Filed 1/25/18 P. v. Sippel CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

MORGAN CHARLES SIPPEL,

Defendant and Appellant.
H043662
(Santa Clara County
Super. Ct. No. C1630800)

I. INTRODUCTION
Defendant Morgan Charles Sippel pleaded no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and prowling (Pen. Code, § 647, subd. (i)). The trial court placed defendant on probation and ordered him to pay various fees and fines, including a $129.75 criminal justice administration fee (“booking fee”).
On appeal, defendant challenges the trial court’s imposition of the booking fee, contending he lacked the ability to pay the fee and that there was no evidence of the actual cost of booking him into jail. Defendant also contends that his trial counsel was ineffective for failing to object on the ground that there was no evidence of the actual cost of his booking. For reasons that we will explain, we will affirm the order of probation.
II. BACKGROUND
Defendant was originally charged with residential (first degree) burglary (Pen. Code, §§ 459, 460, subd. (a)) and prowling (Pen. Code, § 647, subd. (i)). He entered into a plea agreement and pleaded no contest to second degree burglary and prowling.
The probation report recommended defendant be placed on probation and pay a number of fees and fines, including a $129.75 booking fee to the City of Sunnyvale. At the sentencing hearing, defendant’s trial counsel informed the trial court that defendant was “unemployed, no savings, no assets” and homeless. Defendant’s trial counsel thus objected to the booking fee. However, the trial court adopted the probation officer’s recommendations, imposing the $129.75 booking fee.
III. DISCUSSION
Defendant first contends the trial court erred by imposing the $129.75 booking fee because there was no evidence he had the ability to pay the fee. The Attorney General asserts that no ability to pay finding was required.
Although the trial court did not specify the statutory basis for the booking fee, defendant acknowledges that the fee was imposed pursuant to Government Code section 29550.1, which provides: “Any city . . . 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. . . . The court shall, as a condition of probation, order the convicted person to reimburse the city . . . or other local arresting agency for the criminal justice administration fee.”
The authority for the county’s imposition of a booking fee on a city comes from section 29550, subdivision (a)(1), which specifies that “a county may impose a fee upon a city . . . for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city . . . where the arrested persons are brought to the county jail for booking or detention.” Section 29550, subdivision (a)(1) further specifies that “the fee imposed by a county pursuant to this subdivision shall not exceed one-half of the actual administrative costs . . . incurred in booking or otherwise processing arrested persons.”
Defendant acknowledges that section 29550.1 does not expressly require a finding of ability to pay. His argument is premised on the fact that an ability to pay finding is required by section 29550.2, subdivision (a), which applies when a person is “booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1” and specifies that “[i]f 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 . . . .” A fee imposed pursuant to section 29550.2, subdivision (a) “shall not exceed the actual administrative costs . . . incurred in booking or otherwise processing arrested persons.”
Defendant’s statutory interpretation claim fails. Under the plain language of section 29550.1, no ability to pay finding is required. Rather, the statute makes the fee mandatory: “The court shall, as a condition of probation, order the convicted person to reimburse the city . . . or other local arresting agency for the criminal justice administration fee.” (§ 29550.1, italics added.) Additionally, nothing in section 29550 or section 29550.2 indicates that the ability to pay requirement of section 29550.2 is somehow incorporated into section 29550.1.
Defendant alternatively contends that equal protection principles require a finding of ability to pay when a booking fee is imposed pursuant to section 29550.1, since ability to pay is a requirement of section 29550.2.
To prevail on an equal protection claim, a defendant must first establish that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Brown (2012) 54 Cal.4th 314, 328; People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier).) Unless the statutory distinction at issue involves a suspect classification, touches upon a fundamental interest, or is based on gender, most equal protection challenges are analyzed under the rational relationship test. (Hofsheier, supra, at p. 1200.) Under that test, “ ‘ “ ‘a statutory classification . . . must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are “plausible reasons” for [the classification], “our inquiry is at an end.” ’ ” ’ [Citations.]” (Id. at pp. 1200-1201, italics omitted.)
We determine that persons subject to section 29550.1 and those subject to sections 29550 and 29550.2 are not similarly situated. Counties typically operate the jails 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.) Under section 29550, subdivision (c), a county may recover its “actual administrative costs” directly from the arrested person if the person was arrested by county personnel. The county may also recover its actual costs directly from the arrested person when the arrest was made by a governmental entity not specified in sections 29550 or 29550.1, which would include state law enforcement agencies. (§ 29550.2, subd. (a).) But where the arrest was made by a city, the county may impose a fee on that local arresting entity for no more than “one-half” of the county’s “actual administrative costs.” (§ 29550, subd. (a)(1).) Under section 29550.1, the local arresting entity may, in turn, recover from the arrested person the fee “imposed by a county.” Thus, someone like defendant, who was arrested by a local entity such as the Sunnyvale Police Department, is liable for one-half the amount for which county or state arrestees are liable. Consequently, the local arrestee and the county and state arrestees are not similarly situated.
Even if these classes of arrestees were similarly situated for purposes of the law, there is a conceivable rational basis for the differential treatment. Although a person arrested by a local entity will be required to pay a criminal justice administration fee even absent an ability-to-pay finding and other arrestees will not have to pay if they do not have the ability, the local arrestee has the benefit of being charged one-half the amount that other arrestees are charged. The Legislature could rationally have concluded that imposing an ability-to-pay condition in cases of county and state arrestees but omitting it as to local arrestees was reasonable because the former are exposed to a potential debt two times the size of that the latter will have to pay. This is a plausible basis for the differential treatment. (See Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.)
Accordingly, we conclude that equal protection principles did not require the trial court to determine defendant’s ability to pay before imposing a criminal justice administration fee payable to the City of Sunnyvale. (See § 29550.1; Hofsheier, supra, 37 Cal.4th at pp. 1199, 1200-1201.)
Defendant next challenges imposition of the booking fee on the ground that there was no evidence of the actual cost of booking him into jail. Defendant acknowledges that his trial counsel failed to object to the fee on this ground, resulting in forfeiture of the claim on appeal, and thus he contends he received ineffective assistance of counsel. (See People v. McCullough (2013) 56 Cal.4th 589, 591.)
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) If the record “does not show the reasons for counsel’s actions,” the ineffective assistance claim is “more appropriately decided in a habeas corpus proceeding.” (People v. McDermott (2002) 28 Cal.4th 946, 1002.)
In People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar), the defendant claimed that the imposition of a booking fee violated due process “because the record contain[ed] neither evidence nor trial court findings as to the actual costs involved.” (Id. at p. 869.) The California Supreme Court rejected the claim, finding that “the trial court correctly relied on the fee schedule set by the county board of supervisors based on actual cost data submitted by the county sheriff.” (Ibid.)
Here, the record suggests that, as in Aguilar, the trial court relied on a fee schedule set by Santa Clara County when imposing the $129.75 booking fee. Not only did the probation officer recommend a $129.75 fee, but the preprinted clerk’s minutes form lists $129.75 as one of the two possible “CJAF” (i.e., criminal justice administration fee) amounts; the other being $259.50, representing double that amount, which is payable when a county is being billed for the costs of booking. (See § 29550, subd. (c).) On this record, a reasonable inference arises that the $129.75 fee was based on a preexisting fee schedule. (See Aguilar, supra, 60 Cal.4th at p. 869 [“Nothing before us suggests the trial court did not properly rely on the . . . fee schedule.”].) Defendant’s trial counsel may have decided that an objection would have been futile because the fee schedule adopted by Santa Clara County provided proof that $129.75 represented one-half of the actual cost of booking a defendant into jail. Since there is a possible “satisfactory explanation” for his trial counsel’s failure to object, defendant cannot prevail on his ineffective assistance claim. (See Anderson, supra, 25 Cal.4th at p. 569.)
IV. DISPOSITION
The judgment is affirmed.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Sippel
H043662