Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN261847, Daniel B. Goldstein, Judge.
NARES, Acting P. J.
Stephen Frederick Kopycinski pleaded guilty to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). (Undesignated statutory references will be to the Penal Code.) He admitted that during the commission of the offense, he personally used a piece of wood as a deadly weapon (§ 1192.7, subd. (c)(23)). The court granted Kopycinski formal probation and imposed a variety of fees and charges, including (1) an $800 fine, penalty assessment, and surcharge (§ 1465.7, subd. (a)); (2) a $25 administrative screening fee (booking fee) (§ 1463.07); (3) a $30 court security fee (§ 1465.8); (4) a $154 criminal justice administration fee (Gov. Code, § 29550.1); (5) a $30 immediate and critical needs account fee (Gov. Code, § 70373); (6) a $200 restitution fund fine (§ 1202.4, subd. (b)); and (7) victim restitution in the amount of $320. The total amount the court ordered Kopycinski to pay was $2,159.
The facts of the offense are omitted because they are not relevant to the issues raised on appeal.
The court also imposed a probation revocation fine (§ 1202.44), which was suspended, and thus is not subject to this appeal.
Kopycinski appeals, contending (1) the $800 fine, consisting of a $200 base fine, a $560 penalty assessment, and a $40 surcharge was unauthorized and/or excessive; (2) the $25 administrative screening fee was unauthorized because it can only be imposed when an arrestee is released on his/her own recognizance and Kopycinski was released on bond; (3) the imposition of the $154 booking fee violated his right to due process because substantial evidence did not support his ability to pay and his counsel's failure to request a hearing to determine his ability constituted ineffective assistance of counsel; (4) the $30 court security fee was unauthorized because it cannot be made a condition of probation; (5) and the total amount ordered was incorrectly calculated regardless of the propriety of the fees. Kopycinski argues the contested fees must be stricken and the remaining fees properly calculated.
The People concede (1) the penalty assessment was excessive and the surcharge was impermissibly doubly imposed; (2) the $25 administrative screening fee was unauthorized because it can only be imposed when an arrestee is released on his/her own recognizance and Kopycinski was released on bond; (3) the $30 court security fee was unauthorized because it cannot be made a condition of probation; and (4) the total amount ordered was incorrectly calculated regardless of the propriety of the fees.
We accept the People's concessions and conclude (1) the $800 for fine, penalty assessment, and surcharge was authorized but excessive; (2) the $25 administrative screening fee was unauthorized because section 1463.07 is inapplicable; (3) the $30 court security fee was unauthorized because it cannot be made a condition of probation (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402-1403 ["Certain fines... may by statute be imposed as conditions of probation, but the court security fee is not one of them."); and (4) the fees were improperly calculated. We reject Kopycinski's remaining contention that the $200 base fine and the booking fee were unauthorized. Accordingly, we affirm in part and reverse in part.
Citing People v. McCoy (2007) 156 Cal.App.4th 1246, 1253, Kopycinski contends, and the People concede, the penalty assessment was excessive in the amount of $40 because the $5 courthouse construction penalty imposed on every $10 increment of the $200 base fine under Government Code section 70372, subdivision (a) should have been reduced to $3. We agree McCoy governs and accordingly strike $40 from the penalty assessment. Furthermore, we agree the surcharge was impermissibly doubly imposed in that it was included in the penalty assessment. Thus, we strike another $40 from the penalty assessment for a total of $480. However, we reject Kopycinski's argument that the surcharge was unauthorized. (See § 1465.7, subd. (a).)
Section 1463.07 provides that the fee "shall be collected from each person arrested and released on his or her own recognizance upon conviction of any criminal offense...." Kopycinski remained in custody after a preliminary hearing and then he was released on a bond, not his own recognizance.
The court incorrectly calculated the total of the order, requiring Kopycinski to pay $2,159. The total should have been $1,559. The $600 discrepancy appears to have resulted from a clerical error. The restitution fund fine, although ordered at $200, was originally entered at $800 and then crossed out and replaced with $200. Therefore, the correct total amount from which the improperly imposed fines shall be stricken is $1,559.
Kopycinski was convicted of assault with a deadly weapon under section 245, subdivision (a)(1), which provides: "Any person who commits an assault upon the person of another with a deadly weapon... shall be punished by imprisonment in the state prison... or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." Accordingly, the $200 base fine was explicitly authorized by the plain language of the statute. Further, section 1203.1, subdivision (a)(1), permits the court to fine the defendant in a sum not to exceed the maximum fine provided by law. Thus, the $200 base fine was not unauthorized.
At oral argument, we accepted the parties' stipulation that we judicially notice (Evid. Code, §§ 452-453) title 3, division 4, chapter 1, section 34.103 of the San Diego County Code of Regulatory Ordinances, which provides for a $154 booking fee "equal to the administrative costs... incurred by the County in booking or other processing of arrested persons in County jails." We conclude this provides substantial evidence to satisfy section 29550, subdivision (c) of the Government Code, which provides a booking fee "shall not exceed the actual administrative costs [of booking an arrestee]."
DISPOSITION
The $560 penalty assessment is reduced by $80 to $480, the $25 administrative screening fee is stricken, and the $30 court security fee is stricken. The total amount Kopycinski must pay is reduced by $135 to $1,424. As modified, the judgment is affirmed.
WE CONCUR: HALLER, J., AARON, J.
Furthermore, we reject Kopycinski's argument the fee was unauthorized because substantial evidence did not support the court's finding of his ability to pay the fee. A trial court's finding of the defendant's present ability to pay need not be express, but may be implied through the content and conduct of the hearings. (See People v. Phillips (1994) 25 Cal.App.4th 62, 70-71.) Kopycinski's probation report indicates he has four years of a college education, previously owned his own business, completed a commercial trucking program and worked in hauling services before his arrest, and he claimed to not have trouble finding work. The court stated it read and considered the report in imposing his sentence. We thus conclude substantial evidence supports the trial court's finding of his ability to pay the $154 booking fee.