Opinion
H043565
09-25-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVIN PATTERSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1523183)
As part of a judgment of conviction for second degree robbery and grand theft, defendant was ordered to pay a $129.75 Criminal Justice Administration fee (colloquially referred to as a booking fee) to the City of San Jose. He challenges that fee on appeal, arguing that it was imposed based on an insufficient record. For the reasons explained here, we will affirm the judgment.
I. BACKGROUND
Defendant Kevin Patterson was charged by felony complaint with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1) and grand theft by employee, agent, or servant exceeding $950 (Pen. Code, §§ 484, 487, subd. (b)(3); count 2). He waived his right to a preliminary hearing, negotiated a disposition with the prosecution, pleaded no contest to the charges, and stipulated to a factual basis for the plea. Given the negotiated disposition, defendant waived preparation of a probation report and the matter was referred to the probation department only to contact victims and calculate custody credits. The probation memorandum identified a Walgreens store in San Jose as one of two victim of the robbery charged in count 1 and a Verizon store in Los Gatos as the victim of the theft charged in count 2. The memorandum recommended that "[a] $129.75 Criminal Justice Administration fee to the City of San Jose be imposed pursuant to Government Code [sections] 29550, 29550.1 and 29550.2"
Counsel objected to the Criminal Justice Administration fee at sentencing, stating "I don't believe there is [a] sufficient showing before the Court to impose that fee." Counsel did not elaborate, and the court acknowledged the objection and proceeded to pronounce judgment. Consistent with the negotiated disposition, the court suspended imposition of sentence and defendant was placed on formal probation for three years. The court ordered defendant to pay $1,785 restitution to Walgreens, and various fines and fees including a $129.75 booking fee payable to the City of San Jose.
The clerk's form minutes contains two fee amounts next to the "CJAF" entry: $129.75 (circled here) and $259.50.
II. DISCUSSION
Defendant argues that this court should reverse the $129.75 booking fee because the record, in his view, does not provide the identity of the arresting agency, which is necessary to determine both the statutory authority for the fee and, depending on the statute, whether an ability to pay determination is required. Setting aside whether defendant's objection in the trial court was sufficient to preserve his precise issue for appellate review, his argument lacks merit.
A. THE ARRESTING AGENCY
First, defendant ignores the fact that the appellate record is not the complete case file maintained by the trial court, but only certain documents from that file compiled into a clerk's transcript under California Rules of Court, rule 8.320(b). Defendant's argument that there is "absolutely nothing in the record that indicates that the arrest was made by agents of the City of San Jose" is unavailing in light of Penal Code section 817, subdivision (h), which requires an arresting agency to file a certificate of service of an arrest warrant with the clerk of the issuing court once the person named in the warrant has been taken into custody, and the presumption that official duties are regularly performed. (Evid. Code, § 664.)
But even on the limited appellate record, it is apparent that the San Jose Police Department was the arresting agency in this case. The warrant, filed October 28, 2015, was prepared and signed by "Villanueva 3410." "SJPD" and a telephone number with a 408 area code and a 277 prefix are typed below Villanueva's signature. An arrest warrant for defendant was requested in the body of the complaint, which states: "[A]ttached and incorporated by reference are official reports and documents of a law enforcement agency which the complainant believes establishes probable cause for the arrest of defendant KEVIN PATTERSON, for the above-listed crimes."
A superior court judge signed the warrant, and by notation next to the signature dated October 28, 2015, set bail at $200,000. Villanueva signed the document a second time, below another notation reading, "Warrant Received for Service by," also dated October 28. The probation memorandum shows defendant as having been arrested on October 29, and released on bail the next day. Court minutes show an arraignment on October 30 with bail reduced to $60,000. The minutes for all hearings in this case list "SJ" and "Villanueva" as "Agency." The probation memorandum showed the robbery occurring in San Jose, and recommended imposition of a $129.75 booking fee payable to the City of San Jose. These documents provide substantial evidence that the arresting agency was the San Jose Police Department.
B. THE APPLICABLE BOOKING FEE STATUTES
Government Code section 29550, subdivision (a) authorizes a county to impose on certain public entities, including cities, a fee reflecting 50 percent of the cost incurred in booking an arrestee into county jail when the arrest is effected by the other entity. (Further statutory references are to the Government Code.) The county may recover half its cost by submitting an invoice to the arresting entity. (Ibid.) Under section 29550.1, the arresting entity in turn may recover the booking fee from the arrestee if the arrestee is convicted of a criminal offense related to the arrest. Section 29550.1 requires both the judgment of conviction and any order of probation to contain an order for payment of the fee. Reimbursement by a convicted person is mandatory and not subject to his or her ability to pay. (Ibid.)
Ability to pay is a factor when the defendant is responsible to the county for the entire booking fee. (§ 29550, subds. (c), (d)(2)) [arrest by county officer or agent], § 29550.2, subd. (a) [arrest by agency not specified in sections 29550 or 29550.1].) --------
Defendant acknowledges the mandatory language in section 29550.1, and he does not dispute that the amount of the booking fee here is consistent with a fee imposed under that section for an arrest by a city employee. He persists that the fee was imposed without a sufficient foundation because nothing in the record established that the county actually charged the City of San Jose for the cost of his arrest. But nothing in sections 29550 and 29550.1 requires a finding that the city had been invoiced for the booking fee, much less production of an invoice, before imposing the booking fee.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P. J. /s/_________ Premo, J.