P. v. Rosillo

Filed 2/14/07  P. v. Rosillo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                                       H030349

                        Plaintiff and Respondent,                             (Santa Clara County

                                                                                                 Superior Court

            v.                                                                                 No. CC510282)

PAUL LUNE ROSILLO,

                        Defendant and Appellant.

_____________________________________/

            As part of a negotiated guilty plea, defendant Paul Lune Rosillo pleaded guilty to possession of methamphetamine for sale (Pen. Code, § 11378) and to being under the influence of methamphetamine (Pen. Code, § 11550).[1]  He also admitted three prior convictions under Health & Safety Code sections 11370.2 and 11370, subdivisions (a) and (c), four prior prison terms (§ 667.5, subd. (b)), and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).  The trial court sentenced defendant to five years in prison for the possession charge and imposed a concurrent county jail term of 90 days for being under the influence, a misdemeanor.  The court also imposed several fines and fees, including $200 in attorney's fees.  Defendant appeals the attorney's fees order.  We find insufficient evidence of defendant's ability to pay the fees, and strike the order.  We affirm the judgment as modified.

I.     Background[2]

            On November 4, 2005, a San Jose police officer approached defendant as he was leaving a residence that was under police surveillance.  The officer searched defendant and found a white crystalline substance in his pocket.  The officer also observed that defendant appeared to be under the influence of a stimulant.  Defendant admitted to recent use of an illegal substance, and a urine test was presumptively positive for methamphetamine. 

            Officers then searched the residence, including a bedroom determined to be defendant's.  In the bedroom, officers found five bindles and one baggie of suspected methamphetamine and a glass pipe commonly used to ingest methamphetamine.  The officers also found $108 in cash and indicia of drug sales, including a cell phone, empty baggies, and baggies that had been cut to make bindles. 

II.   Discussion

            Defendant challenges the trial court's order directing him to pay $200 in attorney's fees for the cost of his appointed counsel.  Defendant contends, and the People concede, that there is insufficient evidence to support the court's implicit finding that defendant had the present ability to pay $200 in fees.  We agree with the parties and strike the attorney's fees order. 

            Penal Code section 987.8, subdivision (b) provides, in relevant part, that â€