P. v.
Filed 3/25/13 P. v. Austin CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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 CALIFORNIA
THIRD APPELLATE
DISTRICT
(Amador)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
PAMELA AUSTIN,
Defendant and Appellant.
C071327
(Super. Ct. No. 12CR19513)
Following
her plea of guilty to bringing an illegal
substance or alcohol into a jail facility (Pen. Code, § 4573.5),
defendant Pamela Austin was ordered to pay a $63.50 criminal justice
administration fee (Gov. Code, § 29550.2).
On appeal she contends the order must be reversed, as there was no
determination she had the ability to pay the fee and no evidence supporting
that finding. We affirm.
BACKGROUND
Because of
the nature of the claim on appeal, a detailed recitation of the underlying
facts and procedural history is not necessary.
Defendant
entered Mule Creek State Prison with a beer, a straw to consume
methamphetamine, and .4 gram of methamphetamine. She was charged with bringing drugs into a
state prison (Pen. Code, § 4573), bringing alcohol into a state prison
(Pen. Code, § 4573.5), and misdemeanor being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)). It was also alleged she had sustained a prior
strike conviction. (Pen. Code,
§§ 667, subds. (b) - (i), 1170.12, subd. (a)-(d).) Defendant pleaded guilty to bringing an
illegal substance or alcohol into a jail facility in exchange for the midterm
sentence. The plea form she signed
indicated defendant understood, and agreed, that she would be ordered to pay a
criminal justice administration fee.
In
accordance with the plea, defendant was sentenced to the midterm of two years
and awarded 25 days of presentence custody
credits. Among the various fines and
fees, the court imposed a $63.50 criminal justice administration fee pursuant
to Government Code section 29550.2. Defendant
did not object to the imposition of the fee.
The court struck the prior strike conviction and the remaining counts
were dismissed.
DISCUSSION
Defendant
contends there is insufficient evidence of her ability to pay the criminal
justice administration fee, and thus the fee must be stricken. She contends her claim is cognizable on
appeal despite her guilty plea, because she is challenging the sufficiency of
the evidence, a challenge not forfeited by her failure to object in the trial
court. The Attorney General disagrees,
arguing defendant’s failure to object below forfeited her claim on appeal. We agree with the Attorney General.
The right
to appellate review of a nonjurisdictional sentencing issue is forfeited if it
is not raised in the trial court. (
31 Cal.4th 745, 751–755; People v.
Scott (1994) 9 Cal.4th 331, 356.)
We have previously applied this rule and held an objection must be made
in the trial court to the imposition of fines based on the defendant's ability
to pay or any claim of error on this basis is forfeited for purposes of
appeal. (People v. Crittle (2007)
154 Cal.App.4th 368, 371 [crime prevention fine—Pen. Code, § 1202.5,
subd. (a)]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail
booking fee—Gov. Code, § 29550.2].)
As noted by defendant, the Sixth Appellate District has reached a
contrary conclusion (People v. Pacheco (2010) 187 Cal.App.4th 1392,
1397), and the California Supreme Court has agreed to resolve the conflict (see
People v. McCullough (2011) 193 Cal.App.4th 864, review granted
June 29, 2011, S192513). However, until
the Supreme Court issues further guidance, we continue to adhere to our
previous holdings that a failure to object to a fee or fine in the trial court
forfeits the issue. Accordingly, we deem
the issue forfeited here.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
DUARTE , J.
