Opinion
H035675
09-21-2011
THE PEOPLE, Plaintiff and Respondent, v. MARIO ANGEL AVALOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. Nos. CC814455, CC826755)
In this appeal, appellant Mario Avalos challenges the imposition of a Penal Code section 1202.5 fine and a criminal justice administration fee or booking fee, both of which were imposed after he pleaded no contest to one count of second degree burglary and one count of assault by means of force likely to produce great bodily injury. For reasons that follow, we affirm the judgment.
Appellant has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, appellant contends that his due process rights under the Fourteenth Amendment to the United States Constitution and his state law rights under Bunnell v. Superior Court (1975) 13 Cal.3d 592, were violated when the court misadvised him about the maximum length of time he could receive as a result of his no contest pleas. We have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
Facts and Proceedings Below
An information filed on November 19, 2008, charged appellant with one felony count of second degree burglary (Pen. Code, §§ 459-460, subd. (b)) in Santa Clara County Superior Court case number CC814455. A second information filed on March 19, 2009, charged appellant with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) in Santa Clara County Superior Court case number CC826755. Both informations alleged that appellant had two prior strike convictions within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12. In addition, both informations alleged that appellant had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On April 14, 2009, appellant pleaded no contest to both counts and admitted all allegations. On April 14, 2010, appellant filed a motion to strike one or more of his prior strikes. On May 6, 2010, the court denied the motion and sentenced appellant to 50 years to life, consisting of two 25 years-to-life terms. The court struck the five prison priors. The court granted appellant presentence credit and ordered him to pay restitution and various fines and fees.
Appellant filed a timely notice of appeal based on the sentence or matters occurring after the entry of plea. Facts Underlying the Burglary Count
Thereafter, appellant in pro per, filed an amended notice of appeal and sought and received a certificate of probable cause. The grounds upon which appellant sought a certificate of probable cause are not before us in this appeal.
These facts are taken from the preliminary hearing in CC814455.
On the morning of August 6, 2008, San Jose Police Officer Dianne Winn received a report of a burglary at the Evergreen Optometry shop. Officer Winn went to the shop and interviewed Danelle Gonzales, who had been the first employee to arrive that morning. Gonzales told Officer Winn that display cases had been broken into and that approximately 43 pairs of sunglasses worth about $4,848 and a laptop computer had been taken. It appeared that the burglar had broken a window with a brick in order to gain entry to the shop, leaving a small amount of glass in the windowpane. Officer Winn contacted Mindy Trinh, the owner of the store. Trinh told her that shop had closed at about 10 p.m. the previous night. On the floor inside the shop, Officer Winn found a wallet with a California identification card and credit card belonging to appellant, as well as a parole officer's business card. There was no record of appellant being a customer of the shop.
On August 6, 2008, Officer Winn interviewed appellant at his house. Appellant did not have his shirt on, which allowed Officer Winn to see fresh parallel scratch marks on his arms and shoulders. The officer believed that the scratches could have been caused by appellant squeezing through the broken shop window.
According to the probation officer's report, appellant said that he had gone out drinking with friends on the night of August 5th and they spontaneously ended up breaking into the store. Appellant denied receiving any of the stolen property. However, after he was arrested he was able to obtain the stolen laptop and glasses from the other burglary participants and return them to the store owner. Facts Underlying the Assault Count
These facts are taken from the preliminary hearing transcript in CC826755
On November 13, 2008, Correctional Officer Nina Teruel was working in module 5C at the Santa Clara County main jail. When she overheard an argument and a chair drop, she looked up to see appellant standing over another inmate, Luis Sanchez. Appellant was punching Sanchez with a closed fist. Officer Teruel saw Sanchez in a fetal position on the floor attempting to block appellant's blows. Sanchez suffered three lacerations to his face and head, one of which required stitches.
Sanchez told Officer Teruel that he was using the telephone when appellant came up to him and demanded to use the phone to make an important call. When Sanchez refused, appellant struck him and kicked him on the face and head. Inmates that were interviewed by Officer Teruel stated that appellant was the aggressor in the fight.
According to the probation officer's report, appellant said that Sanchez started the fight and that he acted in self-defense.
Discussion
At the May 6, 2010 sentencing hearing, the court ordered appellant to pay $4,828 in direct restitution to Evergreen Optometry shop; and the court imposed a $10,000 restitution fund fine, but suspended all but $200 of that amount. In addition, the court ordered appellant to pay a criminal justice administration fee of $129.75 to the City of San Jose and a $10 fine plus penalty assessments pursuant to Penal Code section 1202.5.
Appellant argues that this court must strike the criminal justice administration fee and the $10 fine because there was insufficient evidence of his ability to pay. Appellant asserts that the only information that was before the court regarding appellant's financial situation were statements in the probation officer's report that showed that appellant had not been employed since 2001, was unemployed prior to his arrest on August 7, 2008, and had been incarcerated since that date.
Penal Code Section 1202.5 Fine
Penal Code section 1202.5, subdivision (a), requires that in any case where a defendant is convicted of, among other crimes, burglary, the trial court "shall" order a $10 fine "in addition to any other penalty or fine imposed." Further, the statute provides: "If the court determines that the defendant has the ability to pay all or part of the fine," it shall set the amount and order him to pay the ordered sum "in the manner . . . the court believes reasonable and compatible with the defendant's financial ability." The final sentence requires the trial court, in making that determination, to consider the amount of other fines and restitution imposed.
Appellant has forfeited any error in the imposition of this fine.
When a statute mandating imposition of a fine requires a consideration of the ability to pay, the defendant must raise the issue in the trial court by objecting or demanding a hearing, especially when the probation report recommends imposition of such a fine, as does the probation officer's report in this case. If he fails so to do, he forfeits the issue on appeal. (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.) In People v. Crittle (2007) 154 Cal.App.4th 368 (Crittle), the foregoing principle was specifically at issue in the context of a Penal Code section 1202.5 fine. The Crittle court held that "Since defendant did not raise the issue in the trial court, we reject his contention that the fines must be reversed because the court did not make a finding of defendant's ability to pay them, and nothing in the record shows he had the ability to pay."(Id. at p. 371.)
Appellant claims that we should rely on our decision in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco)to find that he has not forfeited this issue. Appellant's reliance on Pacheco is misplaced.
In Pacheco, the defendant failed to object to certain probation conditions below. Among other issues, he challenged on appeal a $259.50 criminal justice administration fee (Gov. Code, § 29550, subd. (c) [if the arresting agency was the county] or Gov. Code, § 29550.2 [if the arresting agency was other specified arresting agencies] ), $64 per month probation fee (Pen. Code, § 1203.1b), and $100 attorney fee (Pen. Code, § 987.8). "His challenge to all three fines or fees [was] based on the court having failed to determine his ability to pay them." (Pacheco, supra, 187 Cal.App.4th at p. 1396.)
In this context, we relied on two attorney fees cases (People v. Viray (2005) 134 Cal.App.4th 1186; People v. Lopez (2005) 129 Cal.App.4th 1508) and held that "claims . . . based on the insufficiency of the evidence . . . do not require assertion in the court below to be preserved on appeal." (Pacheco, supra, 187 Cal.App.4th at p. 1397.)
Nevertheless, we pointed out that the criminal justice administration fee was to cover "actual administrative costs" (Pacheco, supra, 187 Cal.App.4th at p. 1400); the probation fee was to cover "reasonable cost" of services and supervision after referral of the defendant to the probation officer for inquiry into ability to pay and notice of right to counsel and court hearing on ability to pay-defendant must waive right to a court determination (id. at pp. 1400-1401); and the attorney fee was to cover " 'all or a portion of the cost' " (id. at p. 1398) after notice and hearing. We held that as to the criminal justice administration fee, no evidence supported what were the "actual administrative costs" (id. at p. 1400); as to the probation fee no evidence supported that the "statutory procedure" for determining or waiving ability to pay was followed and the costs "cannot be made a condition of probation" (id. at p. 1401); and as to the attorney fee, no evidence supported that the "statutory directive" (id. at p. 1398) was met and "an order directing payment of attorney fees" may not be made a condition of probation (id. at p. 1399). Thus, Pacheco is readily distinguishable.
The statute in this case imposes a definitive fee—"shall order . . . a fine of ten dollars"—rather than an open-ended fee. Accordingly, appellant was on notice that the theft fine was at issue and he must make an inability-to-pay objection to its imposition.
Further, the fees in Pacheco were independently erroneous regardless of whether substantial evidence supported an ability to pay. No evidence supported the amount of the administrative fee and the statutory procedures for imposing the probation and attorney fees were not followed. Moreover, the probation and attorney fees were erroneously imposed as conditions of probation.
Accordingly, with regard to the $10 fine and penalty assessments imposed, we follow Crittle rather than Pacheco and find that appellant has forfeited this issue on appeal for lack of an objection below.
Criminal Justice Administration Fee
At sentencing, the probation department recommended that a "$129.75 Criminal Justice Administration fee to [the] City of San Jose be imposed pursuant to Government Code [sections] 29550, 29550.1 and 29550.2." As noted, the court adopted that recommendation and ordered "$129.75 Criminal Justice Administration Fee to the City of San Jose." The court did not specify upon which code section it had relied. Again, appellant maintains that this court should strike the fee because there was insufficient evidence of his ability to pay.
As noted, in Pacheco, supra, 187 Cal.App.4th 1392, this court held that "claims . . . based on the insufficiency of the evidence . . . do not require assertion in the court below to be preserved on appeal." (Id. at p. 1397.)
In Pacheco, this court specifically discussed the criminal justice administration or "booking" fee. (Pacheco, supra, 187 Cal.App.4th at pp. 1399-1400.) We explained "Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing arrested persons into a county jail. To some degree, they vary based on the identity of the arresting agency. Arrests made by a 'city, special district, school district, community college district, college, university or other local arresting agency' are governed by Government Code sections 29550, subdivision (a)(1) and 29550.1. Arrests made by a county are governed by Government Code section 29550, subdivision (c) and those made by 'any governmental entity not specified in Section 29550 or 29550.1' are governed by Government Code section 29550.2, subdivision (a)." (Id. at p. 1399, fn. 6.) We can infer from the record that appellant was arrested by San Jose police officers, and the fee was to go to the City of San Jose.
Appellant assumes that the criminal justice administration fee was imposed pursuant to Government Code section 29550.1. Appellant concedes, however, that there is no requirement of an ability to pay in that code section. Appellant is correct. Specifically, section 29550.1 provides, "Any city, special district, school district, community college district, college, university, or other local arresting agency whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. 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. . . ." Nothing in this statute requires that the court make a determination of the defendant's ability to pay.
All undesignated section references are to the Government Code.
Appellant argues, however, that the statute should be interpreted as containing an implicit ability to pay requirement because corresponding provisions of the statutory scheme require findings of a defendant's ability to pay and the constitutional principles of equal protection prohibit arbitrary distinctions among criminal defendants.
Appellant's challenge to the criminal justice administration fee is not a sufficiency of the evidence argument. Rather, appellant is asserting an equal protection challenge. Respondent asserts that because appellant failed to object on this ground below, appellant has forfeited this issue on appeal.
In response, appellant asserts that we should decide this case on the merits because it presents a pure question of law based on undisputed facts. Appellant cites to People v. Yeoman (2003) 31 Cal.4th 93, 118 (Yeoman), to support this assertion.
In Yeoman, for the first time on appeal, the defendant asserted a claim under Batson v. Kentucky (1986) 476 U.S. 79, in which the high court held that the equal protection clause of the Fourteenth Amendment to the United States Constitution forbids prosecutors to exclude prospective jurors on account of their race. However, in the trial court, the defendant cited only People v. Wheeler (1978) 22 Cal.3d 258, which interpreted the representative cross-section requirement of article I, section 16 of the California Constitution. The People contended that the defendant had forfeited his federal claim by failing to raise it below. (Yeoman, supra, 31 Cal.4th at p. 117.) The Yeoman court concluded that "[a]s a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal." (Id. at. p. 117, italics added.) That is not the case here.
Notwithstanding Yeoman, the problem with appellant's equal protection challenge is that by failing to raise this issue below on equal protection grounds, he has failed to make a record that affirmatively shows that he is aggrieved by the law he attacks. In other words, he has failed to make a record that shows that he has standing to raise an equal protection challenge to section 29550.1. " 'One who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation.' [Citation.]" (People v. Cortez (1992) 6 Cal.App.4th 1202, 1212, italics added.) The record must contain evidence showing that appellant is actually aggrieved by the law he attacks. (People v. Black (1941) 45 Cal.App.2d 87, 96.)
To be aggrieved by the law he challenges, appellant must show that he does not have the ability to pay the fee, but that it will be imposed regardless of this inability to pay. Appellant is serving a life term in prison. Since the record does not affirmatively show that he will not be able to obtain prison employment, we must assume that for purposes of the booking fee he will be able to obtain prison employment. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1486-1487.) Penal Code section 2700 provides, in relevant part, "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." This section requires that prisoners who perform assigned work be compensated. With nothing developed below that shows that appellant is unable to work in prison, we must assume that appellant will have the ability to pay the minimal booking fee and therefore is not aggrieved by the statute.
It may take appellant a long time to pay off the booking fee, but that is immaterial. (People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) There is no time limit within which the booking fee needs to be paid.
As a result, we conclude that appellant does not have standing to raise this equal protection challenge to section 29550.1. Consequently, we need not consider the merits of appellant's attempted challenge to section 29550.1 on equal protection grounds.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: PREMO, Acting P. J. LUCAS, J.
Judge of the Superior Court of Santa Clara County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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