ability to pay the fee in light of appellant’s total financial obligations.