Filed 7/13/17 P. v. Rincon CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE MIGUEL RINCON,

Defendant and Appellant.
H043354
(Santa Clara County
Super. Ct. No. C1366018)

On appeal from his criminal conviction, defendant Jose Miguel Rincon contends that the trial court erroneously imposed a $259.50 jail booking fee (booking fee). As set forth below, we will strike the booking fee.
BACKGROUND
On February 8, 2016, defendant pleaded no contest to driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) and transportation of not more than 28.5 grams of marijuana (former Health & Saf. Code, § 11360, subd. (b)). The trial court referred the matter to the probation department for a “waive referral.” A memorandum prepared by a probation officer recommended that the trial court order defendant to pay a $259.50 booking fee “pursuant to Government Code 29550, 29550.1 and 29550.2.”
The trial court held a sentencing hearing on March 3, 2016. At the beginning of that hearing, defense counsel objected to the recommended booking fee, arguing that “there’s not a substantial basis in the Court’s record.” The trial court never ruled on the objection. Instead, after defense counsel’s argument, the trial court placed defendant on probation and ordered defendant to pay various fines and fees. One of the fees was a $259.50 booking fee that the trial court ordered “payable to the County of Santa Clara.”
DISCUSSION
Defendant contends that the trial court erroneously imposed the $259.50 booking fee, and he urges this court to strike it. Specifically, defendant contends that the booking fee must be stricken because nothing in the record establishes the actual administrative costs associated with his booking. As explained below, we will strike the booking fee because no evidence shows that the $259.50 fee did not exceed the actual administrative costs of booking.
Legal Principles
“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.” (People v. McCullough (2013) 56 Cal.4th 589, 592 (McCullough).)
Here, the trial court did not identify the Government Code section under which it imposed the booking fee. The record, however, shows that a deputy of the Santa Clara County Sherriff’s Department arrested defendant. Arrests made by a county agent or officer are governed by Government Code section 29550.
Government Code section 29550, subdivision (c) provides: “Any county whose officer or agent arrests a person is entitled to recover from the arrested person a criminal justice administration fee for administrative costs it incurs in conjunction with the arrest if the person is convicted of any criminal offense related to the arrest, whether or not it is the offense for which the person was originally booked. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, including applicable overhead costs incurred in booking or otherwise processing arrested persons.” (Italics added.)
“[A] booking fee must not exceed the actual administrative costs of booking.” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400, disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858 fn. 5 and McCullough, supra, 56 Cal.4th at p. 599.) Where there is no evidence in the record of the actual administrative costs of the defendant’s booking, a booking fee cannot stand. (Ibid.)
The Booking Fee Cannot Stand
Defendant asserts that there is no evidence that the $259.50 booking fee did “not exceed the actual administrative costs” of booking or processing an arrested person as mandated by Government Code section 29550, subdivision (c). Defendant is correct. The prosecution presented no evidence regarding the cost of booking or processing an arrested person, and the trial court made no findings regarding the cost of booking or processing an arrested person. We have reviewed the record below, and we have found nothing that demonstrates the administrative costs associated with booking or processing an arrested person. We therefore cannot conclude that the $259.50 booking fee did not exceed the actual administrative costs of booking or otherwise processing an arrested person. We cannot hold that the $259.50 booking fee comports with Government Code section 29550, subdivision (c).
The Attorney General makes the following argument regarding the propriety of the $259.50 booking fee: “The trial court did not determine the actual cost of [defendant’s] booking fee but presumably imposed costs calculated by Santa Clara County.” (Fn. omitted.) In support of this argument, the Attorney General cites documents, which were judicially noticed by this court, that show booking costs in Santa Clara County between 2003 and 2010. The Attorney General’s argument is not persuasive. The Attorney General’s argument concedes that there is no evidence in the record below showing that the $259.50 fee did not exceed the actual administrative costs of booking. Moreover, even if we consider the judicially noticed documents as evidence of booking costs, we do not believe that booking costs incurred between 2003 and 2010 necessarily reflect the booking costs incurred with defendant’s 2013 arrest. The Attorney General has failed to show that the $259.50 booking fee complies with Government Code section 29550, subdivision (c).
Because no evidence shows that the $259.50 booking fee did not exceed the actual administrative costs of booking, it cannot be upheld. In the interest of judicial economy, we elect to strike the booking fee.
DISPOSITION
The judgment is modified to strike the imposition of the $259.50 booking fee. As so modified, the judgment is affirmed.
 

______________________________________
RUSHING, P.J.






I CONCUR:






____________________________________
PREMO, J.


















People v. Rincon
H043354


Grover, J. Concurring and Dissenting
I respectfully disagree with the majority’s conclusion that the record here lacks evidence of compliance with Government Code section 29550, subdivision (c). I would affirm the judgment without modification.
The Booking Fee is Valid as Imposed
Government Code section 29550, subdivision (c) provides: “Any county whose officer or agent arrests a person is entitled to recover from the arrested person a criminal justice administration fee for administrative costs it incurs in conjunction with the arrest if the person is convicted of any criminal offense related to the arrest, whether or not it is the offense for which the person was originally booked. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, including applicable overhead costs incurred in booking or otherwise processing arrested persons.” Section 29550, subdivision (a) requires the overhead costs to conform to federal Circular A-87 standards. The booking fee may be imposed in two ways. The court may order payment of the fee as part of the judgment of conviction; the court shall order the convicted person to reimburse the county for the booking fee, based on his or her ability to pay, as a condition of probation. (Gov. Code, § 29550, subd. (d).)
Consistent with Government Code section 29550, Santa Clara County Ordinance section A14-56 authorizes the county board of supervisors to impose a booking fee “not [to] exceed the actual administrative costs, including applicable overhead costs, incurred in booking or otherwise processing arrested persons.” (Santa Clara County Ord., § A14-56(a).) The ordinance provides that “the amount of the fee shall be determined from time to time by the Board of Supervisors by resolution,” and that any increase in the fee may be adopted after notice and a public meeting. (Id., § A14-56(b).)
In 2006, the Santa Clara County Board of Supervisors calculated the cost of booking an arrested person into the county jail at $259.51, factoring in (1) salaries for booking and classification staff, medical and mental health staff, and pre-trial services staff; (2) county overhead; and (3) department indirect costs. At respondent’s request, we have taken judicial notice of that fee schedule and the Board of Supervisors’ June 20, 2006 resolution setting $259.50 as the criminal justice administrative (booking) fee. The resolution recites the Board of Supervisors’ authority to impose the booking fee and specifically notes that the fee “cannot exceed the actual administrative costs incurred by County but may include applicable overhead costs as permitted by Federal Circular A 87 standards.” The analyst’s memo states that the proposed $259.50 booking fee “is the actual cost of booking an individual into custody[.]” In my view, those documents are sufficient to establish a booking fee comporting with Government Code section 29550. The statute does not require that the 2006 resolution be included in every case file in which the fee is imposed, nor that the trial court make a case-specific finding of the fee’s validity. I acknowledge that the cost figures contained in the 2006 resolution were ten years old by the time the booking fee was imposed in this case. But the statute does not impose any requirement as to when a booking fee must be reviewed or recalculated, and defendant points to no evidence that the actual cost of booking and processing an arrestee in Santa Clara County has decreased from the costs documented in the 2006 resolution.
An Ability to Pay Determination Was Not Required
Defendant argues that the trial court erred by imposing the booking fee without making an ability to pay determination—a determination that is mandatory when the fee is imposed as a condition of probation. (Gov. Code, § 29550, subd. (d)(2).) At the same time, he acknowledges that the booking fee here was expressly imposed as part of the judgment of conviction, not as a condition of probation, and that the statute does not require an ability to pay determination when the fee is imposed as part of the judgment. (Id., subd. (d)(1).) Defendant asks us to strike the fee for lack of substantial evidence, or to remand the matter for a determination of his ability to pay the booking fee, because he was placed on probation and no ability to pay determination was made.
Defendant did not question his ability to pay in the trial court. But even assuming the issue is not forfeited, defendant’s argument has no merit. Under Government Code section 29550, subdivision (d), the trial court’s order imposing the booking fee as part of the judgment of conviction would stand, even without an ability to pay determination.
I would affirm the judgment in full without striking the $259.50 booking fee.





________________________________
GROVER, J.












People v. Rincon
H043354