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The People v. Antoine J. Mccullough

April 22, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTOINE J. MCCULLOUGH, DEFENDANT AND APPELLANT.



Court: Superior County: Sacramento Judge: Stephen W. White Ct.App. 3 C064982 Super. Ct. No. 09F08232

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

Sacramento County

Defendant Antoine J. McCullough pleaded no contest to being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admitted a prior prison term allegation (id., § 667.5, subd. (b)). The court imposed the stipulated state prison sentence of four years. It also ordered defendant to pay a $270.17 jail booking fee (booking fee).

Defendant claims the statute authorizing the court to impose a booking fee required the court to determine if he was able to pay it. (See Gov. Code, § 29550.2, subd. (a) ["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 [booking] fee by the convicted person . . . ."].) Defendant contends that he is entitled to challenge this fee order for sufficiency of the evidence for the first time on appeal.*fn1 We granted review to determine whether a defendant who failed to object that the evidence was insufficient to support a finding of his ability to pay a booking fee when the court imposed it has forfeited his right to challenge the fee on appeal. For the reasons stated below, we conclude that a defendant who fails to contest the booking fee when the court imposes it forfeits the right to challenge it on appeal.

I. FACTUAL AND PROCEDURAL HISTORY

Because neither party petitioned for rehearing, we take most of the relevant facts from the Court of Appeal opinion. (See Cal. Rules of Court, rule 8.500(c)(2).) Defendant pleaded no contest to being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admitted a prior prison term allegation (id., § 667.5, subd. (b)) in exchange for dismissal of the remaining counts and allegations against him and for a stipulated state prison sentence of an aggregate term of four years. Through counsel, defendant requested that the court impose sentence immediately and consequently waived preparation of a probation report. The court advised defendant of the rights he was waiving by pleading no contest and informed him of the consequences of his plea, including that fees would be imposed on him "related to being processed through the justice system." Defendant acknowledged the consequences of pleading no contest and knowingly and intelligently waived the rights he would give up as a result. The court then imposed a four-year sentence. The court also ordered defendant to pay a booking fee of $270.17.

The trial court granted defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5.) Defendant's appeal included a challenge to the sufficiency of the evidence to support the $270.17 booking fee, although he had not objected when the court imposed it. The Court of Appeal affirmed the trial court's booking fee order. It noted that it had "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." It found the cases on which defendant relied unavailing and followed its earlier cases. Another Court of Appeal has held that a defendant's failure to object to imposition of a booking fee does not forfeit an appellate challenge "based on the insufficiency of the evidence to support the order." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397.) We granted review to resolve the conflict.

II. DISCUSSION

Three statutes address defendants' payment of jail booking fees, Government Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant depends on which governmental entity has arrested a defendant before transporting him or her to a county jail. The factors a court considers in determining whether to order the fee payment also vary depending on whether or not the court sentences the defendant to probation or prison. (See Gov. Code, §§ 29550, subd. (d)(1) & (2), 29550.1, 29550.2, subd. (a).)

The trial court did not reference the statutory authority for the booking fee it imposed. The record of the sentencing hearing here simply indicates the court ordered defendant to pay a "main jail booking fee" in the amount of $270.17. On appeal below, defendant "suggest[ed] that [the fee] was imposed pursuant to Government Code section 29550.2," and the Court of Appeal proceeded under that assumption. We accept for purposes of review this fact-specific determination of the applicable statute without deciding the question ourselves. (See Cal. Rules of Court, rule 8.516(b)(3) ["The court need not decide every issue the parties raise or the court specifies"]; People v. Partida (2005) 37 Cal.4th 428, 439; People v. Weiss (1999) 20 Cal.4th 1073, 1076-1077.)

Government Code section 29550.2, subdivision (a), provides that "If the person has the ability to pay, a judgment of conviction shall contain an order for payment of" the booking fee. Our statutory construction begins with the plain, commonsense meaning of the words in the statute " 'because it is generally the most reliable indicator of legislative intent and purpose.' " (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) "When the language of a statute is clear, we need go no further." (People v. Flores (2003) 30 Cal.4th 1059, 1063.) Here, the language is clear, and interpreting it according to its plain meaning will not " ' "result in absurd consequences which the Legislature did not intend." ' " (Younger v. Superior Court (1978) 21 Cal.3d 102, 113.) Consequently, defendant had the right to a determination of his ability to pay the booking fee before the court ordered payment.

As we have observed on numerous occasions, " ' "a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' " (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (Sheena K.).) "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (Sheena K., at p. 880.) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' " (Ibid.) Additionally, "[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." (People v. Vera (1997) 15 Cal.4th 269, 276.)

However, neither forfeiture nor application of the forfeiture rule is automatic. (See Sheena K., supra, 40 Cal.4th at pp. 881, fn. 2, 882 & fn. 3, 886-887 [noting exceptions].) Competing concerns may cause an appellate court to conclude that an objection has not been forfeited. (See People v. Williams (1999) 21 Cal.4th 335, 344 [declining to adopt a forfeiture rule for failure to plead the statute of limitations because it would run counter to the Legislature's intent]; cf. People v. Flores, supra, 30 Cal.4th at p. 1063 [assuming for the purposes of review that remand is the proper remedy when a court orders a defendant to pay attorney fees under Pen. Code, § 987.8, without substantially complying with procedural safeguards enumerated in that section].) Similar concerns may also cause an appellate court to refrain from applying the forfeiture bar. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [appellate courts have discretion to review otherwise forfeited challenges -- here, whether juvenile court may delegate parent-child visitation determinations to legal guardian -- but it "should be exercised rarely and only in cases presenting an important legal issue"].) Defendant asserts that his challenge comes within the general rule that " 'a judgment . . . not supported by substantial evidence' " may be challenged for the first time on appeal (People v. Butler (2003) 31 Cal.4th 1119, 1126 (Butler)) and that we should therefore review the court's order for substantial evidence to support its determination that he pay the booking fee.

The Attorney General counters that defendant's challenge falls within a different rule, namely, that a defendant forfeits "claims of sentencing error on appeal" when "he [does] not object . . . in the trial court below." She argues that to the extent Butler called into question this general rule regarding sentencing order objections, we "should expressly limit [Butler] to its unique facts." She also directs our attention to our "long-standing practice of requiring objection by ...


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