P. v. Champion
Filed 3/7/13 P. v. Champion 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
SHANDRA CHAMPION,
Defendant
and Appellant.
E055024
(Super.Ct.No.
RIF1105282)
OPINION
APPEAL
from the Superior Court
of
County. Elaine M.
Johnson, Judge. Affirmed.
Marianne
Harguindeguy Cox, 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, Annie Fraser and Heather
M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On
October 5, 2011, a complaint charged defendant and appellant Shandra Champion
with possession of cocaine under Health and Safety Code section 11350,
subdivision (a) (count 1), and theft with three or more prior convictions for
theft crimes under Penal Code section 490.5 (count 2). The complaint further alleged that defendant
had two prison priors under Penal Code section 667.5, subdivision (b).
Defendant
pled guilty to both counts and admitted one prison prior. Defendant was sentenced to two years four
months in county jail.
On
November 18, 2011,
defendant filed her timely notice of
appeal. On appeal, defendant
contends that the trial court erred in imposing a booking fee and a drug
program fee without determining her ability to pay the fees. For the reasons set forth
II
BACKGROUND
Pursuant
to the terms of the plea agreement, formal probation was denied. Defendant requested an immediate sentence and
waived being referred to probation for a presentence report. Therefore, defendant was sentenced to two
years four months in county jail as follows:
16 months on count 2, 60 concurrent days on count 1, and one consecutive
year for the prison prior. The court
suspended execution of the last 12 months of the sentence under Penal Code
section 1170, subdivision (h)(5), and placed defendant on a supervised release
grant for that period.
The
court also ordered defendant to pay a $414.45 booking fee, a $200 restitution
fine, a $40 security fee for each charge, a $30 conviction assessment fee for
each charge, a $190 criminal laboratory analysis fee, and a $190 drug program
fee. The court stayed a $200 probation
restitution fine.
Defendant
signed a “Sentencing Memorandum Supervised Release,†which also set forth her
sentence, grant of supervised release, and her requirement to pay the foregoing
fees and fines. Defendant told the court
that she understood all of the checked items in the sentencing memorandum and
that she went over them with her attorney “probably too many times.â€
III
ANALYSIS
Defendant
contends that the trial court improperly imposed a booking fee and a drug
program fee without first determining her ability to pay the fees. The People argue that defendant has forfeited
her right to challenge the imposition of the fees because she failed to raise
these objections at the time the fees were imposed. We need not address the People’s forfeiture
argument because defendant’s arguments fail on the merits.
Jail Booking Fee
Defendant
was ordered to pay a $414.45 booking fee under Government Code section 29550
(section 29550). Section 29550, states:
“(d)
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.†(Italics
added.)
Section
29550, subdivision (d)(1), permits assessment of an administration fee upon a
judgment of conviction—without any specification that a court consider a
defendant’s ability to pay. However, the
plain language of subdivision (d)(2) states that a defendant’s ability to pay
must be considered when a fee is assessed as a condition of probation.
In
this case, defendant was specifically denied formal probation under the terms
of her plea agreement. At the sentencing
hearing, the trial court denied probation and sentenced defendant to two years
four months in county jail. The court
then suspended execution of the last 12 months of the sentence under Penal Code
section 1170, subdivision (h)(5), and placed defendant on a supervised release
grant for the last 12 months of her sentence.
Penal Code section 1170, subdivision (h)(5), states:
“The
court, when imposing a sentence pursuant to paragraph (1) or (2) of this
subdivision, may commit the defendant to county jail as follows:
“(A)
For a full term in custody as determined in accordance with the applicable
sentencing law.
“(B)(i)
For a term as determined in accordance with the applicable sentencing law, but
suspend execution of a concluding portion of the term selected in the court’s
discretion, during which time the defendant shall be supervised by the county
probation officer in accordance with the terms, conditions, and procedures
generally applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. . . .†(Pen. Code, § 1170, subd. (h)(5).)
Although
Penal Code section 1170, subdivision (h)(5)(B)(i), provides that “defendant
shall be supervised by the county probation officer,†this simply refers to
supervision by a probation officer and does not provide that a person sentenced
under the subdivision is granted formal probation.
Notwithstanding,
defendant argues that a determination of her ability to pay should have been
made under section 29550, subdivision (d)(2).
In support of her argument, defendant cites to People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco).
case.
In
Pacheco, after the defendant entered
a no contest plea, the court suspended imposition of sentence and placed the
defendant on formal probation for three years.
(Pacheco, supra, 187 Cal.App.4th at p. 1396.) On appeal, the defendant challenged the
imposition of numerous fees, including a booking fee, without a determination
of his ability to pay. (
determined that it was unclear under which statute—whether under section 29550,
subdivision (c), or Government Code section 29550.2—the trial court ordered
payment of the defendant’s booking fee.
Nonetheless, the court found that under either statute, the trial court
erred because it failed to determine whether the defendant had the ability to
pay his booking fee. (
As
to section 29550, subdivision (c), as discussed in detail ante, a court must make a determination of a defendant’s ability to
pay if the defendant is placed on formal probation. (See § 29550, subd. (d)(2).) The defendant in Pacheco was placed on formal probation. Hence, a determination of ability to pay must
be made. Here, defendant was not placed
on formal probation. As discussed
applies, not subdivision (d)(2); hence, no determination of ability to pay is
mandated.
As
to Government Code section 29550.2, the statute states that if a defendant “has
the ability to pay, a judgment of conviction shall contain an order for
payment. . . .†(Gov.
Code, § 29550.2, subd. (a).) Hence, in
under Government Code section 29550.2, the statutory language mandates the
determination of ability to pay. In this
case, the booking fee was not assessed under Government Code section
29550.2. Instead, it was assessed under
section 29550, which does not contain the same mandate.
In
sum, because the booking fee was imposed under section 29550, and defendant was
not placed on formal probation, section 29550, subdivision (d)(1)—which does
not require a determination of ability to pay—applies. Therefore, defendant is not entitled to a
determination of her ability to pay the booking fee.
Drug Education Program Fee
Defendant
was ordered to pay a drug program fee of $190.00. Defendant contends that the trial court erred
in imposing a drug program fee without determining her ability to pay. Defendant’s contention fails because the
court made an implied finding of her ability to pay.
Health
and Safety code section 11372.7, states, in pertinent part:
“(a)
Except as otherwise provided in subdivision (b) or (e), each person who is
convicted of a violation of this chapter shall pay a drug program fee in an
amount not to exceed one hundred fifty dollars ($150) for each separate
offense. The court shall increase the
total fine, if necessary, to include this increment, which shall be in addition
to any other penalty prescribed by law.
“(b)
The court shall determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee. If the court determines that the person has
the ability to pay, the court may set the amount to be paid and order the
person to pay that sum to the county in a manner that the court believes is reasonable
and compatible with the person’s financial ability. In its determination of whether a person has
the ability to pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered to pay in
restitution. If the court determines
that the person does not have the ability to pay a drug program fee, the person
shall not be required to pay a drug program fee.†(Health & Saf. Code, § 11372.7, subds.
(a) & (b).)
Although
the court must make a finding of ability to pay under Health and Safety Code
section 11372.7, the court is not required to make an express finding on the
record. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) The “fee is mandatory unless the defendant is
unable to pay. Since the record does not
suggest otherwise, we presume the court found appellant had the ability to pay
the fee.†(People v. Clark (1992) 7 Cal.App.4th 1041, 1050; see also
1511, 1517-1518.)
Based
on the above, in the absence of evidence to the contrary, we must presume that
the trial court followed the law in performing its duty and the requisite
determination of ability to pay is implicit in the trial court’s order to pay
the drug program fee. (Evid. Code,
§ 664; see also People v. Staley,
supra, 10 Cal.App.4th at
pp. 785-786.)
IV
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Defendant’s sole issues on appeal are whether
the trial court properly imposed booking and drug program fees. We, therefore, limit our discussion of facts
to those issues.
