(Super. Ct. No. 09F06359)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Harris entered a no contest plea to purchasing or receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); undesignated section references are to this code) with a prior for vehicle theft (§ 666.5; Veh. Code, § 10851), and admitted a strike prior (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term allegation (§ 667.5, subd. (b)). Defendant entered his plea and admissions in exchange for dismissal of the remaining count and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and a stipulated nine-year state prison term, that is, the upper term of four years for the offense, doubled for the strike prior, plus one year for the prior prison term. Defendant waived referral to probation. The trial court sentenced defendant accordingly and imposed various fees and fines, including an $1,800 restitution fine, an $1,800 parole revocation restitution fine, a $30 court security fee, victim restitution to be determined, a $30 court facilities fee, a $287.78 main jail booking fee, and a $59.23 jail classification fee.
Defendant appeals. His sole contention is that the order imposing the booking fee and classification fee must be reversed because the trial court failed to make a finding of ability to pay and insufficient evidence supports an implied finding of the same. We conclude that defendant has forfeited the issue.
Defendant recognizes several decisional authorities which have held that appellate claims based on the lack of ability to pay findings with respect to certain fees and fines are forfeited by a failure to object in the trial court (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [failure to object in trial court forfeited challenge to sex offender fine based on ability to pay]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [failure to object in trial court forfeited challenge to crime prevention fine based on lack of ability to pay finding]; People v. Robinson (2002) 104 Cal.App.4th 902, 903-906 [failure to object in trial court forfeited challenge based on procedural irregularities and lack of ability to pay costs of preparing probation report]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [failure to object in trial court forfeited challenge to jail booking fee]). Defendant argues the foregoing cases were "erroneously decided" and notes People v. Pacheco (2010) 187 Cal.App.4th 1392 which concluded otherwise. In finding that an ability to pay finding was a prerequisite to impose a booking fee, Pacheco overlooked cases which held to the contrary. (Id. at p. 1400.) The California Supreme Court granted review on June 29, 2011, in People v. McCullough (2011) 193 Cal.App.4th 864, 867, S192513 [failure to object in trial court forfeited challenge to sufficiency of evidence of ability to pay jail booking fee], to resolve the conflict.
Until the California Supreme Court decides otherwise, we will follow the long line of cases which have held that challenges to the lack of a finding of an ability to pay a fee or fine and the sufficiency of the evidence to support the same are forfeited due to the failure to object in the trial court.
We note an error in preparation of the abstract of judgment. The trial court imposed a $30 court security fee and a $30 court facilities fee. While the court security fee is listed on the abstract, the facilities fee is not. We will order the abstract corrected accordingly.
The trial court is directed to prepare a corrected abstract of judgment to reflect the $30 court facilities fee and to forward a certified copy of the corrected abstract to the
Department of Corrections and Rehabilitation. The ...