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In People v. Almanza (2012) 207 Cal.App.4th 269, S204410, review granted September 26, 2012, Division Two of the Court of Appeal for the Fourth Appellate District disagreed with Pacheco to the extent that it can be interpreted as requiring an evidentiary hearing on the actual administrative costs.
Summary of this case from People v. PinkneyOpinion
No. E053366.
06-26-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALMANZA, Defendant and Appellant.
OPINION
[CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III.A.
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Anthony Almanza appeals from his conviction of carrying a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4); count 1) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2). Defendant contends the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5, and there was no substantial evidence to establish the amount of a booking fee or his ability to pay such fee under Government Code section 29550.2.
Penal Code former section 12020, subdivision (a)(4) was renumbered as Penal Code section 21310, effective January 1, 2011, operative January 1, 2012. (Stats. 2010, ch. 711, §§ 4, 6.)
II. FACTS AND PROCEDURAL BACKGROUND
In a patdown search on December 15, 2010, a police officer found a knife with a four-and-one-half-inch blade in defendant's pocket. Defendant appeared to be under the influence of a controlled substance, and a field test indicated he was under the influence. After his arrest, he admitted that he smoked methamphetamine the previous night.
Defendant moved to suppress the evidence obtained during the stop. The motion was heard at the preliminary hearing on February 24, 2011. After the court denied his motion to suppress evidence, defendant pleaded guilty to carrying a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4)) and being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a).) Defendant also admitted a prior prison term (Pen. Code, § 667.5, subd. (b).)
The trial court sentenced defendant to the low term of 16 months in prison for count 1 and ordered a concurrent 90-day term for count 2. The trial court struck the prison prior (Pen. Code, § 667.5, subd. (b)) and imposed various fines and fees, including a booking fee, or criminal justice administration fee, of $414.45.
Additional facts are set forth in the discussion of the issues to which they pertain. III. DISCUSSION
A. Denial of Motion to Suppress
See footnote, ante, page 269.
B. Booking Fee
Defendant contends there was no substantial evidence to establish the amount of a booking fee or his ability to pay such fee under Government Code section 29550.2.
1. Forfeiture
The People contend defendant has forfeited his challenge to the booking fee because he failed to object to the fee at sentencing. However, the People have addressed the issue on the merits and, because defendant has raised the alternative claim that his counsel was ineffective in failing to object to the fee, we will also reach the merits of the issue.
The issue whether a defendant forfeits a claim that he is unable to pay a booking fee by failing to object to the fee is currently pending in the California Supreme Court. ( People v. McCullough (2011) [ ], review granted June 29, 2011, S192513.)
2. Analysis
a. Ability to pay
(1) Defendant asserts that his booking fee was imposed under Government Code section 29550.2. That section applies to "[a]ny person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 ...." (Gov. Code, § 29550.2, subd. (a).) Government Code section 29550, subdivision (c) applies to persons arrested by a county officer or agent. Government Code section 29550.1 applies to a person arrested by an officer or agent of "[a]ny city, special district, school district, community college district, college, university, or other local arresting agency ...." Here, the record shows that a City of Hemet police officer arrested defendant. Thus, the booking fee must have been imposed under Government Code section 29550.1.
(2) Government Code section 29550.2, subdivision (a), on which defendant relies, provides, "If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the county for the criminal justice administration fee." (Italics added.) In contrast, Government Code section 29550.1 provides for payment of the criminal justice administration fee by a convicted person but omits the above italicized language. Thus, Government Code section 29550.1 does not require a finding of ability to pay.
Defendant also relies on Government Code section 29550, subdivision (d)(2) to support his argument that the trial court was required to find his ability to pay before imposing a booking fee. That section provides: "The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee ...." (Gov. Code, § 29550, subd. (d)(2), italics added.) On its face, the subparagraph is inapplicable: Defendant was not granted probation but was sentenced to state prison.
(3) We conclude the trial court was not required to find an ability to pay before imposing a booking fee under Government Code section 29550.1.
b. Amount of fee
Defendant further contends the booking fee was invalid because "there was no record, hearing, or substantial evidence establishing the actual administrative costs for booking."
(4) We reject defendant's argument. Government Code section 29550 does not contemplate an evidentiary showing in the trial court to determine the amount of the fee; rather, determination of the amount of the fee is directed toward the county imposing the fee: "The fee imposed by a county pursuant to this section shall not exceed the actual administrative costs, including applicable overhead costs as permitted by federal Circular A-87 standards, as defined in subdivision (d), incurred in booking or otherwise processing arrested persons. For the 2005-[20]06 fiscal year and each fiscal year thereafter, the fee imposed by a county pursuant to this subdivision shall not exceed one-half of the actual administrative costs, including applicable overhead costs as permitted by federal Circular A-87 standards, as defined in subdivision (d), incurred in booking or otherwise processing arrested persons...." (Gov. Code, § 29550, subd. (a)(1).) "Any increase in a fee charged pursuant to this section shall be adopted by a county prior to the beginning of its fiscal year and may be adopted only after the county has provided each city, special district, school district, community college district, college, or university 45 days written notice of a public meeting held pursuant to Section 54952.2 on the fee increase and the county has conducted the public meeting." (Gov. Code, § 29550, subd. (a)(2).) In addition, Government Code section 29550, subdivision (d) provides, "When the court has been notified in a manner specified by the court that a criminal justice administration fee is due the agency," the court may or shall impose the fee as specified in other subdivisions of that section. (Italics added.)
(5) The People have requested this court to take judicial notice of the Riverside County Board of Supervisors' minutes and recommendation for approval of an increase in the criminal justice administration fee. The request is granted. The trial court may properly take judicial notice of local ordinances and "the official resolutions, reports, and other official acts of a city." (Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027 ; see Evid. Code, § 452, subd. (b).) The People assert, based on those documents, that on September 28, 2010, the Riverside County Board of Supervisors approved an increase in the criminal justice administration fee to $414.45.
(6) We presume under Evidence Code section 664 that official duty has been complied with — in other words, that the trial court "has been notified in a manner specified by the court that a criminal justice administration fee is due the agency." (Gov. Code, § 29550, subd. (d).) No further showing was required.
We note that in People v. Pacheco (2010) 187 Cal.App.4th 1392 , on which defendant relies, the court remanded for further proceedings on the ground, among others, that a booking fee may not exceed actual costs of booking, and there was no evidence in the record of the actual administrative costs of the defendant's booking. (Id. at p. 1400.) We disagree with Pacheco to the extent it can be interpreted as requiring an evidentiary hearing on the actual administrative costs of booking. Such a requirement is inconsistent with Government Code section 29550, subdivisions (a), (c), and (d).
In summary, we find no error in the imposition of the booking fee. IV. DISPOSITION
The judgment is affirmed.
McKinster, J., and Miller, J., concurred.