(Santa Clara County Super. Ct. No. EE806813) Trial Court: Santa Clara County Superior Court No.: EE806813 Trial Judge: The Honorable David A. Cena
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Defendant Jeffrey Allen Mason was convicted of residential burglary and sentenced to life in prison. On appeal he challenges a $129.75 "[c]riminal justice fee" the court ordered him to pay to the City of Sunnyvale pursuant to Government Code section 29550.1. He contends that the fee cannot withstand appellate scrutiny because (1) an ability-to-pay requirement must be read into the statute to avert an equal protection challenge, and there was no evidence before the trial court of his ability to pay the fee; and (2) there was no evidence of the actual administrative costs the fee was intended to reimburse. Respondent contends that these objections are not cognizable on appeal because defendant failed to assert them below, and that they fail on the merits. We conclude that imposing this fee without finding an ability to pay does not deprive defendant of the equal protection of the laws, because he is not similarly situated to the defendants to whom he compares himself, and a conceivable rational basis exists for treating him differently. We further conclude that the statute does not require a finding by the sentencing court of the actual costs in which the fee originated. Accordingly we will affirm the judgment.
Defendant admitted participating in two residential burglaries in Sunnyvale. He entered a no contest plea to one burglary charge and admitted six strike convictions in exchange for dismissal of a second burglary charge. The court denied a motion to dismiss strike priors and sentenced defendant to imprisonment for 36 years to life, consecutive to 30 years. After ordering defendant to pay $13,000 in victim restitution, the court assessed a number of other charges, including $129.75 described at the hearing as a "[c]riminal justice fee to the City of Sunnyvale."
Defendant filed this timely appeal.
I. Availability of Objection on Appeal
Defendant contends that the trial court erred by imposing the $129.75 criminal justice fee, also known as a "booking fee." (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 (Pacheco).) Defendant concedes that the fee was imposed under Government Code section 29550.1 (§ 29550.1), which calls for the imposition of such a fee but does not by its terms require a finding that the defendant can pay it. Defendant contends in essence that such a requirement must be read into the statute to save it from constitutional infirmity. He also contends that the trial court was required to find that the amount imposed was based upon the actual costs incurred in booking him. He asserts that the record contains insufficient evidence to support either of these assertedly required findings.
Respondent's chief response to these contentions is that defendant forfeited them by failing to raise them in the trial court. The parties treat this question as turning on the soundness of our decision in People v. Pacheco, supra, 187 Cal.App.4th 1392, which in turn followed our decision in People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray), which in turn quoted People v. Butler (2003) 31 Cal.4th 1119, 1126, for the rule that the absence of substantial evidence to support a challenged judicial action presents an " 'obvious exception' " to the requirement that an objection must be asserted in the trial court before it can be heard on appeal. (Pacheco, supra, at p. 1397.)*fn1 If the trial court was indeed required to find the facts asserted by defendant, then the absence of substantial evidence to support such findings would indeed point to error which could, under the cited rule, be raised for the first time on appeal. This is a sound rule of long standing. We decline respondent's invitation to repudiate it or our holding in Pacheco.
Respondent also asserts cursorily that defendant forfeited the legal predicate for this challenge--his equal protection argument--by failing to assert it below. The only authority cited is People v. Alexander (2010) 49 Cal.4th 846, 880, footnote 14. But the argument held to have been forfeited there was that the defendant's right to equal protection had been violated by the trial court's "application of [an earlier] holding" concerning the retroactive effect of a statute regulating certain evidence. (Id. at p. 880.) Defendant's argument here, as we understand it, is that the statute under which the booking fee was imposed is unconstitutional on its face unless a saving construction is supplied by reading it to require a finding of ability to pay. Such a challenge may be raised for the first time on appeal because the issue thus presented is " 'one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts--a task that is suited to the role of an appellate court.' " (People v. Delacy (2011) 192 Cal.App.4th 1481, 1493, quoting In re Sheena K. (2007) 40 Cal.4th 875, 885; see In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323, citations omitted ["appellate courts have discretion to address constitutional issues raised on appeal . . . , particularly where the issue presented is 'a pure question of law' turning on undisputed facts . . . or when ' "important issues of public policy are at issue" ' "]; In re Sheena K., supra, at p. 888 [facial challenge to probation condition not forfeited where, among other things, claimed error raised "a pure question of law, easily remediable on appeal by modification of the condition"].)
Even if it appeared that appellant had otherwise failed to preserve his equal protection challenge for review, we would exercise our discretion to entertain it because it represents an issue which has been arising frequently but on which we find no published authority. To lay that issue to rest, at least in the present factual setting, we will reach the merits of defendant's argument.
" 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting In re Eric J. (1979) 25 Cal.3d 522, 530, italics omitted; see People v. Olague (2012) ___ Cal.App.4th ___ [2012 WL 1571201, *2] ["To succeed on an equal protection claim, a defendant must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."]. ) Such a showing requires ...