P. v. Aguirre
Filed 10/22/12 P. v. Aguirre CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
IGNACIO
MARMOLEJO AGUIRRE,
Defendant and Appellant.
E054996
(Super.Ct.No. RIF1102360)
OPINION
APPEAL
from the Superior Court
of
County. John D. Molloy,
Judge. Affirmed as modified.
Neil
Auwarter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Sabrina Lane Erwin and
Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In June 2011, defendant and
appellant Ignacio Marmolejo Aguirre was convicted of
& Saf. Code, § 11377, subd. (a)), and placed on formal probation for a
period of 36 months with various terms and conditions. In August 2011, defendant violated probation
by possessing methamphetamine and being under the influence of a controlled
substance. On November 8, 2011, after defendant pled guilty to
being in possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)) in case No. RIF1104629, the trial court found defendant to be in violation
of his probation in case No. RIF1102360.
Defendant was thereafter immediately sentenced to the low term of 16
months in county jail to be served concurrently with case No. RIF1104629.
On
appeal, defendant contends (1) the trial court erred in imposing a parole
revocation fine pursuant to Penal Code section 1202.45; and (2) the trial court
erred in imposing a booking fee in the amount of $414.45 pursuant to Government
Code section 29550. We agree that the parole
revocation fine must be stricken, but reject defendant’s remaining contention.
II
name="_ftnref1" title="">[1]
DISCUSSION
A.
Code Section 1202.45
Defendant
contends that the trial court erred in imposing a parole revocation fine
pursuant to Penal Code section 1202.45 because that statute is inapplicable in
this case. The People agree that the
trial court erred in imposing the fine because defendant was ordered to serve
time in county jail, instead of state prison, and therefore his sentence does
not include “a period of parole†within the meaning of Penal Code section
1202.45. We also agree and order the
parole revocation fine stricken.
Penal
Code section 1202.45 requires assessment of a parole revocation restitution
fine “[i]n every case where a person is convicted of a crime and whose sentence
includes a period of parole.â€
(Italics added.) Because
defendant’s sentence included no period of parole and he was sentenced to
county jail, instead of state prison,
for a period of 16 months pursuant to Penal Code section 1170, subdivision (h),
it was improper to impose the parole revocation fine. (See People
v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Battle (2011) 198 Cal.App.4th 50, 63;
1178, 1183; see also Pen. Code, § 3000 et seq. [requiring a period of parole
only if a defendant has been committed to state prison].)
B.
Code Section 29550
Defendant
also contends that the $414.45 booking fee imposed under Government Code
section 29550 must be stricken because the trial court did not make an
assessment of his ability to pay.
The
People argue that defendant forfeited this issue by failing to object in the
trial court. The People also assert
that defendant’s argument is meritless because subdivision (d)(1) of
Government Code section 29550 does not require a court to base
the reimbursement of the fee based on a defendant’s ability to pay.
1. Forfeiture
Following
his guilty plea and a finding of a probation violation, defendant was
immediately sentenced. When the trial
court imposed the $414.45 booking fee, there was no objection by
defendant. The People argue that
defendant forfeited any objection to the booking fee by failing to object in the
lower court because the resulting sentence is not an unauthorized sentence,
citing to People v. Valtakis (2003)
105 Cal.App.4th 1066, 1071-1072, People
v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395 (Fourth Dist., Div. Two), and
1466, 1468-1469.
Defendant
argues that he can raise the issue on appeal for the first time, as the
determination of booking fees presents an insufficient evidence claim that
cannot be forfeited, citing to People v.
Pacheco (2010) 187 Cal.App.4th 1392, 1397-1401 (Pacheco), among other cases.
We
note that there is conflicting authority on the issue of whether the failure to
object to an imposed fee based on the trial court’s failure to make a
determination of an ability to pay forfeits the issue on appeal. On one hand, courts have found, “[B]ecause
the appropriateness of a restitution fine is fact-specific, as a matter of
fairness to the People, a defendant should not be permitted to contest for the
first time on appeal the sufficiency of the record to support his ability to
pay the fine. Otherwise, the People
would be deprived of the opportunity to cure the defect by presenting
additional information to the trial court to support a finding that defendant
has the ability to pay. [Citations.]†(People
v. Gibson, supra, 27 Cal.App.4th
at p. 1468; see also People v.
1357.)
However,
other courts have found that a challenge to a defendant’s ability to pay
attorney fee reimbursement need not be raised below because it is essentially a
challenge to the sufficiency of the evidence supporting the trial court’s
order. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218;
1508, 1537.) Recently, in
imposition of a booking fee, probation supervision fee, and other fees are
forfeited without an objection in the trial court. It concluded, “[T]hese claims are based on
the insufficiency of the evidence to support the order or judgment. We have already held that such claims do not
require assertion in the court below to be preserved on appeal. [Citations.]
Respondent offers nothing to convince us otherwise.†(Id.
at p. 1397.)
title="">[2]
We need not determine whether
Pacheco was wrongly decided. Because the People have addressed the issue
on the merits and, out of an abundance of caution, we consider the merits of
defendant’s challenge to the trial court’s imposition of the $414.45 booking
fee.
2. Imposition of booking fee
Government
Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise
processing arrested persons into a county jail.
To a certain extent, the fees vary depending on the identity of the
arresting agency and the eventual disposition of the person arrested.
Arrests
made by an agent of a city “or other local arresting agency†are governed by
Government Code sections 29550, subdivision (a)(1) and 29550.1. Under Government Code section 29550,
subdivision (a)(1), the county may charge the local arresting agency a booking
fee. When it does so, under Government
Code section 29550.1, “The court shall,
as a condition of probation, order the convicted person to reimburse the [local
agency].†(Italics added.)
Arrests
made by a county agent or officer are governed by Government Code section
29550, subdivision (c). Under
subdivision (c) of Government Code section 29550, if the person is convicted of
a crime related to the arrest, the county is entitled to recover a booking fee
from the arrestee, but the fee may not exceed its actual administrative costs,
including fixed overhead.
Government
Code section 29550, subdivisions (c), (d)(1) and (d)(2), specify what a court
is to do when it has been notified that the county is entitled to a booking
fee. Under subdivision (d)(1) of
Government Code section 29550, the judgment of conviction “may†include an
order imposing the booking fee. However,
under subdivision (d)(2), if the person convicted is granted probation, the fee
becomes mandatory, although subject to a finding of an ability to
pay: “The court shall, as a condition of probation, order the convicted person,
reimburse the county for the . . . fee.†(Italics added.)
Finally,
arrests made by “any governmental entity not specified in [Government Code]
Section 29550 or 29550.1†are governed by Government Code section 29550.2,
subdivision (a). In general, with one
subtle difference, the language of this provision is consistent with the
language of the others. The difference
is that, under Government Code section 29550.2, all convicted persons—those
sent to prison as well as those granted probation—are subject to a mandatory
booking fee conditioned upon their ability to pay. The county may be entitled to recover a
booking fee, but whether it can get an order for the fee depends on the
arrestee’s financial condition.
Due
to the varying differences as noted above, defendant insists that while
subdivision (d)(1) of Government Code section 29550 “does not mention ability
to pay,†“it is evident from the overall statutory scheme that a finding of
ability to pay is required.†The parties
do not dispute that this case is governed by Government Code section 29550,
subdivisions (c) and (d)(1), not Government Code section 29550.2.
probation, under Government Code section 29550, subdivisions (c) and (d)(1), a
fee is due and must be included in the judgment of conviction. Accordingly, under subdivision (d)(1) of
Government Code section 29550, no ability to pay determination is necessary.
Defendant
also asserts, without supporting authority, that “Nothing in the statutory
scheme suggests the Legislature meant to discriminate between defendants based
on whether they receive a prison or jail term versus probation, or based on the
identity of the arresting agency.†He
further claims “[n]or would any such discrimination be logical.â€
We
reject defendant’s purported equal protection assertion for several
reasons. First, when counsel asserts a
point but fails to support it with reasoned argument and citations to
authority, the court may deem it to be waived and pass it without
consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Second, it is undisputed that defendant did
not raise any challenge below to the booking fee. His claim that the court’s imposition of a
booking fee through application of Government Code section 29550 violated his
equal protection rights, like other unpreserved equal protection challenges,
cannot be maintained on appeal. (See,
e.g., People v. Alexander (2010)
49 Cal.4th 846, 880, fn. 14; People
v. Burgener (2003) 29 Cal.4th 833, 861, fn. 3.) And his contention is not one concerning the
imposition of an unauthorized sentence that would fall within the “narrow
exception to the waiver rule†for unpreserved claims of sentencing error. (People
v. Smith (2001) 24 Cal.4th 849, 852.)
Furthermore, Pacheco,
distinguishable and would not support a contention that defendant did not
forfeit his equal protection challenge.
As previously noted, Pacheco
involved a sufficiency-of-the-evidence argument. Moreover, the problem with defendant’s equal
protection challenge is that by failing to raise this issue below, 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 Government Code section 29550. “‘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.]†(
1202, 1212, italics added.)
Consequently, we need not consider the merits of defendant’s attempted
challenge to Government Code section 29550 on equal protection grounds.
In
view of the plain language of Government Code section 29550, subdivision
(d)(1), the trial court did not have to determine defendant’s ability to pay
prior to imposing the fee.
III
DISPOSITION
The parole revocation fine imposed
on defendant is stricken. As modified,
the judgment is affirmed. The trial
court is directed to amend the sentencing minute order and forward a copy to
the Riverside County Sheriff’s Department.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P. J.
We
concur:
HOLLENHORST
J.
MILLER
J.
name="_ftn1" title=""> [1] The details of defendant’s criminal conduct
are not relevant to the limited legal issues raised in this appeal.
name="_ftn2" title=""> [2] We note that the Supreme Court has recently
granted review in People v. McCullough
(2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513. McCullough
disagreed with Pacheco’s substantial
evidence waiver exception.
