IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHARLES EDWARD BLANKS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F05540)
The opinion of the court was delivered by: Duarte ,j.
P. v. Blanks
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Charles Edward Blanks pled no contest to unlawful sexual intercourse with a minor under 16. Although defendant objected and argued that he lacked an ability to pay fees, at sentencing the trial court imposed a $287.78 booking fee and a $59.23 main jail classification fee, pursuant to Government Code section 29550.2.
Defendant now contends the fees were imposed based on insufficient evidence that he had the ability to pay. The
People concede error.
Government Code 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.
A trial court's finding of an ability to pay may be implied, and will be upheld on appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 70-71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920-921.)
Here, the trial court made no explicit findings, stating only that it would impose both fees "over defense objection."
Nor does the probation report support an implied finding of ability to pay. According to the probation report, defendant did not graduate from high school, has no further educational degree, is not employed, has not served in the military, is disabled, and supports two people on his social security disability payment of $850 per month. Thus there is no evidence whatsoever to support any finding that defendant has the ability to pay the booking and classification fees. We therefore accept the People's concession.
We recognize that we have the option, requested by the People, of remanding the case to the sentencing court for an express determination of defendant's ability to pay. Given the state of the record and in the interests of judicial economy, we decline to do so. Instead, we shall strike the fees, which is another option available to us in this situation. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403.)
The booking and classification fees imposed pursuant to Government Code section 29550.2 are ordered stricken. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. ROBIE , J.
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