P. v. Dollar
Filed 11/5/13 P. v. Dollar CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
LAURIE DANA DOLLAR,
Defendant and Appellant.
B244830
(Los Angeles
County
Super. Ct.
No. NA093168)
APPEAL from
a judgment of the Superior Court
of
County, James Otto, Judge.
Affirmed.
Gideon
Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________
Defendant Laurie Dana Dollar appeals from the judgment
entered following her no contest plea to two counts of sale or transport of a
controlled substance, cocaine base (Health & Saf. Code, § 11352, subd.
(a)), for which the trial court imposed a five-year prison term. On appeal, she contends that the trial court
erred by imposing a jail booking fee as part of her sentence without making a
finding on her ability to pay the fine.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After Dollar engaged in two
hand-to-hand sales of rock cocaine, the District Attorney charged her in a
felony complaint with two counts of selling or transporting cocaine base, with a
special allegation as to both counts that she had suffered one prior serious or
violent felony conviction within the meaning of the “Three Strikes†law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12). Represented by counsel, Dollar waived her
rights to a preliminary hearing and to a jury trial, entered an open plea of no
contest to the charges, and admitted the prior strike conviction. The trial court sentenced Dollar to two concurrent
state prison terms of five years and dismissed the prior strike allegation for
purposes of sentencing (id., § 1385).
The trial court ordered Dollar to
pay on each count a $40 court security fee (Pen. Code, § 1465.8), a $30
Code, § 70373), and a $50 lab fee (Health & Saf. Code, § 11372.5). The court imposed a $240 restitution fine
(Pen. Code, § 1202.4) and imposed and suspended a $240 parole revocation
fine (id., § 1202.45). The court also ordered Dollar to “pay booking
fees to the arresting agency [Long Beach Police Department] in the amount of
$266.52, if applicable.â€
Dollar argues
that the trial court failed to find she had the ability to pay the $266.52 jail
booking fee and that there is insufficient evidence to support such a
finding. Dollar did not object when the
court ordered her to pay the fee pursuant to Government Code section 29550.1, which
authorizes the trial court to order a convicted defendant to reimburse the
arresting agency for any jail booking fee (“criminal justice administration feeâ€)
imposed by the county.
“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).
v. McCullough (2013) 56 Cal.4th 589, 592.)
Section
29550, subdivision (a)(1), provides that “a county may impose a fee upon a
city, special district, school district, community college district, college,
or university for reimbursement of county expenses incurred with respect to the
booking or other processing of persons arrested by an employee of that city,
special district, school district, community college district, college, or
university, where the arrested persons are brought to the county jail for
booking or detention.†The city,
district, or other agency may then recover this fee from the defendant pursuant to section
29550.1 or section 29550.2, depending on the arresting agency. Subdivision (d)(2) of section 29550 requires
the court to consider a convicted defendant’s ability to pay this fee, but only
“as a condition of probation.â€
Section
29550.1 provides: “Any city, special
district, school district, community college district, college, university, or
other local arresting agency whose officer or agent arrests a person is
entitled to recover any criminal justice administration fee imposed by a county
from the arrested person if the person is convicted of any criminal offense
related to the arrest. A judgment of
conviction shall contain an order for payment of the amount of the criminal
justice administration fee by the convicted
person . . . .†Section
29550.1 does not have a requirement that the court consider the convicted defendant’s
ability to pay the fee.
Section
29550.2 provides: “Any person booked
into a county jail pursuant to any arrest by any governmental entity not
specified in Section
29550 or 29550.1 is subject to a criminal justice
administration fee for administration costs incurred in conjunction with the
arresting and booking if the person is convicted of any criminal offense
relating to the arrest and booking. . . . 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 fee by the convicted
person . . . .â€
the court consider the convicted defendant’s ability to pay the fee.
Although the trial court did not identify the statute
pursuant to which it was assessing the jail booking fee, the parties agree it
was section 29550.1 because Long Beach Police Department officers arrested
Dollar. Section 29550.1 does not require
the court to consider the defendant’s ability to pay. The ability to pay requirement of section
29550, subdivision (d)(2), does not apply because the trial court sentenced
Dollar to prison, not probation.
Therefore, the trial court did not err in imposing the jail booking fee
without considering Dollar’s ability to pay.
Moreover, even if section 29550.2
applied, or if we were to read an ability to pay requirement into section
29550.1, Dollar forfeited her claim on appeal by failing to object to
the jail booking fee or raise the issue of her ability to pay the fee at the
time of sentencing. In
Supreme Court held that a defendant’s failure to object to the imposition of a
jail booking fee imposed pursuant to section 29550.2 forfeits any claim that
the defendant lacked the ability to pay the fee. The court
concluded the defendant’s financial ability to pay the fee was a question of
fact, not law. (McCullough, supra, at p.
597.) The court held that a “[d]efendant
may not ‘transform . . . a factual claim into a legal one by
asserting the record’s deficiency as a legal error.’ [Citation.] By ‘failing to object on the basis of his
[ability] to pay,’ defendant forfeits both his claim of factual error and the
dependent claim challenging ‘the adequacy of the record on that point.’ [Citations.]
. . . [B]ecause a court’s
imposition of a booking fee is confined to factual determinations, a defendant
who fails to challenge the sufficiency of the evidence at the proceeding when
the fee is imposed may not raise the challenge on appeal.†(Ibid.;
see People v. Valenzuela (2013) 220
Cal.App.4th 159, 167 [defendant’s factual inability to pay all or part of crime
prevention fine imposed pursuant to Penal Code section 1202.5 and associated
penalty assessment is forfeited if not raised in the trial court].) As the court in Valenzuela explained: “What a particular defendant can
realistically afford will depend on his or her assets and forseeable sources of
income, the length of any incarceration, and the amount of victim restitution,
fines, fees, assessments, and penalties imposed. Such issues can rarely be determined as a
matter of law on appeal . . . .†(Valenzuela,
supra, at pp. 166-167.)
DISPOSITION
The
judgment is affirmed.
SEGAL,
J.
We concur:
PERLUSS,
P. J.
WOODS, J.
name="_ftn1" title="">[1] All
further statutory references are to the Government Code unless otherwise
indicated.
name="_ftn2" title="">[2] The California Highway Patrol is an example of an entity
governed by section 29550.2, because it is not covered by section 29950.1.
