Opinion
D058981 Super. Ct. No. SCN248790
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO FERNANDEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed.
Alejandro Fernandez entered a negotiated guilty plea to first degree murder (Pen. Code, § 187, subd. (a)), forcible rape (Pen. Code, § 261, subd. (a)(2)) and assault with intent to commit rape (Pen. Code, § 220) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced him to a stipulated prison term of 34 years to life: 25 years to life for first degree murder, the six-year upper term for assault with intent to commit rape, three years for the great bodily injury enhancement and a stayed eight-year upper term for forcible rape (Pen. Code, § 654). Fernandez appeals. We affirm.
BACKGROUND
On September 1, 2001, Fernandez killed a woman in the course of raping her. On April 11, 2004, Fernandez assaulted another woman with the intent to rape her, and in course of the assault personally inflicted bodily harm on her.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel lists as possible, but not arguable, issues: (1) whether the court erred by denying Fernandez's pre-plea Marsden motions (People v. Marsden (1970) 2 Cal.3d 118) and, if error occurred, whether Fernandez forfeited his right to challenge the error by pleading guilty; (2) whether the plea was involuntary or unintelligent and whether that claim is cognizable on appeal; (3) whether Fernandez received ineffective assistance of counsel in the plea proceedings and whether that claim is cognizable on appeal; and (4) whether there was substantial evidence of the actual administrative costs underlying the $154 booking fee and of Fernandez's ability to pay the fee.
We requested supplemental briefing from counsel on the fourth Anders issue. Both counsel have filed supplemental briefs.
The court here imposed a $154 criminal justice administration (booking) fee. The court did not cite statutory authority. The minute order and the probation report cite
Government Code section 29550.1. Section 29550.1 is inapplicable here; it applies to arrests made by "[a]ny city, special district, school district, community college district, college, university, or other local arresting agency . . . ." (§ 29550.1.) According to the probation report, Fernandez was arrested by the Office of the San Diego District Attorney.
All further statutory references are to the Government Code.
Fernandez's counsel asserts that, assuming the fee was not unlawful, the basis for the fee was section 29550, subdivision (c), or section 29550.2. The People claim the basis was section 29550, subdivisions (c) and (d). Because the Office of the San Diego District Attorney is a county agency, section 29550, subdivisions (c), and (d)(1), apply here. Those subdivisions state, in pertinent part, "(c) 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. [¶] (d) When the court has been notified in a manner specified by the court that a criminal justice administration fee is due the agency: [¶] (1) A judgment of conviction may impose an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution may be issued on the order in the same manner as a judgment in a civil action, but shall not be enforceable by contempt." (§ 29550, subds. (c), (d)(1).)
Fernandez argues the "fee could not have been imposed under section 29550.1 . . . . On this basis the fee was unlawful."
Section 29550.2 applies to arrests made "by any governmental entity not specified in Section 29550 or 29550.1." (§ 29550.2, subd. (a).)
Fernandez argues the fee was not mandatory because section 29550, subdivision (d) (1), states the "judgment of conviction may impose" the fee. Section 29550, subdivision (c), however, states the county "is entitled to recover [the fee] from the arrested person . . . ."
Section 29550, subdivision (d)(1), does not refer to the defendant's ability to pay. Section 29550, subdivision (d)(2), on the other hand, provides for a criminal justice administration fee as a probation condition "based on [the defendant's] ability to pay." Section 29550.2 also requires an ability to pay. (§ 29550.2, subd. (a).) We therefore infer that the Legislature did not intend to require a showing of ability to pay as a prerequisite to imposing the section 29550, subdivision (d)(1) fee. (See People v. Statum (2002) 28 Cal.4th 682, 690-691.)
For San Diego County, the "actual administrative costs" specified in section 29550 amount to $154. (San Diego County Code of Reg. Ord., tit. 3, div. 4, ch. 1, § 34.101; see City of San Jose v. State of California (1996) 45 Cal.App.4th 1802, 1808-1809.) Thus, there was substantial evidence of the actual administrative costs underlying the $154 booking fee.
We granted Fernandez permission to file a brief on his own behalf. He has not responded. A review of the record pursuant to Wende and Anders, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Fernandez has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
MCDONALD, J. WE CONCUR: HALLER, Acting P. J. MCINTYRE, J.