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The People v. Michael andreas Shares


June 25, 2012


(Super. Ct. No. 07F08182)

The opinion of the court was delivered by: Murray , J.

P. v. Shares



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Andreas Shares entered a plea of no contest to unlawful possession of cocaine for sale, transportation of cocaine, unlawful possession of MDMA, and transportation of MDMA.*fn1 (Health & Saf. Code, §§ 11351, 11352, subd. (a), 11377, subd. (a), 11379, subd. (a).) Sentenced to three years in prison, defendant appeals.

Defendant contends there is no evidence to support a finding of his ability to pay a $63.85 jail booking fee and a $28.75 jail classification fee imposed at sentencing. He also notes that the abstract of judgment must be corrected to accurately reflect the booking fee imposed.

We conclude that defendant forfeited his challenge to the booking and classification fees by failing to object in the trial court. Accordingly, we shall order a correction to the abstract of judgment and otherwise affirm.


I. Jail Booking and Classification Fees

Defendant waived referral to probation and was sentenced to the stipulated term of three years in state prison. The trial court then imposed a $600 restitution fine and other fees and fines to which defendant did not object, including a $120 court security surcharge fee, a $120 court facility fee, a $50 drug laboratory fee, a $150 drug program fee, and the $28.75 jail classification fee and $63.85 jail booking fee defendant challenges here.

The trial court cited Government Code section 29550.2 as the statutory authority for the jail booking and classification fees.*fn2

The People claim that defendant forfeited his challenge to the booking and classification fees by failing to object at sentencing. Defendant claims that forfeiture does not apply because he is challenging the lack of evidence to support a finding of his ability to pay the fee, citing the rule that a claim of insufficiency of the evidence to support a judgment is cognizable on appeal even absent such a claim in the trial court. We agree with the People.

This court has held on more than one occasion that in order to preserve a challenge to a fee or fine, a defendant must object in the trial court. (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 (Hodges) [jail booking fee -- Gov. Code, § 29550.2].) Even sufficiency of the evidence claims with respect to fees and fines may be subject to forfeiture. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 (Gibson) [restitution fine -- Gov. Code, former § 13967, subd. (a)].)

Defendant relies primarily upon People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1400 (Pacheco), in which the Court of Appeal concluded the defendant did not forfeit his challenge to the imposition of court-appointed counsel cost reimbursement fees (Pen. Code, § 987.8), jail booking fees (Gov. Code, § 29550, subd. (c) & § 29550.2) and probation cost fees (Pen. Code, § 1203.1b) by failing to object to the imposition of those fees based on the trial court's failure to determine his ability to pay. Pacheco relied upon two cases in which the court determined that a defendant who fails to object to the imposition of a Penal Code section 987.8*fn3 court-appointed counsel cost reimbursement fee in the trial court is not barred from challenging the order on appeal -- People v. Viray (2005) 134 Cal.App.4th 1186, 1213-1217 (Viray) and People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537 (Lopez). (Pacheco, supra, 187 Cal.App.4th at pp. 1397, 1399.) Discussion of Viray and Lopez is warranted. As will be seen, the reasoning justifying an exception to the forfeiture rule related to court-appointed counsel cost reimbursement fees does not apply to the failure to object to booking and classification fees.

In Viray, the court found an exception to the forfeiture rule based on the defendant's right to effective assistance of counsel. "[W]e must consider respondent's contention that defendant has failed to preserve her challenge to the reimbursement order for appeal because she lodged no predicate objection in the trial court. We recognize that such a view has been adopted by published authority, but we find that authority distinguishable, and do not believe it can be rationally extended to bar objections to an order for reimbursement of counsel fees, for the reason that unless the defendant has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel's failure to object to an order reimbursing his own fees." (Viray, supra, 134 Cal.App.4th at p. 1214, original italics.) "We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees. It seems obvious to us that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment." (Id. at pp. 1215-1216, original italics.)

The conflict in Viray was particularly apparent because "it was defense counsel himself--the very person who was supposedly protecting defendant's rights in the matter--who brought the fee request to the court's attention" and requested that it be imposed. (Viray, supra, 134 Cal.App.4th at p. 1216.) The court reasoned that the defendant "was not, at that moment, 'represented by counsel' for purposes of the [forfeiture] rules on which the cited cases rely," and under the circumstances, it was "absurd to rely on the conduct of the attorney to impose a procedural forfeiture upon the client." (Ibid.)

Further emphasizing the distinction supporting an exception to the forfeiture rule, the court in Viray noted that its analysis would have no application where the defendant engaged independent counsel before the fee is ordered. "Such a case would be governed by the usual principles concerning preservation of objections by a represented party. [Citation.] Our remarks apply where, at the time of a reimbursement order, the defendant's sole representative is the same publicly financed counsel for whose services reimbursement is sought." (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.)

Lopez involved a different subdivision of Penal Code section 987.8. Unlike Viray, the defendant in Lopez was sentenced to prison. Penal Code section 987.8, subdivision (g)(2)(B) provides that "a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense" "[u]nless the court finds unusual circumstances." The court construed this provision to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (Lopez, supra, 129 Cal.App.4th at p. 1537.)

The statutory provisions governing court-appointed counsel cost reimbursement fees include procedural mechanisms designed to ensure due process. "'[P]roceedings to assess attorney's fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.' [Citation.] . . . Under [Penal Code section 987.8], a court may order a defendant, who has the ability to pay, to reimburse the county for the costs of legal representation. However, the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses. [Citations.] The statute also requires the court to advise a defendant--prior to the furnishing of legal counsel--of his potential liability for the costs of court-appointed counsel. [Citation.]"*fn4 (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73.)

Unlike Viray, there is no conflict of interest in this case. There is no statutory requirement, such as that required in Lopez, to find "unusual circumstances" before imposing the booking and classification fees on a defendant sentenced to state prison. The statutory provisions concerning booking and classification fees do not contain elaborate due process procedures like those contained in the provisions concerning court-appointed counsel cost reimbursement fees. There was no discussion in Pacheco of the cases in which the court held that an evidentiary challenge to other fees, raised for the first time on appeal, is forfeited. In fact, relying on Viray and Lopez, the court in Pacheco stated the People had "offer[ed] nothing to convince [the court] otherwise." (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Consequently, we cannot agree with the holding in Pacheco, or its underlying reasoning, concerning jail booking and classification fees.

Our reasoning in Gibson remains sound. In Gibson, the defendant contended the trial court erred by imposing a restitution fine without a determination that he had the ability to pay. (Gibson, supra, 27 Cal.App.4th at p. 1467.) Like here, the defendant failed to make this objection in the trial court. This court said, "[t]he purpose of the [forfeiture] doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law. [Citations.] [¶] 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. [Citations.]" (Gibson, supra, 27 Cal.App.4th at p. 1468.)

"Requiring the defendant to object to the fine in the sentencing court if he or she believes it is invalid places no undue burden on the defendant and ensures that the sentencing court will have an opportunity to correct any mistake that might exist, thereby obviating the need for an appeal. Conversely, allowing the defendant to belatedly challenge a restitution fine in the absence of an objection in the sentencing court results in the undue consumption of scarce judicial resources and an unjustifiable expenditure of taxpayer monies. It requires, in almost all cases, the appointment of counsel for the defendant at taxpayers' expense and the expenditure of time and resources by the Attorney General to respond to alleged errors which could have been corrected in the trial court had an objection been made. Moreover, it adds to the already burgeoning caseloads of appellate courts and unnecessarily requires the costly depletion of appellate court resources to address purported errors which could have been rectified in the trial court had an objection been made. This needless consumption of resources and taxpayer dollars is unacceptable, particularly since it greatly exceeds the amount of the fine at issue. Statewide, taxpayers are spending hundreds of thousands of dollars on challenges to relatively minuscule restitution fines." (Gibson, supra, 27 Cal.App.4th at p. 1469.) This reasoning applies with equal force to the failure to object to jail booking and classification fees. (See Hodges, supra, 71 Cal.App.4th at p. 1357.)

In People v. Forshay (1995) 39 Cal.App.4th 686, the court analogized defendant's failure to object to a restitution fine to the circumstances in People v. Welch (1993) 5 Cal.4th 228, at pages 234-236, which held "that the reasonableness of a probation condition is [forfeited] if not raised at the time of sentencing. In so holding, the Supreme Court [in Welch] distinguished factual errors from legal ones. The latter are ordinarily not [forfeited], because they 'can be resolved without reference to the particular sentencing record developed in the trial court.'" (Id. at p. 235.) The issue here is one of fact. A party, aware of relevant facts, cannot withhold them from the court and then blame the tribunal for failing to ferret out that known to the party all along." (Forshay, supra, 39 Cal.App.4th at p. 689.) The same applies to a belated claim of inability to pay booking and classification fees.

Here, defendant did not object in the trial court to the imposition of the $63.85 jail booking fee and the $28.75 jail classification fee. The forfeiture rule applies. Defendant is barred from challenging these fees on appeal.

II. Correction to Abstract of Judgment

As indicated herein, the trial court imposed a $63.85 jail booking fee. The abstract of judgment, however, erroneously reflects a jail booking fee of $263.85. We agree with the parties that the abstract of judgment must be corrected to reflect the amount orally imposed at sentencing. (People v. Mitchell (2001) 26 Cal.4th 181, 185.


The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting a jail booking fee in the amount of $63.85 and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON , Acting P. J. HULL , J.

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