Opinion
H035710
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID GEORGE DAVIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CC800408)
In this appeal, appellant David Davis challenges the imposition of a Penal Code section 1202.5 fine and a criminal justice administration fee, both of which were imposed after he pleaded guilty to one misdemeanor count of receiving stolen property (Pen. Code, § 496, subd. (a), count one), one misdemeanor count of possession of drug paraphernalia (Health & Saf. Code, § 11364, count two), first degree burglary (Pen. Code, §§ 459, 460, subd. (a), count three), reckless driving while evading a police officer (Veh. Code, § 2800.1, count four), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1), count five).
At the same time as he entered his guilty pleas, appellant admitted that he had suffered six prior felony convictions within the meaning of Penal Code section 667, subdivisions (b)-(i), and four prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a). Appellant admitted the prior conviction allegations on the understanding that the court would consider a motion to strike the priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On May 28, 2010, the court denied the Romero motion. Thereafter, the court proceeded to sentence appellant to an indeterminate prison term of 25 years to life on count three, consecutive to a determinate term of 20 years for the four prior serious felony convictions. The court imposed a second 25 years-to-life term for count four to run concurrently and six-month county jail sentences for the remaining three misdemeanor counts, which the court deemed served.
In addition to imposing a restitution fine of $10,000 and ordering that appellant pay $6,550 in direct victim restitution, among other things, the court imposed a $10 crime prevention fine pursuant to Penal Code section 1202.5, plus a penalty assessment, and a $129.75 criminal justice administration fee payable to the City of San Jose.
Appellant filed a timely notice of appeal.
On appeal, he challenges only the imposition of the crime prevention fine (Pen. Code, § 1202.5) and the criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2). For reasons that follow, we affirm the judgment.
Facts
The facts underlying the different counts are not relevant to this appeal.
Discussion
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. 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 that "[i]f 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 "[s]ince 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 this court's 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 (§ 1203.1b), and $100 attorney fee (§ 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 fees were 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 fees, 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. As noted, 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 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 "A $129.75 Criminal Justice Administration fee . . . payable to the City of San Jose . . . ." The court specified that it was imposing the fee under Government Code sections 29550, 29550.1 and 29550.2.
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.) The record does not directly reveal which agency arrested appellant, but 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." (Italics added.) 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 challenge. Rather, appellant is asserting an equal protection challenge. Respondent claims that because appellant failed to object on this ground below, appellant has forfeited this issue on appeal.
In anticipation of respondent's forfeiture argument, appellant contends that we have discretion to decide this case on the merits because it presents a pure question of law. Appellant cites to In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) to support this assertion.
Under Sheena K., a juvenile's failure to object at sentencing does not forfeit a claim that a probation condition is unconstitutionally vague and overbroad if that claim presents "a pure question of law, easily remediable on appeal by modification of the condition." (Id. at p. 888.) Here, appellant is not challenging a condition of probation on due process grounds, but rather the trial court's imposition of a booking fee on equal protection grounds, which does involve some review of the factual record developed in the trial court.
More importantly, 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.) Simply put, 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. 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 minimal booking fee he will be able so to do. (See People v. Frye (1994) 21 Cal.App.4th 1483, 14861487.) 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. Thus, in the face of a record that does not affirmatively show that appellant will not be able to work in prison we must assume that appellant will have the ability to pay and is not aggrieved by the statute.
If appellant has any latent impediments such that he cannot work in prison, he would be in the best position to know of and develop that information in the trial court.
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.
Accordingly, we must conclude that appellant does not have standing to raise this equal protection challenge to section 29550.1.
Disposition
The judgment is affirmed.
ELLA, J. WE CONCUR: RUSHING, P. J. PREMO, J.