P. v. Olson

Filed 10/30/06 P. v. Olson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

By information filed in January 2004, defendant Kimberly Olson was charged with cultivating marijuana, possessing marijuana for sale, selling marijuana, and resisting arrest in September 2003. She asserted a medical marijuana defense to the marijuana charges. The jury found her guilty of cultivation, but acquitted her of the remaining offenses. The trial court suspended imposition of sentence and placed her on five years’ probation, on the condition (among others) that she serve 90 days in jail. The jail term was stayed pending appeal.

On appeal from the order granting probation, defendant contends the trial court erred in excluding her medical expert from testifying and in limiting the testimony of her cannabis expert. Defendant also contends the trial court erred in imposing various nonmandatory fines and fees, including appointed counsel fees, because she did not have the ability to pay. Finally, she contends the trial court failed to give her three days of custody credit to which she was entitled.

We conclude defendant has shown no error in the trial court’s evidentiary rulings because she failed to make adequate offers of proof of the proposed testimony the trial court excluded. We further conclude the trial court did not abuse its discretion in determining defendant had the ability to pay various fees and fines at the rate of $20 per month, but did err in not separately listing, with the statutory basis, all fines, fees, and penalties imposed. We are unable to determine whether the trial court intended to require defendant to pay for her appointed counsel as part of the monthly installment payment the court ordered. Finally, we agree defendant was entitled to three days of custody credit. Accordingly, we will remand the case to the trial court with directions to separately list, with the statutory basis, all fines, fees, and penalties imposed, to properly determine whether defendant has the ability to pay appointed counsel fees under Penal Code section 987.8, and to grant defendant three days of custody credit.^[1]

DISCUSSION

I

Exclusion Of Dr. Denney’s Testimony

Defendant filed a list of expected trial witnesses that included Drs. Tod Mikuriya and Philip Denney. Dr. Mikuriya had issued a medical marijuana recommendation to defendant in April 1998, and an updated recommendation in March 2001. Dr. Denney became defendant’s physician in late 2004, and issued a medical marijuana recommendation to her at that time.

The prosecution filed a motion in limine seeking an Evidence Code section 402 hearing on defendant’s proposed medical marijuana defense. In that motion, the prosecution said it would be calling as a witness Dr. Richard Erick Swenson, who was defendant’s physician from 2001 to the present.

Subsequently, the prosecution filed a second in limine motion seeking to preclude Dr. Denney from testifying.^[2] According to the prosecution, because “Dr. Denn[e]y did not become involved in the defendant’s use of marijuana until 13 months after the date of [the] charged offenses,” his testimony would be “irrelevant to the issues outlined in the Information” and “would be cumulative and an undue expenditure of time and money.”

The court took up the in limine motions on the first day of trial. By that time, defendant had apparently decided not to call Dr. Mikuriya as a witness -- possibly because the county (which was providing defendant with legal representation) had approved payment for only a single medical expert to testify for defendant.^[3] The prosecutor took the position that “no introduction of [defendant’s] medical marijuana defense [could] be made without” Dr. Mikuriya’s testimony, since it was his recommendation on which defendant relied to justify her marijuana use at the time of her arrest. Defense counsel argued that Dr. Mikuriya’s testimony was not necessary and that the recommendation could be established through the testimony of defendant’s caregiver. Defense counsel also explained that Dr. Denney was “lined up and approved by the Court to come and testify on the medical issues of the case.”

The court deferred ruling on the admissibility of the medical marijuana defense as a whole to address the remaining in limine motions, including the prosecution’s motion to preclude Dr. Denney from testifying. On that motion, the court prohibited defendant from mentioning during opening statement “what Dr. Denney is going to testify . . . he did 13 months or so after this charged offense.” The court further indicated Dr. Denney’s testimony might be admissible depending on the prosecution’s case, then invited defense counsel “to point out how I’m incorrect.”

Defense counsel argued that Dr. Denney’s “testimony on medical issues is certainly relevant and proper. We obviously have to have a doctor who can testify as to what her medical needs are. And he, as being the current treating doctor, is certainly in a position to do that.” Defense counsel further represented that defendant’s “medical needs have not changed over the last several years,” so Dr. Denney -- “with the benefit of Dr. Mikuriya’s records and any other records” -- would “be capable of giv[ing] an opinion” about her needs at the time of her arrest.

The prosecutor continued to oppose Dr. Denney’s testimony, arguing that his recent “medical marijuana recommendation is irrelevant to the time of the charges.”

The court stuck by its ruling, prohibiting defendant from mentioning Dr. Denney’s anticipated testimony during opening statement, but leaving open the door to Dr. Denney’s testimony if the court determined it was relevant following the prosecution’s case.

Defense counsel persisted, arguing that his “intention of calling Dr. Denn[e]y [wa]s not to question him regarding recommendations that were issued in 1998 or 2001, but to render opinions on medical issues concerning [defendant’s] history, her care, her treatment, and the usefulness, how marijuana fits into her treatment.” Defense counsel further represented that Dr. Denney was “certainly . . . in a position to answer medical questions concerning the scope of medical marijuana that she needs.”

The prosecutor countered that defendant’s “treating physician of the time [Dr. Swenson] is subpoenaed as a witness and will be testifying. He can testify as to her medical condition at the time of the events, and the drugs, the prescriptions she had. And whether or not the marijuana would be effective.”

The court then noted that Dr. Swenson’s testimony “itself may give grounds to allow Dr. Denn[e]y’s testimony,” and the court reiterated that Dr. Denney’s testimony “may be admissible” “after the District Attorney has introduced her case, which includes” Dr. Swenson.

Defense counsel said, “Well, I guess I don’t have a problem with that plan at this point,” but he expressed concern about potentially being prohibited from having his own medical expert. He raised the possibility of continuing the trial and subpoenaing Dr. Mikuriya in place of Dr. Denney, but the court emphatically stated the trial was “not going to be continued” because of how long the case had been pending. With the understanding that the court was not precluding Dr. Denney from testifying, but simply “reserv[ing] the issue of his testimony,” defense counsel stated he was “ready to move on.”

Later, before testimony began, the parties stipulated that Dr. Mikuriya’s written medical marijuana recommendation from March 2001 would be admitted into evidence. Based on that stipulation, the court determined defendant could present her medical marijuana defense to the jury. The prosecutor asked whether the stipulation had any affect on the court’s decision regarding Dr. Denney’s testimony, and defense counsel asserted, “there shouldn’t be any change regarding that because Dr. Denn[e]y’s main role of testifying will be the amount of marijuana necessary to -- it may not be necessary once we hear from Dr. Swenson, but we don’t know that. So I propose we continue with your previous ruling.” The court agreed.

In her opening statement, the prosecutor contended the evidence would show that “defendant was engaged in the growing and cultivation of marijuana on a grander scale, for the purpose of sales of marijuana, over and above her medical recommendation, in violation of the law.” The prosecutor then offered evidence to show that defendant used as much as an ounce of marijuana a week (which would total three and one-quarter pounds in a year),^[4] but was growing enough plants to yield 15 pounds or more of marijuana buds.^[5]

As part of the prosecution’s case, Dr. Richard Erick Swenson testified that he had been defendant’s physician since November 2000. Defendant was seeing Dr. Swenson for chronic back pain, and at some point during their relationship they had discussions about medical marijuana. Dr. Swenson believes marijuana helps in controlling chronic pain, but he does not prescribe it. On cross-examination, Dr. Swenson testified he could not express an opinion as to how much medical marijuana defendant should be using.

After the close of the prosecution’s case, Dr. Denney appeared at trial for the defense. The prosecutor renewed her objection to his testimony “as being cumulative . . . to Dr. Swenson” and as “irrelevant.” Defense counsel made the following offer of proof: “Your Honor, we have asked for the testimony of Dr. Denn[e]y because he has had a special study and emphasis on the medical uses of cannabis. He can testify as to the general medical issues concerning the use of cannabis. We think that his testimony would be helpful to the jury. We understand that Dr. Swenson covered a lot of the specific medical issues this morning. But as far as expert testimony on the use in general of medical marijuana, he would be helpful.”

The trial court precluded Dr. Denney from testifying, stating, “[I] ruled in chambers and I am going to follow my rulings that it appears to me that it’s cumulative because Dr. Swenson covered it, in my opinion, adequately and -- more than adequately and that it’s not necessary that Dr. Denney testify on the subjects that you have covered and mentioned. I have ruled it would be cumulative and it’s post 16 months or so after the incident, but I’m granting the D.A.’s motion without prejudice to you renewing your request at a later time if you deem it wise.” Defendant did not again seek to offer Dr. Denney’s testimony.

On appeal, defendant contends the trial court erred and violated various of her constitutional rights in precluding Dr. Denney from testifying. Specifically, defendant contends the trial court should have allowed Dr. Denney to “testify about how much marijuana [she] needed at the time of her arrest and the year following” because Dr. Swenson “had no idea how much [defendant] needed to use,” and thus Dr. Denney’s proposed testimony was neither irrelevant nor cumulative. Defendant asserts “[i]t was critical for [her] to offer expert testimony from Dr. Denney that an ounce, or more, of medical marijuana each week was medically necessary for [her] to use.”

To the extent defendant’s argument rests on state law, it runs afoul of Evidence Code section 354. That statute provides as follows: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; (b) The rulings of the court made compliance with subdivision (a) futile; or (c) The evidence was sought by questions asked during cross-examination or recross-examination.”

On the record before us, “the rule requiring a specific offer of proof in order to preserve an evidentiary ruling for appeal comes into play. [Citation.] An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53, italics added.)

Here, defendant’s offers of proof as to what Dr. Denney’s testimony would be were patently insufficient to show error in the trial court’s exclusion of his testimony, let alone prejudice resulting to defendant from the exclusion of his testimony.

Before trial, defense counsel suggested Dr. Denney would testify about what defendant’s “medical needs” were at the time of her arrest and “the scope of medical marijuana that she needs.” That offer of proof did nothing more than identify the “issue” that Dr. Denney’s testimony would address; it did not “set forth the actual evidence to be produced.” (People v. Schmies, supra, 44 Cal.App.4th at p. 53.) In other words, defense counsel did not tell the trial court (as defendant now suggests on appeal) that Dr. Denney would testify “an ounce, or more, of medical marijuana each week was medically necessary for [defendant] to use.” Indeed, based on defendant’s pretrial offer of proof (and the rest of the record, for that matter), we have no idea what Dr. Denney thought defendant’s medical need for marijuana actually was, either at the time of her arrest or at any other time. Thus, we have no basis for determining whether the exclusion of Dr. Denney’s testimony was erroneous or, if so, whether the exclusion of that testimony was prejudicial to defendant. Under these circumstances, defendant’s pretrial offer of proof as to Dr. Denney’s proposed testimony was plainly insufficient to preserve her claim of error for appellate review.

Defendant’s offer of proof during the trial was also insufficient. When faced with the prosecutor’s renewed objection to Dr. Denney testifying, defense counsel asserted the doctor could “testify as to the general medical issues concerning the use of cannabis” and “on the use in general of medical marijuana, he would be helpful.” He did not assert Dr. Denney would testify about defendant’s need for medical marijuana, let alone describe the specific testimony Dr. Denney would offer on that issue.

Without an offer of proof as to the actual testimony Dr. Denney would have provided on defendant’s need for medical marijuana, we cannot conclude the trial court erred in excluding Dr. Denney’s testimony, let alone that the exclusion of that testimony resulted in a miscarriage of justice.

Framing her argument in terms of a violation of her federal and state constitutional rights does not assist defendant. Without knowing what Dr. Denney’s testimony would have been, we cannot say the trial court’s exclusion of that testimony denied defendant her rights to a fair trial, to present a defense, and to confront witnesses against her. Accordingly, defendant’s claim of error under both state and federal law fails.

II

Limitation On Conrad’s Testimony

During defendant’s case, in the midst of an unreported discussion that was occurring outside the presence of the jury, the court began recording the discussion. The discussion apparently had to do with the scope of the proposed testimony of an expert for the defense, because the court started off by stating that it was going to preclude the witness from testifying about what “other communities allow” or the “rules and regulations” adopted by other communities -- apparently regarding medical marijuana usage. Defense counsel asked whether “the expert [could] be allowed to testify not as to what guidelines [are] in other communities but what his expert experience is concerning average uses or typical uses and that sort of thing of actual patients, not necessarily what is allowed in other communities? For example, the federal government has a medical marijuana program that they provide certain amounts of medical marijuana to various patients throughout the country, and we think that that evidence is probative as far as showing that this defendant is well within what is normally accepted . . . .”

The court stated that the expert’s “experience in dealing with other patients and their needs and what they use would be admissible to showing that she is acting reasonably under the circumstances,” but the court refused to allow the witness to “go[] into the federal guidelines or the state guidelines which were not in effect at that time.”

Defense counsel explained he was not seeking to elicit testimony about any federal guidelines, and in fact he did not think there even were any guidelines about how much marijuana would be provided to each patient. Instead, he argued, he wanted the expert to be able to testify about the average and typical amounts of marijuana the federal government actually gives to patients.

The prosecutor opposed such testimony, apparently on the ground that the medical marijuana defense applies only to what the defendant actually needs. Defense counsel agreed, but argued, “the evidence is that the amount that Dr. Swenson testified to is not fixed in grams or ounces or pounds. He is supporting what she basically needs for her use. And if we can show what is typical of someone being treated for chronic pain throughout the country or the world and she is well within that amount, I think there is some probative value that she is not exceeding the reasonable use.”

The prosecutor argued that the amount of marijuana used by other people was irrelevant, but the trial court disagreed, stating that it would allow defendant’s expert to testify about “what other people do and what has been treated as a reasonable amount for their use,” but the court would not allow any reference to “federal guidelines or what the feds do” or “what this federal dispensary allows.”

Subsequently, defendant called Christopher Conrad to testify as a cannabis expert. Conrad testified that through “lots of conversation and observations and then calculations,” he had determined that persons with chronic pain who use marijuana might smoke anywhere from about 12 ounces to 12 pounds of marijuana per year.

On appeal, defendant contends the trial court erred in refusing to allow Conrad to testify “that the average amounts of marijuana used by other medical marijuana patients were in the range of what the federal government gave to certain medical marijuana patients.” Again, however, this argument runs afoul of Evidence Code section 354. Even most generously construed in defendant’s favor, her offer of proof regarding Conrad’s testimony addressed only the issue about which she wanted Conrad to testify -- that is, the typical amount of marijuana the federal government gives to patients in its medical marijuana program; it did not set forth the actual evidence to be produced -- that is, Conrad’s anticipated testimony of what that amount was. Absent an offer of proof of the actual amount Conrad would have testified the federal government typically supplies to medical marijuana patients, we cannot determine whether the trial court erred in precluding that testimony, or whether such error (if it occurred) was prejudicial. Accordingly, defendant has failed to show the trial court erred in limiting Conrad’s testimony.

III

Fines And Fees

In the presentence report, the probation officer recommended defendant pay: (1) a $600 restitution fine (all but $200 stayed) pursuant to subdivision (m) of Penal Code section 1202.4 (with a $35 administrative fee if paid in installments); (2) a $20 administrative processing fee pursuant to subdivision (l) of that statute; (3) a $600 probation revocation fine (suspended) pursuant to Penal Code section 1202.44; (4) $340 in reimbursement to the probation department for the presentence report (with a $35 administrative fee if paid in installments); (5) probation supervision fees in an amount not to exceed $25 per month; (6) a $148 booking fee; (7) “a Criminalistic Lab fee pursuant to 11372.5(a) of the Health and Safety Code in the sum of $160.00 to include penalty assessment“; (8) “a drug program fee pursuant to 11372.7(a) of the Health and Safety Code in the sum of $160.00 to include penalty assessment”; (9) a $20 court security fee; and (10) reimbursement of appointed counsel fees. The probation officer further recommended defendant pay all fees and costs at a rate of not less than $50 per month.

At the sentencing hearing, defendant testified she receives $730 per month in “S.S.I.,” from which she has to pay all of her living expenses. She further testified that every month she pays $352 in rent, $125 for power, $40 for a cable connection, and $200 for “food and medical and household miscellaneous things” -- for a total of $717 in monthly expenses.

On cross-examination, the prosecutor elicited that defendant’s electric bill included power used to grow marijuana plants indoors. Defendant also has someone who lives with her part-time, but he has no income and does not pay any of the bills.

Defense counsel argued that “regarding the financial obligations that [defendant] may have with the fines, and so forth, that she simply does not have the ability to pay, and to order her to pay is going to put her in an impossible situation which is only going to set her up for failure given the level of her income, and any living expenses at all will certainly eat that up and leave nothing.”

The prosecutor complained that “[s]he has someone who lives with her part time who does not work, so, she is expending her money on someone who is essentially living off of her, freeloading. That money could be better used in paying her fees and fines, which, obviously, she is able to do because she . . . finished her probation in Placer County. . . . [I]f she was able to complete that probation, then she was able to pay the fines and fees.” The prosecutor also argued that “[h]er electric bill goes to pay for plants that are in excess of her amount.”

The court ordered that, as a condition of probation, defendant was to pay the fines and fees the probation officer recommended (with the exception of the two administrative fees for installment payments). In addition, based on defense counsel’s recollection that he had received a payment of approximately $3,000, the court ordered defendant to pay $3,000 to the county for her appointed counsel. The court then ordered “that all of the financial commitments be paid in minimum $20 a month installments.” Finally, at the close of the hearing, the court stated the following: “I will make a finding that the defendant currently does not have the ability to reimburse the county for the $3,000 appointed counsel fee, the remaining balance; however, I find that she does have the ability of the $20 amount -- $20 a month amount, and we’ll review her financial status periodically to determine whether or not she can continue to make those payments.”

On appeal, defendant contends “[t]he imposition of many of these fines and fees was unlawful.” First, defendant contends the trial court erred in imposing a $160 criminal laboratory analysis fee, rather than the $135 fee the law allows. Second, because of the evidence of her inability to pay, defendant contends the trial court: (a) erred in imposing more than the $200 minimum mandatory fine under Penal Code section 1202.4; (b) erred in imposing any fees other than the $355 in mandatory fines and fees (the $200 restitution fine, the $135 criminal laboratory analysis fee, and the $20 security fee); and (c) abused its discretion in ordering her to pay more than $6 per month toward the $355 in mandatory fines and fees. Third, defendant contends the trial court erred in requiring her to pay $3,000 in appointed counsel fees because the court actually found she was unable to pay those fees.

A

Criminal Laboratory Analysis Fee

A person (like defendant) convicted of cultivating marijuana (Health & Saf. Code, § 11358), must pay a criminal laboratory analysis fee of $50 (Health & Saf. Code, § 11372.5, subd. (a)), plus penalty assessments of $50 pursuant to Penal Code section 1464 and $35 pursuant to Government Code section 76000. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1522.) That amounts to $135, which defendant contends is all the trial court was authorized to impose. In addition to the foregoing penalty assessments, however, two other surcharges are potentially applicable to the criminal laboratory analysis fee because defendant’s crime occurred in September 2003: (1) a 20 percent surcharge under Penal Code section 1465.7; and (2) a 50 percent penalty under Government Code section 70372. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-459.)

Because the trial court purported to impose a “crim lab fee . . . of . . . $160,” it appears the court may have included the 50 percent penalty under Government Code section 70372 ($135 plus $25 equals $160) but not included the 20 percent surcharge under Penal Code section 1465.7. We cannot be assured of this, however, because the trial court (following the lead of the probation officer) did not separately identify the criminal laboratory fee and the various surcharges and penalties assessed on that fee.

This was error. “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) A similar error occurred in the court’s imposition of a $160 drug program fee under Health and Safety Code section 11372.7.^[6] Accordingly, we will reverse the order granting probation and remand the case to the trial court to separately list, with the statutory basis, all fines, fees, and penalties imposed.

B

Ability To Pay

Under subdivision (a)(3) of Penal Code section 1202.4, “[t]he court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay . . . (A) A restitution fine in accordance with subdivision (b).” In relevant part, subdivision (b) of the statute provides as follows: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . .” Subdivision (c) of the statute provides that “[a] defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the . . . two hundred-dollar ($200) . . . minimum.” Under subdivision (d), “[i]n setting the amount of the fine pursuant to subdivision (b) in excess of the . . . two hundred-dollar ($200) . . . minimum, the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. . . . Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay.”

Ability to pay is also relevant to other fees the trial court imposed, specifically: (1) the $340 fee for preparation of the presentence report and probation supervision fees not to exceed $25 per month (see Pen. Code, § 1203.1b); (2) the $148 “booking fee” (criminal justice administration fee) (see Gov. Code, § 29550.2, subd. (a)); and (3) the $160 drug program fee (see Health & Saf. Code, § 11372.7, subd. (b)).

Defendant contends “[t]he court erred in imposing more than the minimum mandatory fine of $200 under Penal Code section 1202.4, because of [her] inability to pay.” She also contends the court erred in imposing other fees identified above for the same reason.

We disagree. Defendant does not dispute that the trial court has discretion to determine a defendant’s ability to pay a particular fee or fine. A trial court abuses its discretion only when its ruling falls outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th 690, 714.) Defendant has not shown that the trial court’s ruling here did so. Although the total amount of the fees and fines imposed on defendant may appear severe in light of her testimony that she receives only $730 in income per month, the court mitigated this severity by allowing defendant to pay all of her financial commitments in monthly installments of no less than $20 per month. By defendant’s own evidence, her income exceeds her living expenses by $13 per month. Moreover, absent further evidence, the trial court was not bound to conclude defendant could not trim $7 dollars off her monthly expenses in order to pay $20 per month toward the fees and fines imposed on her. Additionally, the court committed to “review[ing defendant’s] financial status periodically to determine whether or not she c[ould] continue to make those payments.” Under these circumstances, no abuse of discretion has been shown.

C

Appointed Counsel Fees

Under Penal Code section 987.8, subdivision (d), “[i]f the court determines that the defendant has the present ability to pay all or a part of the cost [of appointed counsel], the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.”

Defendant complains that the trial court ordered her to pay $3,000 in appointed counsel fees even though the court “found she did not have the ability to pay her attorney fees.” According to defendant, “There is nothing in the statute or common sense that permits the court to impose attorney fees after finding an inability to pay, when the imposition of those fees is dependent upon the ability to pay, which [she] clearly did not have, as the court found.”

As we have noted, in its closing comment at the sentencing hearing the trial court stated as follows: “I will make a finding that the defendant currently does not have the ability to reimburse the county for the $3,000 appointed counsel fee, the remaining balance; however, I find that she does have the ability of the $20 amount -- $20 a month amount, and we’ll review her financial status periodically to determine whether or not she can continue to make those payments.” This statement is susceptible of two interpretations. On one hand, the trial court may have been finding that defendant did not have the ability to pay the $3,000 counsel fee, but did have the ability to pay $20 per month toward the other fees and fines the court imposed on her (i.e., the other fines and fees were “the remaining balance”). On the other hand, the trial court may have been finding that defendant did not have the ability to pay the $3,000 counsel fees all at once, but did have the ability to make payments toward that fee -- along with all of her other fees and fines -- of $20 per month.

Because we are unable to discern which of these interpretations is the correct one, and because we have to remand the case to the trial court anyway, we will direct the trial court on remand to properly determine, pursuant to Penal Code section 987.8, whether defendant has the present ability to pay all or part of the cost of appointed counsel and, if so, to set the amount to be reimbursed.

IV

Custody Credits

Defendant contends she was entitled to three days of custody credit for time spent in jail following her arrest, which the trial court failed to give her. The People concede the error. Accordingly, on remand, the trial court is directed to give those credits to defendant.

DISPOSITION

The case is remanded to the trial court with directions: (1) to separately list, with the statutory basis, all fines, fees, and penalties imposed; (2) to determine, pursuant to Penal Code section 987.8, whether defendant has the present ability to pay all or part of the cost of appointed counsel and, if so, to set the amount to be reimbursed and order defendant to pay that sum in the manner the court believes is reasonable and compatible with defendant’s financial ability; and (3) to grant defendant three days of custody credit. In all other respects, the judgment is affirmed.

ROBIE , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

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^[1] Because no further recitation of the factual or procedural background of this case is necessary -- except as set forth below in connection with the specific issues raised on appeal -- we will proceed directly to the discussion of those issues.

^[2] The prosecution’s motion did not actually contain a request for relief, but it can be gleaned from the motion that preclusion of Dr. Denney’s testimony was the prosecution’s goal.

^[3] It does not appear from the record why defendant could not have called Dr. Denney as her medical expert and called Dr. Mikuriya solely as a percipient witness to testify about the medical marijuana recommendations he gave defendant.

^[4] One officer testified that defendant said she smoked one to two marijuana cigarettes a day, and the officer later estimated the amount of marijuana in each cigarette at one-half gram. According to another officer, there are about 27 grams in a “street ounce.” Thus, at a gram a day, defendant would use approximately 13 and one-half ounces of marijuana per year. A third officer testified, however, that defendant said she smoked about an ounce of marijuana a week. At that rate, defendant would use approximately 52 ounces (or three and one-quarter pounds) of marijuana per year.

^[5] One of the officers who testified identified 27 plants that belonged to defendant and estimated each would yield either half a pound or three quarters of a pound of marijuana buds.

^[6] That statute requires a “drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense.” (Health & Saf. Code, § 11372.7, subd. (a).)