IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SERGIO RAMOS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08362)
The opinion of the court was delivered by: Butz ,j.
P. v. Ramos
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a negotiated plea, defendant Sergio Ramos pleaded no contest to voluntary manslaughter and admitted a firearm use enhancement. (Pen. Code, §§ 192, subd. (a)(1), 12022.5, subd. (a).) He was sentenced to an aggregate term of 21 years in state prison.
On appeal, defendant challenges the trial court's imposition of a $263.85 main jail booking fee and $28.75 main jail classification fee pursuant to Government Code section 29550.2,*fn1 on the ground that there was no substantial evidence that he had the ability to pay them. We conclude that, because defendant failed to raise the issue in the trial court, he may not challenge the fees for the first time on appeal. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts surrounding defendant's conviction are not relevant to the issues raised on this appeal. Defendant was charged with first degree murder and attempted robbery with special circumstances. He accepted a plea of no contest to voluntary manslaughter with an enhancement for firearm use; the remaining counts were dismissed. A probation report was prepared. Neither party submitted sentencing pleadings to the trial court.
The court sentenced defendant to the high term of 11 years on the manslaughter conviction, plus a consecutive 10-year term on the firearm enhancement, for a total state prison sentence of 21 years.
The court also imposed a restitution fine in the amount of $4,200, an additional $4,200 restitution fund fine imposed and stayed pending defendant's successful completion of parole, and ordered that he reimburse the Victim Restitution Violent Crime Program in the amount of $19,050. The court then stated, "The other fees and charges set forth in the probation report [Nos.] 5 through 8 are imposed." Finally, the court imposed the "cost of preparing the report and the other cost as set forth on page 10 of the probation report."
The abstract of judgment shows that defendant was ordered to pay a "main jail booking fee" of $263.85 and "main jail classification fee" of $28.75.
I. Discrepancy Between the Oral Pronouncement and the Abstract
Defendant contends that the "main jail booking fee" of $263.85 and "main jail classification fee" of $28.75 (collectively jail fees) in the abstract of judgment must be stricken because they are at variance with the court's pronouncement of sentence. It is of course, settled that where there is a discrepancy between the abstract and the court's oral pronouncement of sentence, the oral pronouncement controls. (People v. Zachery (2007) 147 Cal.App.4th 380, 385.)
The argument is based on the court's statement, "I will also impose cost of preparing the [probation] report and the other cost as set forth on page 10 of the probation report." (Italics added.) Pointing out that only a $30 court facility fee appears on page 10 and that the court's use of the word "cost" in the singular indicates an intent to impose only one fee, defendant contends imposition of the jail fees is inconsistent with the oral pronouncement.
Defendant overlooks the trial court's earlier statement that "The other fees and charges set forth in the probation report [Nos.] 5 through 8 are imposed." (Italics added.) The main jail booking fee appears as item No. 6 and the main jail classification fee appears as item No. 7 in the report. Consequently, the record leaves no doubt that the court orally imposed each of the subject fees.*fn2
II. Jail Fees
The trial court ordered that defendant pay the booking fee and classification fee as set forth in the probation report. The report states that both jail fees are authorized under section 29550.2.
Section 29550.2, subdivision (a) provides, in pertinent part, "Any person booked into a county jail pursuant to any arrest . . . is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c) . . . . If 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, and execution shall be issued on the order in the same manner as a judgment in a civil action . . . ." (Italics added.) Subdivision (c) of the same section authorizes fees for booking and classification while in jail.
Defendant claims that since the statute is predicated on a defendant's ability to pay and there was no evidence before the court that he had such ability, the fees were improperly imposed. The Attorney General counters that defendant forfeited this issue by not objecting to payment of the jail fees in the trial court.
Defendant's argument finds support in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). There, the defendant contended the trial court could not impose "the $259.50 criminal justice administration fee under Government Code section 29550, subdivision (c) or 29550.2, the $64 per month probation fee under Penal Code section 1203.1b, and the $100 attorney fee order under Penal Code section 987.8 without determining his ability to pay these fees, and that there is insufficient evidence to support any such determination. All three statutes authorize the fines or fees expressly subject to a defendant's ability to pay them." (Pacheco, at p. 1397.)
The Pacheco court rejected the People's claim that the defendant had forfeited his argument by not raising an objection to any of these fees in the trial court, concluding that claims based on the insufficiency of the evidence "do not require assertion in the court below to be preserved on appeal." (Pacheco, supra, 187 Cal.App.4th at p. 1397, citing People v. Viray (2005) 134 Cal.App.4th 1186, 1217.)
Pacheco, however, overlooks a long line of cases that have held that evidentiary challenges to fines and fees may not be raised on appeal in the absence of an objection in the trial court. (See 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]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1467 (Gibson) [restitution fine--Gov. Code, former § 13967, subd. (a)].) Gibson is a decision out of this court.
There is a conflict between Pacheco and the cases just cited. Recently, the California Supreme Court has agreed to resolve the conflict. (See People v. McCullough (2011) 193 Cal.App.4th 864, review granted on June 29, 2011, S192513.)
Until the California Supreme Court issues further guidance, we continue to adhere to our holding in Gibson; i.e., that a failure to object to a fee or fine in the trial court forfeits the issue, even where the statute contemplates a judicial finding of ability to pay and the defendant challenges the sufficiency of the evidence to support such a finding. (Gibson, supra, 27 Cal.App.4th at pp. 1467, 1468-1469.) "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." (Gibson, at p. 1468.)
In his reply brief, defendant contends that the reasoning of Pacheco finds support in the California Supreme Court case of People v. Butler (2003) 31 Cal.4th 1119 (Butler), in which the state's high court held that a defendant convicted of a sex offense could challenge the sufficiency of the evidence to support an order for compulsory HIV testing under Penal Code section 1202.1, notwithstanding the lack of an objection in the trial court. (Butler, at pp. 1127-1128.) The statute required that the court find probable cause that bodily fluids had been transmitted from the defendant to the victim. (Id. at p. 1125, citing Pen. Code, § 1202.1, subd. (e)(6)(A).)
However, the Butler holding was compelled by the "general mandate that involuntary HIV testing is strictly limited by statute." (Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) For that reason, Butler itself cautioned that "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, at p. 1128, fn. 5.) As Justice Baxter noted in his concurring opinion in Butler, "[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., joined by Chin, J.), second italics added.) Accordingly, Butler fails to persuade us that we should depart from the rule of forfeiture with respect to fines and fees.
As we noted in Gibson, it is inherently unfair to permit a defendant to obtain an automatic reversal by remaining silent about his inability to pay in the trial court, especially where the matter could easily have been corrected by appropriate objection. Not applying forfeiture principles in such cases would not only encourage attorney gamesmanship, but deplete judicial resources and waste taxpayer money. (See Gibson, supra, 27 Cal.App.4th at pp. 1468-1469.)
We conclude that defendant's failure to raise the issue of his ability to pay the main jail classification fee and main jail booking fee in the trial court precludes review for the first time on appeal.
The judgment is affirmed.
We concur: BLEASE , Acting P.J. MAURO ,J.