IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TERRENCE LAMONT DAVIS ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 09F06574)
The opinion of the court was delivered by: Robie , J.
P. v. Davis
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Terrence Lamont Davis and Douglas Gene Walls pled no contest to possessing cocaine base for sale. Davis admitted a prior strike. The trial court sentenced Davis to six years in prison and Walls to four years in prison.
The crime took place in September 2009. Walls was stopped by police because he was riding his bicycle against traffic. During the stop, the police searched Walls' pocket and found 1.02 grams of cocaine in individually wrapped pieces. There was a text message on Walls' phone from Davis "relay[ing] a message [about] dropping off narcotics." Police then searched Davis's apartment and found 6.87 grams of cocaine base, packaging materials, and a scale.
Davis and Walls both appeal their convictions. Counsel for Walls has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel for Davis raises issues relating to Davis's fines and fees. Agreeing that one of Davis's fees must be stricken, but finding no error that would result in a disposition more favorable to Walls, we affirm the judgment as modified as to Davis and affirm the judgment as to Walls.
Davis contends the court improperly imposed the following four fees: (1) a $460 crime prevention fee; (2) a $270.17 main jail booking fee and $51.34 main jail classification fee; (3) a $150 drug program fee; and (4) a $702 presentence report fee. As we explain, the crime prevention fee must be stricken, but Davis's challenges to the remaining fees are forfeited.
The Crime Prevention Fee Must Be Stricken
The court ordered defendant to pay a $460 crime prevention fee. (Pen. Code, § 1202.5.) That fee applies to defendants who have been "convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594." (Pen. Code, § 1202.5, subd. (a).) Davis was convicted of possessing cocaine base for sale (Health & Saf. Code, § 11351.5), so the crime prevention fee could not apply under any circumstance here and must be stricken.
Davis Has Forfeited His Arguments
Regarding The Remaining Fees
The court ordered Davis to pay a $270.17 main jail booking fee and a $51.34 main jail classification fee (Gov. Code, § 29550.2, subd. (a)), a $150 drug program fee (Health & Saf. Code, § 11372.7), and a $702 presentence report fee (Pen. Code, § 1203.1b). Davis argues the court made no finding he had the ability to pay these fees, which is required under these statutes and, in any event, the court had insufficient evidence he had the ability to pay. Davis further argues that as to the two jail fees, there was no evidence of the actual administrative costs of booking or classification and, as to the presentence report fee, he was not informed of his right to a hearing on that fee and did not knowingly and intelligently waive that right, both of which are required by statute.
The People argue Davis has forfeited these arguments by not objecting in the trial court. We agree. The right to appellate review of a non-jurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This rule of forfeiture has been repeatedly applied to the challenge of a fine or fee on appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) As to Davis's argument he is challenging the sufficiency of evidence to support imposition of these fees and such a challenge is not forfeited by failure to object in the trial court, this court has held that even sufficiency of the evidence claims with respect to fees and fines are subject to forfeiture. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 [restitution fine -- Gov. Code, former § 13967, subd. (a)].)
While the forfeiture rule might seem inconsistent with the requirement of a knowing and intelligent waiver of hearing on the ability to pay the cost of the probation report (Pen. Code, § 1203.1b), the knowing and intelligent waiver requirement has been found not to apply to appellate review. (See People v. Valtakis, supra, 105 Cal.App.4th at p. 1075.) "[Penal Code] section 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting costs arising from criminal acts back to convicted defendants and replenishing public coffers from the pockets of those who have directly benefited from county expenditures." (People v. Bradus (2007) 149 Cal.App.4th 636, 643.) It would be inconsistent with this legislative policy to permit convicted defendants to stand silently by, and to raise the issue for the first time on appeal, thus draining both appellate and trial court resources in the process. (People v. Valtakis, supra, 105 Cal.App.4th at p. 1076.) Davis therefore has forfeited his argument regarding the remaining fees.
Counsel for Walls has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Walls was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed and we have received no communication from Walls. Having undertaken an examination of the entire record, we find no error that would result in a disposition more favorable to Walls.
The judgment as to Davis is modified to strike the $460 crime prevention fee. (Pen. Code, § 1202.5.) As modified the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment striking that fee and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment as to Walls is affirmed.
We concur: NICHOLSON , Acting P. J. MURRAY , J.
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