Opinion
H036733
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. SILIVA PEIE TANGI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BB942425)
1. INTRODUCTION
Defendant Siliva Peie Tangi was convicted by no contest plea of nine counts of forcibly and lewdly touching his step-daughter, a female under the age of 14, during a five-year period. (Pen. Code, § 288, subd. (b)(1).) Pursuant to a plea agreement, 12 other charges of sex crimes against the same victim were dismissed, and defendant, then age 37, was sentenced to 64 years in prison, consisting of nine fully consecutive upper terms of six years. Without objection the court imposed a variety of fines and assessments that were recommended in the probation report in addition to the imposition of a criminal justice administration fee (CJA fee) of $129.75. (Gov. Code, § 29550.1.)
Unspecified section references are to the Government Code.
On appeal, defendant contends that imposing a CJA fee under section 29550.1 without considering his ability to pay violates equal protection. Further, he contends that if we determine that his trial counsel forfeited this contention, then he received ineffective assistance of counsel, as he lacks the ability to pay.
The probation report recommended that the CJA fee be paid to the City of Mountain View. The payee was not named in the court's oral order, the clerk's minutes, or the abstract of judgment. It is not disputed that defendant was arrested by Mountain View police officers.
Reviewing these contentions does not require any elaboration on defendant's crimes or the proceedings beyond what is contained in this introduction. For the reasons stated below, we will affirm the judgment after finding no violation of equal protection.
2. THE STATUTORY FRAMEWORK
Counties typically operate the jails in this state and bear the expense of providing for persons held there. (§ 29602; Pen. Code, §§ 4000, 4015; City of San Jose v. State of California (1996) 45 Cal.App.4th 1802, 1813-1814.)
The Government Code scheme at issue here authorizes counties to seek reimbursement for their actual administrative costs involved in arresting and booking or otherwise processing arrestees in county jails. If the county is the arresting agency, the county is authorized to charge the arrestee directly upon conviction of any crime related to the arrest (§ 29550, subd. (c)) as a form of "user" fee. (People v. Rivera (1998) 65 Cal.App.4th 705, 711.) The county may obtain a court order for payment. (§ 29550, subd. (d).)
Section 29550, subdivision (c) provides: "Any county whose officer or agent arrests a person is entitled to recover from the arrested person a criminal justice administration fee for administrative costs it incurs in conjunction with the arrest if the person is convicted of any criminal offense related to the arrest, whether or not it is the offense for which the person was originally booked. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, including applicable overhead costs incurred in booking or otherwise processing arrested persons."
If the arresting officer is an employee of a city, special district, school district, community college district, college, or university (a specified governmental entity), the county may impose a fee on that governmental entity limited to half of its administrative costs. (§ 29550, subd. (a)(1).) There are a number of situations in which counties are precluded from charging specified governmental entities at all. (§ 29550, subd. (b).) In turn, these specified governmental entities are authorized to recover these CJA fees from the arrestee upon conviction by court order. (§ 29950.1.)
Section 29550, subdivision (a)(1) provides in pertinent part: "Subject to subdivision (d) of Section 29551, a county may impose a fee upon a city, special district, school district, community college district, college, or university for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city, special district, school district, community college district, college, or university, where the arrested persons are brought to the county jail for booking or detention. 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 2005-06 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. A county may submit an invoice to a city, special district, school district, community college district, college, or university for these expenses incurred by the county on and after July 1, 1990. Counties shall fully disclose the costs allocated as federal Circular A-87 overhead."
Section 29550, subdivision (b), states: "The exemption of a local agency from the payment of a fee pursuant to this subdivision does not exempt the person arrested from the payment of fees for booking or other processing.
"(1) Notwithstanding subdivision (a), a city, special district, school district, community college district, college, or university shall not be charged fees for arrests on any bench warrant for failure to appear in court, nor on any arrest warrant issued in connection with a crime not committed within the entity's jurisdiction.
"(2) Notwithstanding subdivision (a), a city, special district, school district, community college district, college, or university shall not be charged fees for a person who is ordered by a court to be remanded to the county jail except that a county may charge a fee to recover those direct costs for those functions required to book a person pursuant to subdivision (g) of Section 853.6 of the Penal Code.
"(3) Notwithstanding subdivision (a), a city, special district, school district, community college district, college, or university shall not be charged fees for arrests made pursuant to arrest warrants originating outside of its jurisdiction.
"(4) Notwithstanding subdivision (a), no fees shall be charged to a city, special district, school district, community college district, college, or university on parole violation arrests or probationordered returns to custody, unless a new charge has been filed for a crime committed in the jurisdiction of the arresting city, district, college, or university.
"(5) An agency making a mutual aid request shall pay fees in accordance with subdivision (a) that result from arrests made in response to the mutual aid request except that in the event the Governor declares a state of emergency, no agency shall be charged fees for any arrest made during any riot, disturbance, or event that is subject to the declaration.
"(6) Notwithstanding subdivision (a), no fees shall be charged to a city, special district, school district, community college district, college, or university for the arrest of a prisoner who has escaped from a county, state, or federal detention or corrections facility.
"(7) Notwithstanding subdivision (a), no fees shall be charged to a city, special district, school district, community college district, college, or university for arrestees held in temporary detention at a court facility for purposes of arraignment when the arrestee has been previously booked at an entity detention facility.
"(8) Notwithstanding subdivision (a), no fees shall be charged to a city, special district, school district, community college district, college, or university as the result of an arrest made by its officer assigned to a formal multiagency task force in which the county is a participant. For the purposes of this section, 'formal task force' means a task force that has been established by written agreement of the participating agencies.
"(9) In those counties where the cities and the county participate in a consolidated booking program and where prior to arraignment an arrestee is transferred from a city detention facility to a county detention facility, the city shall not be charged for those tasks listed in subdivision (d) that are a part of the consolidated booking program which were completed by the city prior to delivering the arrestee to the county detention facility. However, the county may charge the actual administrative costs for those additional tasks listed in subdivision (d) that are performed in order to receive the arrestee into the county detention facility. For the 200506 fiscal year and each fiscal year thereafter, the county may charge up to onehalf of the actual administrative costs for those additional tasks listed in subdivision (d) that are performed in order to receive the arrestee into the county detention facility."
Section 29550.1 states in part: "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."
If a governmental entity other than those already specified (an unspecified governmental entity) books an arrestee into jail, again the county can seek reimbursement upon conviction directly from the arrestee by court order. (§ 29550.2, subd. (a).)
Section 29550.2, subdivision (a) provides in part: "Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons."
A court order for payment of the CJA fee is not always mandatory upon conviction, but depends on who performed the arrest and whether probation is granted. When a county seeks a court order for the costs resulting from its own arrest, "[a] judgment of conviction may impose an order for payment" of the CJA fee (§ 29550, subd. (d)(1)) and "[t]he 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 CJA fee. (§ 29550, subd. (d)(2), our emphasis.)
Section 29550, subdivision (d) currently provides: "When the court has been notified in a manner specified by the court that a criminal justice administration fee is due the agency:
"(1) A judgment of conviction may impose an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution may be issued on the order in the same manner as a judgment in a civil action, but shall not be enforceable by contempt.
"(2) 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, including applicable overhead costs."
The original version of the statute did not include the ability to pay language and it provided that the court "may" order payment as a condition of probation. (Stats. 1991, ch. 331, § 4, p. 1929; stats. 1991, ch. 1168, § 3, p. 5610.) A 1993 amendment replaced "may" with "shall" and added the ability to pay language. (Stats. 1993, ch. 882, § 1, pp. 48184819.)
When a county seeks a court order for its costs resulting from an arrest by an unspecified governmental entity, "[i]f the person has the ability to pay, a judgment of conviction shall contain an order for payment" of the CJA fee and "[t]he court shall, as a condition of probation, order the convicted person to reimburse the county for" the CJA fee. (§ 29550.2, our emphasis.)
Section 29550.2, subdivision (a) currently provides in part: "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."
The ability to pay language was in the original version of this statute. (Stats. 1992, ch. 696, § 20, p. 3007; stats. 1992, ch. 1369, § 1, p. 6864.)
When a specified governmental entity seeks a court order, "[a] judgment of conviction shall contain an order for payment" of the CJA fee and "[t]he court shall, as a condition of probation, order the convicted person to reimburse the" specified entity. (§ 29550.1, our emphasis.)
Section 29550.1 currently states in part: "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 city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee."
The original version of this statute provided that a judgment of conviction "may" contain an order for payment and the court "may" order payment as a probation condition. (Stats. 1991, ch. 331, § 5, p. 1930). A 1993 amendment replaced "may" in both sentences with "shall." (Stats. 1993, ch. 882, § 2, pp. 48194820.)
In other words, by statute the court must consider the defendant's ability to pay the CJA fee before ordering payment when a county comes to court seeking reimbursement for its own costs in two situations, when an arrest by an unspecified governmental entity leads to judgment of conviction, and when an arrest by a county leads to conviction and a probation grant. However, when a specified governmental entity is seeking reimbursement for costs imposed on it by a county, the defendant's ability to pay is not a statutory concern.
We have no occasion to decide whether section 29550.2, subdivision (a) extends this qualification to when probation is granted after an arrest by an unspecified governmental entity.
The Attorney General argues that statutory construction does not allow a court to read an ability to pay into section 29550.1. We understand defendant to agree with this point, which is the basis for his constitutional claim.
3. WE WILL REACH THE MERITS OF DEFENDANT'S
CONSTITUTIONAL ARGUMENT.
Defendant advances two arguments on appeal—one legal and one factual. His legal argument is that the current statutory scheme of sections 29550, 29550.1, and 29550.2 violates equal protection because of its disparate treatment of those like defendant who are arrested by specified governmental entities including cities. The statutory scheme mandates a court order to pay the CJA fee to cities without regard for a defendant's ability to pay, while defendants arrested by the county and unspecified governmental entities may be ordered to pay only if they are able to pay.
Whether a constitutional violation can be asserted for the first time on appeal depends partly on whether the alleged error is primarily legal or factual. When a constitutional claim may readily be resolved as a pure question of law on the basis of undisputed facts and does not depend on the development of new facts, appellate courts will reach the merits and not find the claim forfeited. (People v. Delacy (2011) 192 Cal.App.4th 1481, 1493; In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323; In re Sheena K. (2007) 40 Cal.4th 875, 880-889.) To the extent that defendant presents a facial challenge to the statutory scheme, we will reach the merits of his arguments.
Defendant also asserts as a matter of fact that he is unable to pay the $129.75 fee. The People contend that any procedural defect in the trial court's failure to consider his ability to pay is forfeited by defendant's failure to assert it, citing People v. Gamache (2010) 48 Cal.4th 347, 409 [maximum statutory restitution fine]), People v. Crittle (2007) 154 Cal.4th 368, 371 [$10 crime prevention fine]), People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [$250 probation services fee], and People v. Gibson (1994) 27 Cal.App.4th 1466, 1469 [statutory restitution fine].) Defendant responds that the insufficiency of the evidence to support an order can be first asserted on appeal, relying on this court's decision in People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, involving an order for a criminal defendant to pay $100 in attorney fees, $64 monthly for probation supervision, and $259.50 for a CJA fee.
In People v. McCullough 193 Cal.App.4th 864 (review granted Jun. 29, 2011, S192513), which criticized Pacheco, the California Supreme Court is currently considering whether a defendant had forfeited an appellate objection to imposition of a jail booking fee under section 29550.2.
In view of our conclusion that the trial court was not required to consider defendant's ability to pay, we need not determine whether defendant forfeited this factual argument.
4. THERE I S N O VIOLATION OF EQUAL PROTECTION
Equal protection challenges have received three levels of scrutiny from the United States Supreme Court. "Distinctions in statutes that involve suspect classifications or touch upon fundamental interests are subject to strict scrutiny, and can be sustained only if they are necessary to achieve a compelling state interest. Classifications based on gender are subject to an intermediate level of review. But most legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose." (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier).) Defendant asserts that the statutory scheme fails the rational relationship test.
What we must determine is whether " ' " 'there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' " ' " (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) Courts do not review the rationality of the Legislature's actual motivation, but rather whether " ' "the statutory classifications are rationally related to the 'realistically conceivable legislative purposes.' "' " (Id. at p. 1201.) "'[T]hose attacking the rationality of the legislative classification have the burden "to negative every conceivable basis which might support it." ' " (Ibid.)
As defendant points out, the statutes afford different treatment to defendants upon conviction depending on which governmental agency arrested the defendant. Those arrested by the county or an unspecified governmental entity may be ordered to pay the CJA fee to the county only if found to be able to pay it. Conversely, an ability to pay finding is not a prerequisite for those who were arrested by a specified governmental entity. Superficially, this structure would seem to favor those arrested by the county or an unspecified governmental entity. Looking more closely, however, the county is able to recoup only half of its actual administrative costs from specified governmental entities, and in turn, those arrested by specified governmental entities will be ordered to pay only half of the booking costs. Those who are required to pay the full amount could complain that others who are arrested by specified governmental entities are receiving more favorable treatment.
The Legislature has distinguished specified governmental entities from counties in the collection of CJA fees. It is easy to contemplate rational grounds for this distinction. This entire statutory scheme represents an attempt to make one part of the criminal justice system financially self-sufficient. Authorizing reimbursement for booking expenses creates an additional revenue source for the counties that typically bear the burden of performing the administrative functions involving booking or otherwise processing arrested persons in county jails. Authorizing counties to directly bill specified governmental agencies may well create a surer revenue source than seeking reimbursement directly from the convicted arrestees. As there is no ability to pay determination involved before the county bills the specified governmental entities, it makes sense not to impose this restriction on those entities when they in turn seek reimbursement from their arrestees.
No matter which governmental agency performs the arrest, the county, as jailer, will carry the laboring oar in booking or otherwise processing arrested individuals. These statutes all recognize that the county will have to absorb some of the cost of its labor in performing these functions. To the extent that the county is authorized to monetize the booking services it provides by seeking reimbursement directly from the convicted arrestee (after an arrest by the county or an unspecified governmental entity), it is reasonable for the Legislature to interpose a consideration of the individual's ability to pay. On the other hand, when the arrest is by a specified governmental entity, the Legislature has provided a shortcut for counties, authorizing direct billing of those entities for half of the counties' costs without any consideration of ability to pay. In turn, to the extent those specified entities are required to make a payment of money to the counties, the Legislature has authorized the specified entities to recover their actual expenditures directly from the convicted arrestees also without consideration of ability to pay. The fact that the specified governmental entities have incurred an actual cash outlay to an outside agency—the counties—while the counties pay no such fee to outside agencies but merely are seeking to charge arrestees for their own services provides a reasonable basis for distinguishing the two situations and not limiting specified governmental entities by their arrestee's ability to pay.
5. REMAINING CONTENTIONS
As neither section 29550.1 nor equal protection required the trial court to determine defendant's ability to pay before imposing a CJA fee payable to the City of Mountain View, it is irrelevant whether the record contains evidence of defendant's ability to pay, so we do not reach this contention. Defense counsel cannot be faulted for failing to make either unavailing argument: that the statute violates equal protection or that defendant is unable to pay $129.75.
6. DISPOSITION
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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WE CONCUR:
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BAMATTRE-MANOUKIAN, ACTING P.J.
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MIHARA, J.