P.
v. Aung
Filed 4/18/13 P. v. Aung CA4/1
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TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and
Respondent,
v.
HTOO AUNG,
Defendant and
Appellant.
D062442
(Super. Ct.
No. SCN281803)
APPEAL
from a judgment of the Superior Court
of
County, Harry M. Elias, Judge.
Affirmed.
A
jury convicted Htoo Aung of assault with
a deadly weapon or force likely to produce great bodily harm. The trial court found two alleged prior
convictions to be true. It sentenced
Aung to an 11-year prison term, and ordered him to pay fines, including a
criminal justice administrative fee (booking fee) in the amount of $154 under
Government Code section 29550.1.
(Undesignated statutory references are to the Government Code.) Aung did not object to the imposition of the
booking fee on any grounds. He appeals,
contending imposition of the booking fee denied him equal protection because
section 29550.1, unlike sections 29550 and 29550.2, does not require a finding
of ability to pay. He requests the
booking fee be stricken. We decline to
do so and affirm the judgment.
DISCUSSION
Sections 29550, 29550.1, and 29550.2 govern booking fees
for processing arrested persons into county jail. (People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 (Pacheco).) Persons, such as
Aung, that are arrested by a local agency are liable for one-half the amount of
the booking fee without any determination of his or her ability to pay the
fee. (§ 29550, subd. (a)(1).) Persons arrested by other than a local or
county agency are liable for the full booking fee, subject to their ability to
pay. (§ 29550.2.) Finally, county arrestees may be liable for
the full booking fee if incarcerated; however, booking fee liability for county
arrestees placed on probation is conditioned on their ability to pay. (§ 29550, subd. (d).)
Aung contends that his
because he was required to pay the full booking cost and no rational basis
exists to distinguish why an ability to pay finding is required for some
agencies but not others. He acknowledges
that he failed to raise this issue below.
The issue whether forfeiture applies when a defendant did not object to
the imposition of a booking fee in the trial court is pending before our high
court. (People v. Mason, review granted Aug. 29, 2012, S203747; People v. McCullough, review granted June 29, 2011, S192513.)
The issue whether the imposition of the section 29550.1 booking fee
denies a defendant equal protection because section 29550.1 does not require
that the court find an ability to pay is also before the California Supreme
Court. (People v. Mason, supra,
S203747.) Assuming, without deciding,
that Aung did not forfeit his challenge and that equal protection principles
apply, we reject his contentions.
" '[A] court may reform — i.e.,
"rewrite" — a statute in order to preserve it against invalidation
under the Constitution, when we can say with confidence that (i) it is possible
to reform the statute in a manner that closely effectuates policy judgments
clearly articulated by the enacting body, and (ii) the enacting body would have
preferred the reformed construction to invalidation of the
statute.' " (
85 Cal.App.4th 875, 889.) The power of
judicial reformation can be exercised in cases concerning underinclusive or
otherwise unconstitutional classifications under the equal protection clause. (Kopp
v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 629.)
Here, we can say with confidence that revising section
29550.1 to include an ability to pay provision, rather than withdrawing the ability to
pay benefit from sections 29550 and 29550.2, would be consistent with
the legislative policy judgment underlying the booking fee statutes. In 1993, the Legislature changed the language of section
29550 requiring a court to impose the fee on a convicted person from permissive
to mandatory. (Assem. Bill No. 2286
(1993-1994 Reg. Sess.) § 1.) It
also added the requirement that a court find an ability to pay. (Ibid.) Similarly, under section 29550.1, the
Legislature intended that a person convicted of a crime bear the financial
burden of the booking fee. (Assem. Bill
No. 211 (1997-1998 Reg. Sess.) § 1.)
Hence,
we reject Aung's request to invalidate section 29550.1 and strike the fee
because doing so would require that local agencies bear the burden of the
booking fee, not the convicted person.
Instead, we conclude the Legislature would prefer to extend the ability
to pay benefit in sections 29550 and 29550.2 to section 29550.1. This rewrite ensures that the convicted
person bears the financial burden for the booking fee except when the convicted
person does not have the ability to pay.
Accordingly,
we extend the ability to pay benefit to section 29550.1 and examine the record
to determine whether it contains substantial evidence to support a finding that
Aung has the ability to pay. (
pay may be implied and must be supported by substantial evidence].) Aung's probation report reveals that he was unemployed
at time of the offense and had no income, liabilities or savings. Although Aung was diagnosed with bi-polar
disorder in 2002, the condition did not prevent him from completing two years
of community college. He also previously
worked in several different positions, including a security guard and
manufacturing and assembly in the automotive industry.
Penal Code section 2700 provides, in part that
"[t]he 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. (
Because the record suggests that Aung has the ability to obtain prison
employment we must assume that he will have the ability to pay the minimal
booking fee. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1486–1487.)
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.
