P. v.
Cosey
Filed 5/20/13 P. v. Cosey CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
STEFAN
DWAYNE COSEY,
Defendant and
Appellant.
C071253
(Super. Ct. No. 10F03099)
Convicted of oral copulation with a
young minor (Pen. Code, § 288.7) and having served two prior prison terms
(Pen. Code, § 667.5, subd. (b)), defendant Stefan Dwayne Cosey was
sentenced to 15 years to life in prison.
He contends on appeal that the trial court erred in ordering him to pay
booking and classification fees (Gov. Code, § 29550.2) without first finding
he had the ability to pay those fees. He
further contends the People failed to prove the fees were actually
incurred. Finally, he argues that he was
entitled to a jury determination of both his ability to pay the fees and
whether they were actually incurred.
Given
the nature of defendant’s claims and the lack of objection below, we dispense
with a summary of the facts of defendant’s conviction and proceed directly to
our discussion of his claims. As we will
explain, we decline to address his first two contentions and disagree with his
last. Accordingly, we shall affirm the
judgment.
I
Defendant complains of two fees
imposed by the trial court at sentencing--a main jail booking fee of $270.17
and a main jail classification fee of $51.34 (see Gov. Code,
§ 29550.2). At the time of
sentencing, defendant did not object to the fees’ imposition. He now contends these fees must be stricken
because the trial court failed to assess and find his ability to pay, and also
because the record lacks evidence of proof of “actual†costs.
The People argue defendant has
forfeited these challenges to the fees at issue because he raised no objection
to their imposition or amount in the trial court. We agree.
We have repeatedly held that failure to object in the trial court based
on lack of ability to pay forfeits the contention of error. (See People
v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357;
1466, 1468-1469; see also People v.
McMahan (1992) 3 Cal.App.4th 740, 749-750 [defendant knowledgeable about
his ability to pay, and his failure to object to fine recommended by probation
officer or offer contrary evidence forfeited claim].) Recently, our Supreme Court agreed with this
view. (People v. McCullough (Apr. 22,
2013,
S192513) ___ Cal.4th ___.)
II
Lastly, defendant argues he was
entitled to a jury determination of his ability
to pay the two fees at issue, as well as the amounts of the fees actually incurred.
Supreme Court decision, Southern Union
Co. v. United States (2012) 567 U.S. __, __ [183 L.Ed.2d
318] (Southern Union Co.), to support his contention. The criminal fines at issue in
materially different than the administrative fees at issue here.
In Southern Union Co., the Supreme
Court held that the Sixth Amendment
right to a jury applies to “sentences of criminal fines.†(Southern
Union Co., supra, 567 U.S. at p. ___ [183 L.Ed.2d at
p. 325].) There, the violations at
issue were punishable by, inter alia,
a fine of up to $50,000 for each day of violation. (Southern
Union Co., supra, at p. ___ [183 L.Ed.2d at p. 325].) A jury found Southern Union violated the law, but
made no specific factual finding as to the number of days it was in
violation. (Ibid.) The trial court
imposed an aggregate fine of $38.1 million, concluding from the “‘content and
context of the verdict all together’ that the jury found a 762-day
violation.†(Id. at p. ___ [183 L.Ed.2d at p. 326].)
The Supreme Court held that the
district court’s factual finding as to the number of days Southern Union committed the crime
violated its Sixth Amendment right to a jury determination. (Southern
Union Co., supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 328].) In reaching its decision, the Supreme Court
held that “[c]riminal fines, like . . . other forms of punishment, are
penalties inflicted by the sovereign for the commission of offenses.†(Southern
Union Co., supra, at p. ___ [183 L.Ed.2d at p. 326].)
The instant case is eminently
distinguishable from Southern Union Co. Here, neither of the fees at issue is a
penalty “inflicted by the sovereign for the commission of offenses.†(Southern
Union Co., supra, 567 U.S. at p.___ [183 L.Ed.2d at p. 326].) Rather, fees
imposed pursuant to Government Code section 29550.2 (section 29550.2 fees) are
administrative in nature, created to address a fiscal crisis in California “by
allowing a county to recover costs incurred in booking or otherwise processing
an arrested person who thereafter is convicted.†(People
v. Rivera (1998) 65 Cal.App.4th 705, 707-708 (Rivera).) Section 29550.2
fees are imposed “not as retribution for what the convicted criminal has done
to a victim and/or society, but for his or her use of jail services as a result
of the criminal behavior.†(
711.)
Moreover, section 29550.2 fees are
limited to the actual costs incurred by the county. (Rivera,
supra, 65 Cal.App.4th at p. 708.)
Thus, unlike the criminal penalties imposed in Southern Union Co., section 29550.2 fees are “assessed against all
convicted offenders who have the ability to pay, without regard to the nature
or severity of their respective
offenses.†(Rivera, supra, at p. 708.)
In short, section 29550.2 fees are not
a penalty inflicted for the commission of crimes. (Compare Rivera,
supra, at pp. 708, 711 with Southern
Union Co., at p. ___ [183 L.Ed.2d at p. 326].)
Defendant nevertheless argues the
factual determination associated with section 29550.2 fees (defendant’s ability
to pay the fees and the amount of costs incurred by the county) are analogous
to the trial court’s determination (without jury input) of the number of days
Southern Union was in violation of federal environmental
laws. But these two determinations
have little, if anything, in common.
In Southern Union Co., the trial court made a factual determination
amount of the fine imposed, that is, the number of days the company was
actually in violation of the law. The
factual determinations associated with section 29550.2 fees do not and cannot
defendant is required to pay.
Defendant’s comparison fails.
(See also People v. Kramis
(2012) 209 Cal.App.4th 346, 351-352 [rev. den.] [rejecting the claim that
trial court’s discretion to select an appropriate restitution fine between $200
and $10,000, in part because, by imposing the mandated fees, “The trial court
did not make any factual findings that increased†the amount of the
administrative fees, “beyond what the jury’s verdict--the fact of the
conviction--allowedâ€].)
We thus conclude defendant was not
entitled to a jury determination regarding his ability to pay the booking fees,
or the amount of costs incurred by the county.
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] At the time of defendant’s sentencing, courts
had not yet held that the right to a jury determination applies to sentences of
criminal fines. Thus, defendant did not
forfeit this claim by his failure to request a jury trial. (See People
v. Black (2007) 41 Cal.4th 799, 810 [“although challenges to procedures or
to the admission of evidence normally are forfeited unless timely raised in the
trial court, ‘this is not so when pertinent law later changed so unforeseeably
that it is unreasonable to expect trial counsel to have anticipated the
change’â€]; People v. French (2008) 43
Cal. 4th 36, 48 [waiver of jury trial on lewd conduct with child did not waive
his right to jury trial of aggravating sentencing factor of taking advantage of
position of trust and confidence, where at time of plea, no right to jury trial
on such circumstance had been recognized].)
We note with disapproval that the People appear to have completely
ignored this contention in their briefing.
