P. v. Lewis
Filed 7/9/12 P.
v. Lewis CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
RAYMOND
CHARLES LEWIS,
Defendant and Appellant.
H037349
(Santa Clara County
Super. Ct. No.
B1050315)
Defendant
Raymond Charles Lewis pleaded no contest to carjacking
and to evading the police and admitted the enhancement that he was armed with a
firearm. He was sentenced to a five-year
prison term.
Defendant claims
that the court erred in imposing a criminal justice administration (booking)
fee of $129.75 because it did not make a determination of defendant’s ability
to pay the fee. He acknowledges that the
statute under which the booking fee was imposed here does not include a
requirement that the court determine that the defendant has the ability to pay
the fee. But he contends that comparable
booking fee statutes contain an ability-to-pay requirement, and therefore
imposing the booking fee here without such a determination violated his equal
protection rights under the federal and state Constitutions. Defendant also argues that the imposition of
a $10 fine plus penalty assessment, pursuant to Penal Code section 1202.5, was
error because there was no substantial evidence of his ability to pay the
fine. He contends further that if the
claims concerning the booking fee and fine were forfeited, we should
nonetheless consider them because he received prejudicially ineffective
assistance of counsel. Lastly, defendant
urges that the concurrent sentence imposed on the misdemeanor conviction is not
properly reflected on the abstract of judgment.
Notwithstanding
the Attorney General’s assertion that defendant’s constitutional challenge to
the imposition of the booking fee was forfeited, we elect to address the
controversy on the merits and conclude that the equal protection claim
fails. We hold further that defendant
forfeited the challenge to the fine and penalty assessment imposed pursuant to
Penal Code section 1202.5. And we reject
his ineffective assistance of counsel argument.
Lastly, we agree that the abstract of judgment should be amended. Accordingly, we will affirm the judgment and
direct the court to amend the abstract.
FACTS
title="">[1]
Palo Alto police
officers responded at approximately 4:00 a.m. on October 10, 2010, to a reported carjacking.
The victim reported that she was parked in her Toyota Prius along the
curb on University Avenue in Palo Alto waiting for her husband, who had finished loading his musical
instruments after completing a weekly show he performed with his band. Defendant opened the driver’s door, pointed a
handgun at the victim, and ordered her out of the car. The victim complied, and defendant drove
away.
At 4:26
that morning, a San Mateo police officer, unaware of the hijacking, attempted to stop the
Prius. Defendant drove off in response
to the officer’s order to turn off the car, and he eluded the officer’s
pursuit. The unoccupied car was
thereafter located and defendant was apprehended.
PROCEDURAL BACKGROUND
Defendant was
charged by information filed April 4, 2011, with carjacking
where the victim is the driver of the vehicle, a felony (Penal Code,
§ 215), and fleeing a pursuing peace officer’s motor vehicle, a
misdemeanor (Veh. Code, § 2800.1, subd. (a)). It was alleged further that defendant
personally used a firearm in the commission of the offense (former Penal Code,
§ 12022.53, subd. (b)). The
information was later amended to substitute a firearm enhancement pursuant to
former Penal Code section 12022, subdivision (a)(1) in place of the pleaded
enhancement. On May 17, 2011, defendant
pleaded no contest to the two counts alleged and admitted the firearm
allegation, as amended. The plea was
entered with the understanding that he would receive a prison sentence of not
less than three, nor more than six years.
On August 8,
2011, the court sentenced defendant on the carjacking count to the midterm of
five years, imposed a concurrent 30-day sentence for the misdemeanor
conviction, and stayed additional punishment for the firearm enhancement. Defendant filed a timely notice of appeal based
on the sentence or other matters occurring after the plea.
DISCUSSION
I. Imposition
of the Booking Fee
A.
At sentencing,
the court imposed a criminal justice administration fee of $129.75, payable to
the City of Palo Alto. The court did not
specify the statutory authority under which this booking fee was being
imposed. Further, the court neither
inquired about defendant’s ability to pay the fine nor made a specific finding
about defendant’s ability to pay.
Defendant
contends that the court erred in its imposition of the booking fee. He contends that the statute under which the
fee was imposed was Government Code section 29550.1.
assertion.) He asserts that the statute
violates his right to equal protection
under the United States and California Constitutions. In summary, this constitutional challenge
runs as follows:
Section
29550.1 provides, inter alia, that where a city’s officer or agent arrests an
individual, the city is entitled to recover from the arrestee any criminal
justice administration fee imposed upon it by a county.
booking fee’s imposition being conditioned on the defendant’s ability to pay
the fee. In contrast, other statutes
that address booking fees—specifically, section 29550, subdivisions
(c) and (d),
name="_ftnref4" title="">[4]
and section 29550.2, subdivision (a)
specific requirements that the court determine that the defendant has the
ability to pay the fee. Defendant
argues: “[T]he three statutes treat the
similarly situated persons differently.
For a defendant who, like appellant, is booked into a county jail and
ultimately is convicted and not granted probation, the statutes make arbitrary
distinctions as to whether an order to pay a booking fee is mandatory or
discretionary[,] and whether imposition of the fee is contingent on a finding
that a defendant has the ability to pay the fee. The distinction is based solely on what
agency makes the underlying arrest. In
other words, because appellant was arrested by a city police officer, the
statute apparently imposes a mandatory booking fee requirement without regard
to ability to pay (section 29550.1). Had
he been arrested by a county sheriff’s deputy, the fee would have been
discretionary (section 29550). Had
appellant been arrested by any other type of agency, no booking fee could be
imposed unless the court first determined that he was able to pay it (section
29550.2).†Because (defendant argues)
there is no rational basis for this different treatment, the requirement under
section 29550.1 that a criminal justice administration fee be imposed,
irrespective of the defendant’s ability to pay it, violates equal protection.
Defendant
asserts that the proper remedy here is to imply an ability-to-pay clause in
section 29550.1. Under this approach,
since the court made no finding of defendant’s ability to pay the booking fee,
and there is no substantial evidence in the record upon which an implied court
finding of ability to pay may rest, the booking fee cannot withstand
attack. Defendant argues that the remedy
under the circumstances is for this court to strike the fee from the
judgment.
B. Discussion
of Equal Protection Challenge
1. Forfeiture
of Challenge
We
consider as a threshold matter whether defendant’s equal protection claim has
been forfeited because he failed to assert it below.
claim forfeited—a finding we do not make here—we will address it on its merits
as a question of law submitted on undisputed facts.
“ ‘
“No procedural principle is more familiar to this Court than that a
constitutional right,†or a right of any other sort, “may be forfeited in criminal
as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.†[Citation.]’
[Citation.]†(
589-590, quoting United States v. Olano
(1993) 507 U.S. 725, 731.) The purpose
of the forfeiture doctrine “ ‘is to encourage a defendant to bring errors to
the attention of the trial court, so that they may be corrected or avoided and
a fair trial had. . . .’ †(
1023.)
Our
high court has applied the doctrine of forfeiture in a variety of contexts to
bar claims not preserved in the trial court in which the appellant had asserted
an abridgement of fundamental constitutional rights. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 250; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) Courts in a number of instances have found
that the appellant’s unpreserved equal protection claims, such as the one made
by defendant here, were forfeited. (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.) The forfeiture doctrine generally applies to
the area of sentencing. (
reasonableness of probation conditions forfeited].)
Defendant
did not raise any challenge below to the imposition of the criminal justice
administration fee. This omission
occurred notwithstanding the recommendation that a booking fee of $129.75
payable to the City of Palo Alto “pursuant to Government Code [sections] 29550,
29550.1 and 29550.2†was made by the probation officer in the report available
to the parties and considered by the court.
Defendant
argues that his claim is not forfeited under the authority of
Cal.App.4th 1392 (Pacheco). In Pacheco,
this court held that the defendant’s challenges to the court’s imposition of a
booking fee under either sections 29550, subdivision (c) or 29550.2 (as well as
a probation and attorney fees) were not forfeited, notwithstanding his failure
to object to them at the trial court. (
because the court did not make a determination that defendant had the ability
to pay the fee and there was insufficient evidence to support such a
determination. (Ibid.)
his related arguments are that—because an ability-to-pay requirement should be
implied in section 29550.1 to save it from being unconstitutional—(1) the court
was required to make a finding that defendant had the ability to pay the
booking fee, and (2) there was no factual support for any such finding. Accordingly, we believe that
sufficiency-of-the-evidence challenges to a booking fee are cognizable offers
support for defendant’s position that he may assert his constitutional claim
here.
Even were we to conclude that Pacheco is
distinguishable because the nature of defendant’s challenge here is a
constitutional one, we would nonetheless find it cognizable. We recently held that a similar equal
protection challenge to section 29550.1 was not forfeited, reasoning: “Defendant's argument . . . is that the
statute under which the booking fee was imposed is unconstitutional on its face
unless a saving construction is supplied by reading it to require a finding of
ability to pay. Such a challenge may be
raised for the first time on appeal because the issue thus presented is ‘ “one
of law presented by undisputed facts in the record before us that does not
require the scrutiny of individual circumstances, but instead requires the
review of abstract and generalized legal concepts—a task that is suited to the
role of an appellate court.†’ (People
v. Delacy (2011) 192 Cal.App.4th 1481, 1493, quoting In re Sheena K.
(2007) 40 Cal.4th 875, 885; [citations].)â€
(People v. Mason (June 5, 2012, H036598) ___
Cal.App.4th ___ [2012 Lexis 653, *5-6] (Mason).)
Moreover,
even were we to find that defendant forfeited his equal protection challenge,
we nonetheless elect to decide it on the merits. (In re Sheena K., supra, 40 Cal.4th at p. 887,
fn. 7 [appellate courts may exercise their discretion to review otherwise
forfeited claims, generally ones involving important constitutional issues or
substantial rights].) This is the
approach we recently employed, stating:
“Even if it appeared that appellant had otherwise failed to preserve his
equal protection challenge for review, we would exercise our discretion to
entertain it because it represents an issue which has been arising frequently
but on which we find no published authority.†(Mason, supra, ___
Cal.App.4th ___ [2012 Lexis 653, *6].)
2. Merits
of Constitutional Challenge
There
are two requirements for a successful equal protection challenge. First, there must be “ ‘a showing that the
state has adopted a classification that affects two or more
manner.’ [Citations.]†(People
v. Hofsheier (2006) 37 Cal.4th 1185, 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530.) Secondly, the party asserting the claim must
show that there is no rational relationship to a legitimate state purpose for
the state’s having made a distinction between the two similarly situated
groups. (Hofsheier, at pp. 1200-1201.)
challenge to section 29550.1 fails because neither prerequisite is satisfied. (Mason,
supra, ___ Cal.App.4th ___ [2012 Lexis 653, *6-15].)
With
respect to the first—“similarly situated groupsâ€â€”prerequisite, we recently
held: “The statutory scheme at issue
here provides for payment orders and probation conditions effecting the reimbursement
of counties for at least part of their costs in booking persons arrested by
their own officers and the officers of other entities such as municipalities
and the state. [Citations.] It classifies defendants according to the
identity of the entity whose employees arrest them. Section 29550.1, which furnishes the
authority for the fee imposed on defendant, applies to persons arrested by an
officer or agent of a ‘city, special district, school district, community
college district, college, university, or other local arresting agency.’ Section 29550, subdivision (d) (§ 29550(d)),
applies to defendants arrested by officers of a county. Section 29550.2 applies to arrests by a
‘governmental entity not specified in Section 29550 or 29550.1,’ i.e., neither
a ‘local arresting agency’ nor a county, . . .
[¶] The three classes of prisoners thus created may be roughly
characterized as local arrestees, county arrestees, and state arrestees. Defendant’s challenge rests on the fact that
on the face of the statutes, a local arrestee may be required to pay a booking
fee without any showing that he is able to pay it, whereas state and county
arrestees, or at least some of them, may only be subjected to such a fee if
shown to possess such ability. [¶] . . .
[¶] We have concluded that for purposes of the statutes challenged here, local
arrestees are not ‘similarly situated’ to state and county arrestees. The lack of similarity arises from the fact
that under section 29550.1, a local arrestee is only liable for the fee
‘imposed by a county.’ The quoted phrase
is manifestly a reference to the charge described in section 29550, subdivision
(a)(1) (§ 29550(a)(1)), which entitles a county to ‘impose a fee’ on a local
arresting agency ‘for reimbursement of county expenses incurred with respect to
the booking or other processing of persons arrested by an employee’ of that
agency. The county may collect this
charge simply by ‘submit[ting] an invoice’ to the arresting agency. (§ 29550(a)(1).) And it is this charge which is passed on to
the local arrestee by section 29550.1.
[¶] The statutes provide no comparable mechanism for reimbursing the
county’s expenses when the arrest is not made by a local agency. When the county itself makes the arrest, it
obviously cannot reimburse itself; it must recover its expenses from the
arrestee, or not at all. Nor is any
provision made for reimbursement of county expenses when the arrest is made by
the state or other unenumerated entity. . . .
Thus, whereas sections 29550(d) and 29550.2 operate to reimburse a
county for its own expenses, section 29550.1 operates to reimburse the
arresting agency for sums it has already paid to, or at least been charged for
by, the county. [¶] Of course it scarcely
matters to the defendant whose account the proceeds go into. A difference of far greater significance to
him is the amount he may be required to pay.
And under the statutes as we read them, an arrest by a local agency has
the automatic effect of cutting in half the arrestee’s potential liability for
booking expenses. This is because
section 29550.1 empowers a local arresting agency to recover only the fee
‘imposed by a county,’ i.e., imposed on the arresting agency pursuant to
section 29550(a)(1), which limits the county’s recovery to ‘one-half’ of the
county’s ‘actual administrative costs . . . incurred in booking or otherwise
processing arrested persons.’ (§
29550(a)(1), italics added.) This means
that a local arrestee’s potential liability is exactly half what it would have
been if he had been arrested by a state or county agency, i.e., the county’s
‘actual administrative costs . . . incurred in booking or otherwise processing
arrested persons.’ (§ 29500, subd. (c)
(§ 29500(c)), 29550.2.) [¶] All
these statutes rest on the general premise that an arrestee, if convicted or
placed on probation, should generally be obligated to absorb these costs. To that extent all arrestees are similarly
situated. But beyond that point, a local
arrestee’s situation differs from that of a state or county arrestee in two
respects. First, part of his ‘debt’ to
the county has been already been defrayed by someone else—the arresting
agency—which, in relation to him, stands in something like the position of a
guarantor or subrogee. Second, and far
more critically, the debt has been cut in half.
For these reasons, when a local arrestee stands before the court at
sentencing, he is not situated similarly to state and county arrestees ‘ “for
purposes of the law challenged.†’
[Citation.]†(Mason, supra, ___ Cal.App.4th ___
[2012 Lexis 653, *6-13, fns. omitted.)
Defendant’s
equal protection challenge also fails because it does not meet the second
prerequisite of the constitutional claim. As we explained: “Even if defendant could satisfy the
‘similarly situated’ test, the foregoing considerations would establish a
rational basis for the differential treatment of which he complains. Section 29550.1 denies him a benefit granted to
other arrestees, i.e., the possibility of avoiding an assessment because he
lacks the ability to pay it. But in
conjunction with section 29550(a)(1), it also grants him a benefit denied to
other arrestees: in effect, automatic
forgiveness of half of his debt. This
arrangement grants advantages as well as disadvantages to two of the three
principals: The county receives a sure
source of reimbursement in exchange for writing off half its expenses; the
defendant receives the benefit of the write-off but give up the opportunity to
avoid all liability on grounds of inability to pay. Even the local agency receives the benefit of
an evident compromise, i.e., it does not assume the county’s whole burden but
only half of it, and it is granted the right to reimbursement without having to
prove the defendant’s ability to pay.
The Legislature could rationally conclude that this arrangement
justifies withholding an ability-to-pay condition as to this class of arrestees
because other arrestees are exposed to a potential debt of twice the size. A statutory classification ‘must be upheld
“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.†’ [Citation.]â€
(Mason, supra,
___ Cal.App.4th ___ [2012 Lexis 653, *13-14, fns. omitted.)
For
the foregoing reasons, we reject defendant’s claim that the imposition of the
booking fee under section 29550.1 violated his constitutional right to equal
protection.
II. Fine
and Penalty Assessment Under Penal Code Section 1202.5
A.
The
court imposed a $10 fine pursuant to Penal Code section 1202.5,
subdivision (a).
name="_ftnref10" title="">[10] Defendant contends that the order imposing
the fine must be stricken because there is no evidence in the record that he
had the ability to pay the fine. We
conclude that defendant has forfeited this challenge.
Where
a statute requires the court to impose a fine and compels the consideration of
the defendant’s ability to pay it, the
defendant must raise the issue in the trial court by objecting or demanding a
hearing. This is especially the case
when the probation report recommends the imposition of such a fine, as occurred
in this instance. If the defendant fails
to object or demand a hearing, he or she is barred from asserting it on appeal
based upon principles of forfeiture. (
740, 749-750.) This precise conclusion
was reached in rejecting a challenge to a fine imposed pursuant to
Cal.App.4th 368. There, the court
held: “Since defendant did not raise the
issue in the trial court, we reject his contention that the fines must be
reversed because the court did not make a finding of defendant’s
record shows he had the ability to pay.†(Id.
at p. 371.)
Defendant relies on
claim is not forfeited.
support his position. As noted,
ability-to-pay challenges to booking, probation, and attorney fees imposed by
the court in connection with a grant of probation. In holding that the challenges were not
forfeited notwithstanding the defendant’s failure to assert them at the trial
level, we relied on two attorney fees cases (People v. Viray (2005) 134 Cal.App.4th 1186, and
129 Cal.App.4th 1508). (
observed that the booking fee “must not exceed the actual administrative costs
of booking†(id. at p. 1400); the
probation fee must be based upon “ ‘the reasonable cost of any probation
supervision,’ †after referral of the defendant to the probation officer for
inquiry into ability to pay and the defendant’s receiving notice of the right
to counsel and court a hearing (id.
at pp. 1400-1401); and the attorney fee order, made after notice and hearing,
is based upon reimbursement of “ ‘all or a portion of the cost’ †of
legal assistance provided to the defendant either through a public defender or
private, court-appointed counsel (id.
at p. 1398). We concluded that the
record was devoid of evidence of the “actual administrative costs†relative to
the booking fee (id. at p. 1400);
the “statutory procedure†for determining or waiving the ability-to-pay
requirement for probation fees was not followed; (id. at p. 1401), and (3) the “statutory directive†(
connection with the attorney fee order (id.
at p. 1399). We held further that
neither a probation fee order (id. at
p. 1401), nor an attorney fee order may be imposed as a condition of probation
(id. at p. 1399).
Pacheco is readily distinguishable from
the circumstances before us. The statute
here mandates a definitive fee—“shall order . . . a fine of ten
dollars†(Penal Code § 1202.5, subd. (a))—rather than an open-ended
fee. Defendant was therefore on notice
that the fine related to the carjacking conviction was in issue and that he
should make an inability-to-pay objection.
Conversely, where a fee is open-ended, the People necessarily have an
initial burden of proof and a defendant can necessarily rely on a failure of
proof without having to object.
Additionally, the imposition of the fees in Pacheco was erroneous on grounds independent of the existence of
substantial evidence of the defendant’s ability to pay them. No evidence supported the amount of the
administrative fee and the statutory procedures for imposing the probation and
attorney fees were not followed.
Furthermore, the probation and attorney fees were assailable because the
court imposed them as conditions of probation.
We conclude therefore that
controlling, and we hold that, under Crittle,
supra, 154 Cal.App.4th at page 371, defendant
forfeited his appellate challenge to the fine imposed pursuant to Penal Code
section 1202.5, subdivision (a).
Defendant
makes the argument that we should nonetheless consider his claim because trial
counsel’s failure to object to the fine constituted ineffective
assistance. Defendant’s ineffective
assistance claim here fails because the record does not
demonstrate the reason trial counsel did not object to the fine imposed under
Penal Code section
1202.5, subdivision (a), and this is not a case
where there could be no satisfactory explanation for such failure. (People
v. Wilson, supra, 3
Cal.4th at p. 936.)
B. The
Penalty Assessment
At sentencing, the court announced
that it was imposing a “$10 fine plus penalty assessment, 1202.5.†This mirrored the recommendation of the
probation officer in her report. The
clerk’s minutes include this fine and note a penalty assessment of $30, and the
abstract of judgment similarly reflects “Fine(s) $10 + [$]30 PA [penalty
assessment] per 1202.5.â€
Defendant challenges separately
the $30 amount, arguing that the court acted improperly in making this
“unspecified ‘penalty assessment.’ †He
argues that the court was required to make an itemized breakdown of the penalty
assessment. The Attorney General
responds that the claim is forfeited and is in any event without merit.
As noted above, the forfeiture
doctrine is applied generally “in the context of sentencing as in other areas
of criminal law.†(In re Sheena K., supra,
40 Cal.4th at p. 881.)
Defendant was on notice that a penalty assessment, in addition to the
$10 fine, was recommended as part of the sentence in the probation officer’s
report. (See People v. Gonzalez, supra,
31 Cal.4th at p. 754.) He could
have readily objected to any claimed lack of specificity in the court’s order
at the time it was orally pronounced. We
conclude that defendant forfeited this challenge by failing to raise it below.
II. The
Abstract of Judgment
The
court imposed a concurrent 30-day jail sentence for the misdemeanor conviction
of fleeing a pursuing peace officer’s motor vehicle
(count 2). The clerk’s minutes properly
reflect this portion of the sentence, but the abstract of judgment does
not. Defendant contends that the
abstract should be modified to address this omission. The Attorney General indicates that she has
no objection to the request.
An abstract of judgment is
intended to provide an accurate summary of the judgment. (People
v. Hong (1998) 64 Cal.App.4th 1071, 1080.) The abstract, however, “is not the judgment
of conviction; it does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or
summarize. [Citation.]†(People
v. Mitchell (2001) 26 Cal.4th 181, 185.) An appeal will lie to correct an abstract of
judgment that does not accurately reflect the oral judgment of the sentencing
court. (Ibid.) Accordingly, we will
direct the trial court to amend the abstract to properly reflect that defendant
has been sentenced to a 30-day jail term for the count 2 conviction, said
sentence to run concurrently with the three-year prison sentence imposed for
the count 1 conviction.
DISPOSITION
The trial court
is directed to prepare an amended abstract of judgment that specifies that
defendant is sentenced to a 30-day jail term for the count 2 conviction, said
sentence to run concurrently with the three-year prison sentence imposed for
the count 1 conviction. The judgment is
affirmed.
Duffy, J.
WE CONCUR:
Rushing, P.J.
Premo, J.
name="_ftn1" title="">[1] Our summary of the facts is taken from the probation report.
name="_ftn2" title="">[2] All further statutory references are to the Government Code unless
otherwise stated.
