Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC804557
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Mark Anthony Crenshaw pleaded no contest to buying or receiving stolen property (Pen. Code, § 496, subd. (a)). The court found true the allegation that defendant had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to two years eight months in prison. He was also ordered to pay various fines and fees, including a booking fee of $129.75 to the City of San Jose “pursuant to Government Code section 29550, et seq.”
The abstract of judgment refers to the fee as “CJAF $129.75 CITY SAN JOSE.”
All further statutory references are to the Government Code unless otherwise indicated.
On appeal, defendant contends that the booking fee should be stricken because there is insufficient evidence to support an implied finding that he had the ability to pay the fee, and there is insufficient evidence that the amount of the fee actually reflects the costs incurred by the City of San Jose.
For reasons that we will explain, we will order the judgment modified to strike the order requiring payment of a booking fee of $129.75. After correcting clerical errors, we will affirm the judgment as modified.
Defendant was charged with and pleaded no contest to buying or receiving stolen property in violation of Penal Code section 496, subdivision (a). The abstract of judgment states, however, that defendant was convicted under Penal Code section “496(A)(C).” We will order the abstract amended to reflect the appropriate subdivision.
II. FACTUAL AND PROCEDURAL BACKGROUND
As defendant was convicted by plea, the following facts are taken from the probation report. On the morning of May 3, 2008, San Jose police responded to a report of a burglary at a business. The business owner told the police that a window had been broken and two computer towers, a flat screen monitor, a keyboard, and other computer accessories had been stolen. The business owner indicated that several individuals living in a motor home across the street might have heard or seen something.
The police officers contacted defendant and another individual who were residing in the motor home. Both denied knowing anything about the burglary. The police obtained consent to search the motor home, which was registered to defendant. When officers entered the motor home, they saw two computer towers and a monitor. Defendant told the police that he was sleeping when a person who he knew as “ ‘Spanky’ ” came by the motor home about 4:00 a.m. with two towers, a monitor, and a keyboard. The person told defendant that “he had just taken them from his ex-girlfriend” and asked defendant “to keep the items for him until his return the following morning to retrieve them.” Defendant “suggested” to the police that “he was ‘trying to help out a friend’ although he admitted he knew the items were perhaps stolen.” Defendant was taken into custody and transported to the county jail.
Information and Plea
On July 18, 2008, defendant was charged by information with buying or receiving stolen property (Pen. Code, § 496, subd. (a)). The information further alleged that defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)) and had suffered a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
On September 12, 2008, defendant entered a no contest plea to buying or receiving stolen property, after accepting a court offer of a maximum of two years eight months. He also waived his right to a jury trial on the prior allegations and agreed to a court trial instead. Before defendant entered the no contest plea, the court told defendant that the fines and fees, including a booking fee that would be imposed in this case were “all based on [defendant’s] ability to pay.”
The Finding on the Prior and Sentencing
On October 9, 2008, a court trial was held regarding the prior allegations. The prosecutor provided documentary evidence concerning the prior strike allegation and moved to dismiss the prison prior allegations. Based on an Oklahoma conviction, the court found true the allegation that defendant had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
On November 14, 2008, defendant filed a motion requesting that the trial court reduce the offense to a misdemeanor pursuant to Penal Code section 17 and dismiss the strike pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On November 21, 2008, the trial court denied defendant’s Romero motion and his motion to reduce the offense to a misdemeanor. The court denied probation and sentenced defendant to two years eight months (double the mitigated term). Defendant was granted a total of 303 days of custody credits. The court made a general order of restitution and ordered defendant to pay various fines and fees, including a booking fee of $129.75 to the City of San Jose “pursuant to Government Code section 29550, et seq.” The court indicated that defendant would not have to pay attorney fees because defendant’s ability to pay had not been shown. The court dismissed the prison prior allegations.
Defendant filed a notice of appeal on November 21, 2008.
III. DISCUSSION
On appeal, defendant challenges the imposition of the booking fee. As an initial matter, we observe that defendant did not raise an objection to the booking fee in the trial court. Defendant asserts in his opening brief on appeal that “[c]hallenges to the sufficiency of the evidence do not require an objection below.” The Attorney General does not respond to this assertion by defendant and instead addresses the merits of defendant’s sufficiency of the evidence challenge.
In the context of attorney fees under Penal Code section 987.8, this court has held that “no predicate objection in the trial court” is required to challenge the sufficiency of the evidence regarding a defendant’s ability to pay. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray).) Consistent with Viray, we will assume that defendant’s arguments in this case are not forfeited and we turn to the substance of his arguments.
On appeal, defendant contends that the booking fee in this case “should be stricken because the evidence is insufficient to support an implied finding that he had the ability to pay the booking fee; and, there is no sufficient evidence that the amount of the fee imposed actually reflects the costs incurred by the City of San Jose.”
The Attorney General assumes that the trial court was required to find an ability to pay before ordering the fee, but contends that there was sufficient evidence in this case to support an implied determination of ability to pay. The Attorney General also argues that no evidence of the actual cost of booking is required before the court orders payment of the fee.
Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing arrested persons into a county jail. Section 29550, subdivision (a)(1) generally provides that “a county may impose a fee upon a city... for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city,... where the arrested persons are brought to the county jail for booking or detention.” (Italics added.) Section 29550.1 states that “[a]nycity... 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....” (Italics added.) Section 29550.2, subdivision (a) provides that “[a]ny 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. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. 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....” (Italics added.)
In this case, the probation report reflects that defendant was arrested by San Jose police and then taken to the county jail. The trial court subsequently ordered defendant to pay the booking fee to the City of San Jose. The court stated that the fee was being imposed “pursuant to Government Code section 29550, et seq.”
On appeal, the parties assume that the trial court imposed the booking fee pursuant to section 29550.2. However, section 29550.2 only applies to the extent a person was arrested by a governmental agency not specified in section 29550 or 29550.1, and it makes the fee payable to the county. Section 29550.1 applies to individuals arrested by a city and concerns fees payable to the city. In view of the fact that police officers from San Jose arrested defendant and defendant was ordered to pay the booking fee to San Jose, it appears that section 29550.1 applies to this case, rather than section 29550.2.
Further, whereas section 29550.2 contains language concerning a defendant’s “ability to pay” and concerning the fee not exceeding the “actual administrative costs” incurred by a county in booking a person (§ 29550.2, subd. (a)), section 29550.1 does not. Under section 29550.1, the fee ordered by the trial court and payable to the city appears to be mandatory.
Subdivision (a) of section 29550.2 states in relevant part: “The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. 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....”
We observe, however, that before defendant entered his no contest plea, the trial court told him that the fines and fees, including the booking fee, that would be imposed in this case would be based on his “ability to pay.” Further, at sentencing, the court indicated that defendant would not have to pay attorney fees because his ability to pay had not been shown.
In view of the court’s advisement that fines and fees would be based on defendant’s ability to pay, the fact that section 29550.1 appears to apply and it does not include an ability-to-pay requirement, the limited evidence in the record to support a finding of the ability to pay the booking fee in view of the other fine and fee orders, the court’s finding that an ability to pay had not been shown with respect to attorney fees, and the small amount of the booking fee order ($129.75), we will, in the interests of judicial economy, strike the booking fee order rather than request supplemental briefing from the parties on all these issues.
IV. DISPOSITION
The judgment is modified by striking the order to pay a booking fee of $129.75 to the City of San Jose, or “CJAF $129.75 CITY SAN JOSE” as indicated in the abstract of judgment. The abstract of judgment is also ordered amended to state that (1) defendant was convicted of buying or receiving stolen property under Penal Code section 496, subdivision (a), rather than Penal Code section “496(A)(C),” (2) defendant was convicted by plea, rather than by the court, and (3) a general order of restitution was made by the court. As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., DUFFY, J.
We also observe that although defendant was convicted by plea, the abstract of judgment indicates that defendant was “convicted by” the “court” (capitalization omitted). We will order the abstract amended to reflect defendant’s no contest plea.
Lastly, the trial court made a general order of restitution, but the order is not reflected in the abstract of judgment. We will order the abstract amended to reflect the court’s oral pronouncement.