P. v. Volanti

 

 

 

 

 

 

 

 

 

 

Filed 12/12/13  P. v. Volanti CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   V.   ETIENNE PAUL VOLANTI,               Defendant and Appellant.

E056896               (Super.Ct.No. RIF1203153)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  John D. Molloy,
Judge.  Affirmed with directions.

            Gregory
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Etienne Volanti is serving eight years in prison after pleading guilty to
stalking as a second strike.  He
challenges the $450.34 booking fee imposed at sentencing under Government Code
section 29950, subdivisions (c) and (d). 
Defendant argues the statute authorizing the trial court to impose the
fee without considering his ability to pay violates his right to Equal Protection,
because it treats convicted persons sentenced to imprisonment differently from
those granted probation.  As discussed
below, we affirm the judgment but order the abstract of judgment modified to
reflect the booking fee actually imposed by the court.

>Facts
and Procedure

            From
April 19, 2012, through April 28, 2012, defendant unlawfully
followed and harassed Jane Doe and made a credible threat with the intent to
place her in reasonable fear of her or her family’s immediate safety.  At the time, there was a criminal protective
order prohibiting defendant from engaging in such conduct.

            On
June 22, 2012, the People filed a felony complaint charging defendant with
stalking after having been previously convicted of making criminal threats
under Penal Codehref="#_ftn1" name="_ftnref1"
title="">^[1] section 422 (§ 646.9, subd. (c)(1)).  The People also alleged defendant had served
a prior prison term under section 667.5, subdivision (b), and had two prior
strike convictions (§§ 667, subds. (c) & (e)(2)(a), and 1170.12, subd.
(c)(2)(a).

            On
July 19, 2012, defendant
pled guilty to the stalking charge and admitted one of the strike
allegations.  As agreed, the trial court
sentenced defendant to the upper term of four years, doubled to eight years for
the strike prior.  This appeal followed.

>Discussion


            Defendant
argues the trial court violated his right to equal protection when it imposed
the $450.34 booking fee.

Government Code
section 29550, subdivision (c), allows each county to recover an administrative
fee (“booking fee”) from each person convicted of a criminal offense when the
conviction is a result of a county officer or agent having arrested that
person.  When the convicted person is
granted probation, the court must assess the person’s ability to pay the
booking fee.  (Gov. Code, § 29550, subd.
(d)(2).)  However, when the convicted
person is sentenced to imprisonment, the statute does not require the court to
assess the convicted person’s ability to pay.  (Gov. Code, § 29550, subd.(d)(1).)  Defendant argues that persons sentenced to
imprisonment and those granted probation are similarly situated with respect to
their ability to pay a booking fee, and thus this different treatment by the
legislature violates the equal protection
rights of convicted persons, such as defendant, who are sentenced to
imprisonment and are ordered to pay a booking fee without regard to their
ability to pay.

The People argue
that defendant forfeited any objection to the booking fee by failing to object
in the lower court.  For the reasons set
forth below, we address the merits of the booking fee challenge but affirm its
imposition. 

In >People v. McCullough (2013) 56 Cal.4th
589 (McCullough), our Supreme Court
recently held that a defendant who does not object to booking fees imposed
under Government Code section 29550.2 at the time they are imposed forfeits the
right to challenge the fees on appeal, even where the appeal is based on
insufficiency of the evidence.  (>McCullough, at p. 591.)  This is because a trial court’s imposition of
this type of booking fee is based on factual findings of ability to pay, rather
than on legal conclusions.  The ability
to pay this booking fee does not present a question of law, but one of fact and
formulating the claim as one of deficiency of the record does not transform the
claim to one of legal error.  (>McCullough, at p. 597)  However, because here, under subdivision
(d)(1) of Government Code section 29550, the trial court was not required to
determine the defendant’s ability to pay, and because his argument regarding
Equal Protection is one of law rather than fact, the waiver rule set forth in >McCullough does not necessarily apply.

Therefore, we
consider the merits of defendant’s Equal Protection challenge to imposition of
the $450.34 booking fee.

As stated above,
defendant argues that persons sentenced to imprisonment and those granted
probation are similarly situated with respect to their ability to pay a booking
fee, and thus this different treatment by the Legislature violates the equal
protection rights of convicted persons, such as defendant, who are sentenced to
imprisonment and are ordered to pay a booking fee without regard to their
ability to pay.

The constitutional guarantee
of equal protection of the laws under the federal and state Constitutions “‘compels
recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.’  [Citation.]”  (In re
Gary W. (1971) 5 Cal.3d 296, 303, superseded by statute on another point as
stated in People v. Superior Court (>Cheek) (2001) 94 Cal.App.4th 980, 990.)  However, as the People point out, convicted
persons sentenced to imprisonment and those granted probation are >not similarly situated with regard to
their ability to reimburse public agencies for their booking costs.  Prisoners earn money while incarcerated at a
rate predetermined by state regulation.  (See
§ 2700.)  Their ability to pay booking
fees is fixed and definite, whereas convicted persons who are granted probation
have a variable ability to pay booking fees based on their individual incomes
and circumstances.  Thus, these two
classes of persons are not similarly situation for the purpose of paying
booking fees.

We agree with the defendant
and the People that the abstract of judgment must be corrected to show that the
booking fee actually imposed by the trial court is $450.34, rather than $490.00
as shown in the minute order.  Because
the court’s oral pronouncement of the $450.34 booking fee was the rendition of
judgment, it controls.  (>People v. Mitchell (2001) 26 Cal.4th
181, 185.)

Disposition


The judgment is
affirmed.  The trial court is
directed to prepare an amended abstract of judgment and minute order and
forward certified copies to the Department
of Corrections and Rehabilitation.

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS       

RAMIREZ                             

                                                P.
J.

We concur:

 

HOLLENHORST                 

                                             J.

 

CODRINGTON                    

                                             J.