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The People v. Antoine J. Mccullough


March 22, 2011


Super. Ct. No. 09F08232 APPEAL from a judgment of the Superior Court of Sacramento County, Steve White, Judge.

The opinion of the court was delivered by: Murray , J.


Affirmed as modified.

Defendant Antoine J. McCullough entered a plea of no contest to being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admitted a prior prison term allegation (id., § 667.5, subd. (b)) in exchange for dismissal of the remaining counts and allegations and a stipulated state prison sentence of an aggregate term of four years. The court sentenced defendant accordingly.

Defendant appeals. The trial court granted defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5.)

Defendant contends there is no evidence to support a finding of his ability to pay a $270.17 jail booking fee and a $10 crime prevention fine. He also claims the crime prevention fine is inapplicable to his crime and thus unauthorized. Finally, he claims that he is entitled to additional presentence custody credit pursuant to recent amendments to Penal Code section 4019.

In the published portion of the opinion, we hold that defendant forfeited his challenge to the booking fee by failing to object in the trial court.

In the unpublished portion of the opinion, we modify the judgment by striking the crime prevention fee and awarding additional credits.



The People concede that the trial court imposed an unauthorized $10 crime prevention fine. We accept the concession. Penal Code section 1202.5 authorizes a $10 fine for specified offenses. Defendant was convicted of violating Penal Code section 12021, which is not listed in Penal Code section 1202.5.*fn2 We will order the $10 crime prevention fine stricken. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371-372 (Crittle).)


When defendant entered his plea, the trial court advised him that as a consequence, fees would be imposed. Having waived referral to probation, defendant was immediately sentenced following entry of his plea. When the court imposed the first fine, an $800 restitution fine, defense counsel asked that the court impose the statutory minimum amount of $200, claiming defendant was on a "fixed income." The court refused, finding $800 to be a "relatively low amount." Defendant does not challenge the restitution fine in this appeal. The court thereafter imposed other fees and fines to which defendant did not object, including a $20 court security surcharge fee, the unauthorized $10 crime prevention fine, a $51.34 jail classification fee not challenged in this appeal, and the $270.17 jail booking fee he does challenge.

The trial court did not cite the statutory authority for the $270.17 jail booking fee. Defendant suggests that it was imposed pursuant to Government Code section 29550.2.*fn3

The People claim that defendant "waived" his challenge to the booking fee by failing to object at sentencing. Defendant claims that waiver does not apply because he is challenging the lack of evidence to support a finding of his ability to pay the fee, citing the rule that a claim of insufficiency of the evidence to support a judgment is cognizable on appeal even absent such a claim in the trial court. We agree with the People.

This court has held on more than one occasion that in order to preserve a challenge to a fee or fine, a defendant must object in the trial court. (Crittle, supra, 154 Cal.App.4th at p. 371 [crime prevention fine -- Pen. Code, § 1202.5, subd. (a)]; People v. Hodges (1999) 71 Cal.App.4th 1348, 1357 (Hodges) [jail booking fee -- Gov. Code, § 29550.2].) Even sufficiency of the evidence claims with respect to fees and fines may be subject to forfeiture. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 (Gibson) [restitution fine -- Gov. Code, former § 13967, subd.(a)].)

Defendant relies primarily on People v. Butler (2003) 31 Cal.4th 1119 (Butler). His reliance is misplaced. Butler is distinguishable. That case did not involve a belated challenge to the imposition of a fee. Butler involved an order, not supported by a finding of probable cause, to submit to AIDS testing. (Id. at p. 1125.) Penal Code section 1202.1, subdivision (e)(6)(A) requires that a defendant convicted of certain enumerated sex crimes submit to AIDS testing when the trial court makes a finding of "probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." The trial court in Butler did not make an express finding of probable cause. The Supreme Court held that the defendant could challenge the sufficiency of the evidence supporting this order on appeal even in the absence of an objection in the trial court because the statute requires a finding of probable cause. (Butler, supra, 31 Cal.4th at p. 1126.)

As noted by the court, the holding in Butler is limited. "Our conclusion in this case is controlled not only by the specific terms of [Penal Code] section 1202.1 but also by the general mandate that involuntary HIV testing is strictly limited by statute. For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott[ (1994)] 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal . . . ." (Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) "[I]t remains the case that other sentencing determinations may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence. This includes claims that the record fails to demonstrate the defendant's ability to pay a fine [citations] . . . ." (Butler, supra, at p. 1130 (conc. opn. of Baxter, J.) Thus, Butler does not support defendant's position.

Defendant also relies upon People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), in which the court concluded the defendant did not forfeit his challenge to the imposition of court-appointed counsel cost reimbursement fees (Pen. Code, § 987.8), jail booking fees (Gov. Code, § 29550, subd. (c) & § 29550.2) and probation cost fees (Pen. Code, § 1203.1b) by failing to object to the imposition of those fees based on the trial court's failure to determine his ability to pay. Pacheco relied upon two cases in which the court determined that a defendant who fails to object to the imposition of a Penal Code section 987.8*fn4 court-appointed counsel cost reimbursement fee in the trial court is not barred from challenging the order on appeal -- People v. Viray (2005) 134 Cal.App.4th 1186, 1214-1217 (Viray) and People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 (Lopez). (Pacheco, supra, at pp. 1397, 1399.) Defendant relies upon those two cases as well. Discussion of Viray and Lopez is warranted. As will be seen, the reasoning justifying an exception to the forfeiture rule related to court-appointed counsel cost reimbursement fees does not apply to the failure to object to booking fees.

In Viray, the court found an exception to the forfeiture rule based on the defendant's right to effective assistance of counsel. "[W]e must consider respondent's contention that defendant has failed to preserve her challenge to the reimbursement order for appeal because she lodged no predicate objection in the trial court. We recognize that such a view has been adopted by published authority, but we find that authority distinguishable, and do not believe it can be rationally extended to bar objections to an order for reimbursement of counsel fees, for the reason that unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel's failure to object to an order reimbursing his own fees." (Viray, supra, 134 Cal.App.4th at p. 1214, original italics.) "We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment." (Id. at pp. 1215-1216, original italics.)

The conflict in Viray was particularly apparent because "it was defense counsel himself--the very person who was supposedly protecting defendant's rights in the matter--who brought the fee request to the court's attention" and requested that it be imposed. (Viray, supra, 134 Cal.App.4th at p. 1216.) The court reasoned that the defendant "was not, at that moment, 'represented by counsel' for purposes of the waiver rules on which the cited cases rely," and under the circumstances, it was "absurd to rely on the conduct of the attorney to impose a procedural forfeiture upon the client." (Ibid.)

Further emphasizing the distinction supporting an exception to the forfeiture rule, the court in Viray noted that its analysis would have no application where the defendant engaged independent counsel before the fee is ordered. "Such a case would be governed by the usual principles concerning preservation of objections by a represented party. [Citation.] Our remarks apply where, at the time of a reimbursement order, the defendant's sole representative is the same publicly financed counsel for whose services reimbursement is sought." (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.)

Lopez involves a different subdivision of Penal Code section 987.8. Unlike Viray, the defendant in Lopez was sentenced to prison. Penal Code section 987.8, subdivision (g)(2)(B) provides that "a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense" "[u]nless the court finds unusual circumstances." The court construed this provision to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (Lopez, supra, 129 Cal.App.4th at p. 1537.)

The statutory provisions governing court-appointed counsel cost reimbursement fees include procedural mechanisms designed to ensure due process. "'[P]roceedings to assess attorney's fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.' [Citation.] . . . Under [Penal Code section 987.8], a court may order a defendant, who has the ability to pay, to reimburse the county for the costs of legal representation. However, the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses. [Citations.] The statute also requires the court to advise a defendant--prior to the furnishing of legal counsel--of his potential liability for the costs of court-appointed counsel. [Citation.]"*fn5 (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73.)

Unlike Viray, there is no conflict of interest in this case. There is no statutory requirement, such as that required in Lopez, to find "unusual circumstances" before imposing the booking fee on a defendant sentenced to state prison. The statutory provisions concerning booking fees do not contain elaborate due process procedures like those contained in the provisions concerning court-appointed counsel cost reimbursement fees. There was no discussion in Pacheco of the cases in which the court held that a first-time-on-appeal evidentiary challenge to other fees is forfeited. In fact, relying on Viray and Lopez, the court in Pacheco stated the People had "offer[ed] nothing to convince [the court] otherwise." (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Consequently, we cannot agree with the holding in Pacheco, or its underlying reasoning, concerning jail booking fees.

Our reasoning in Gibson remains sound. In Gibson, the defendant contended the trial court erred by imposing a restitution fine without a determination that he had the ability to pay. (Gibson, supra, 27 Cal.App.4th at p. 1467.) Like here, the defendant failed to make this objection in the trial court. This court said, "[t]he purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law. [Citations.] [¶] As a matter of fairness to the trial court, a defendant should not be permitted to assert for the first time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court's alleged failure to consider defendant's ability to pay the fine. [Citation.] Rather, a defendant must make a timely objection in the trial court in order to give that court an opportunity to correct the error; failure to object should preclude reversal of the order on appeal. [Citations.]" (Gibson, supra, 27 Cal.App.4th at p. 1468.)

"Requiring the defendant to object to the fine in the sentencing court if he or she believes it is invalid places no undue burden on the defendant and ensures that the sentencing court will have an opportunity to correct any mistake that might exist, thereby obviating the need for an appeal. Conversely, allowing the defendant to belatedly challenge a restitution fine in the absence of an objection in the sentencing court results in the undue consumption of scarce judicial resources and an unjustifiable expenditure of taxpayer monies. It requires, in almost all cases, the appointment of counsel for the defendant at taxpayers' expense and the expenditure of time and resources by the Attorney General to respond to alleged errors which could have been corrected in the trial court had an objection been made. Moreover, it adds to the already burgeoning caseloads of appellate courts and unnecessarily requires the costly depletion of appellate court resources to address purported errors which could have been rectified in the trial court had an objection been made. This needless consumption of resources and taxpayer dollars is unacceptable, particularly since it greatly exceeds the amount of the fine at issue. Statewide, taxpayers are spending hundreds of thousands of dollars on challenges to relatively minuscule restitution fines." (Gibson, supra, 27 Cal.App.4th at p. 1469.) This reasoning applies with equal force to the failure to object to jail booking fees. (See Hodges, supra, 71 Cal.App.4th at p. 1357.)

In People v. Forshay (1995) 39 Cal.App.4th 686, the court analogized defendant's failure to object to a restitution fine to the circumstances in People v. Welch (1993) 5 Cal.4th 228, 234-236, which held "that the reasonableness of a probation condition is waived if not raised at the time of sentencing. In so holding, the Supreme Court distinguished factual errors from legal ones. The latter are ordinarily not waived, because they 'can be resolved without reference to the particular sentencing record developed in the trial court.'" (Id. at p. 235.) The issue here is one of fact. A party, aware of relevant facts, cannot withhold them from the court and then blame the tribunal for failing to ferret out that known to the party all along." (Forshay, supra, 39 Cal.App.4th at p. 689.) The same applies to a belated claim of inability to pay booking fees.

Here, defendant did not object in the trial court to the imposition of the $270.17 jail booking fee. The forfeiture rule applies. Defendant is barred from challenging the booking fee on appeal.


The court awarded 66 actual days and 33 conduct days for a total of 99 days of presentence custody credit. Defendant claims he is entitled to additional credit pursuant to recent amendments to Penal Code section 4019. We agree.

We conclude that the recent amendments to the statutes involving custody credits apply here. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) The record on appeal does not reflect that defendant is among the prisoners excepted from the additional accrual of credit. (Pen. Code, §§ 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, & 2933, as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Consequently, defendant, having served a total of 66 actual days, is entitled to 66 conduct days, for a total of 132 days of presentence custody credit. We shall modify the judgment accordingly.


The judgment is modified, striking the $10 crime prevention fine and awarding defendant 66 conduct days for a total of 132 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur: RAYE , P.J. BUTZ ,J.

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