Opinion
H036275
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JACK LEO RYAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1065323)
Defendant Jack Leo Ryan was convicted by plea of one count of inflicting corporal injury on a spouse or cohabitant while having a prior conviction of spousal battery within the preceding seven years. (Pen. Code, §§ 273.5, subd. (e)(2), 243, subd. (e).) He was sentenced to prison for four years and ordered to pay, among other things, a criminal justice administration fee to the City of San Jose. On appeal, defendant challenges the order on the ground that it contains no ability-to-pay requirement, an omission defendant contends is a violation of his right to equal protection of the law. (U.S. Const., 14th Amend.; Cal. Const. art. I, § 7.) He also challenges the calculation of his presentence custody credits. We shall modify the judgment to correct the custody credits and affirm as modified.
I. BACKGROUND
According to the probation report, defendant was arrested on January 5, 2010, after San Jose Police took a report from the victim in which she stated that defendant had become physically violent toward her a few days earlier. Defendant was charged by complaint with one count of violating Penal Code section 273.5, subdivision (e)(2). The complaint also alleged one prior strike conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
On February 10, 2010, defendant pleaded no contest to the charge and admitted the prior conviction allegation with the understanding that he would file a Romero motion and, regardless of the outcome of that motion, he would be sentenced to no more than four years in prison. The trial court denied the Romero motion and sentenced defendant to the agreed maximum of four years. The trial court adopted the recommendations of the probation report, imposing "$129.75 criminal justice administration fee to the City of San Jose . . . pursuant to Government Code [sections] 29550, 29550.1 and 29550.2." Defendant's attorney did not object to the fee. The court made no finding with regard to defendant's ability to pay. The probation report indicates that defendant was last employed in 2001. At the Romero hearing, which took place immediately prior to the sentencing hearing, defendant's attorney had stated that defendant's only income is Social Security disability for which he would have to reapply if sentenced to more than two years in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Hereafter all unspecified statutory references are to the Government Code.
II. DISCUSSION
A. The Criminal Justice Administration Fee
Counties typically operate the jails in this state and bear the expense of providing for persons held there. (§ 29602, Pen. Code, §§ 4000, 4015; City of San Jose v. State of California (1996) 45 Cal.App.4th 1802, 1813-1814.) The Government Code scheme at issue here focuses upon the ability of a county to recoup the cost of processing arrested persons brought to the jail. (§§ 29550, 29550.1 & 29550.2.) Under subdivision (c) of section 29550, if county personnel arrested the person booked, the county may recoup its booking expenses directly from the arrested person, if convicted. If a "city, special district, school district, community college district, college, or university" made the arrest, the county may bill that jurisdiction for the booking costs. (§ 29550, subd. (a)(1).) And if the arrest was made by a state law enforcement agency or other governmental entity the county is not authorized to bill, then the county is entitled to recoup its costs directly from the arrested person, if convicted. (§ 29550.2.) As to those jurisdictions subject to being billed for a county's booking costs, they may recover from the arrested person the fees that the county charged them. (§ 29550.1.) Regardless of which agency made the arrest, when the arrested person is convicted, the costs are assessed by the trial court's ordering the payment of a criminal justice administration fee, commonly known as a booking fee, as part of the judgment of conviction. (§§ 29550, subd. (c), 29550.1, 29550.2, subd. (a).)
In this case, the judgment of conviction ordered defendant to pay a booking fee to the City of San Jose. Although the trial court's order cites all three Government Code sections, because the fee is payable to a city, the fee was necessarily imposed pursuant to section 29550.1. Section 29550.1 provides, in full, "Any city, special district, school district, community college district, college, university, or other local arresting agency 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, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee." (Italics added.)
Defendant maintains that the trial court should have determined whether he had the ability to pay before imposing the booking fee and that the evidence is insufficient to support such a finding if it had done so. Defendant acknowledges that he did not object to the fee below. Relying upon this court's ruling in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), defendant maintains that, notwithstanding his failure to object, he may raise the objection on appeal because it concerns the sufficiency of the evidence.
In Pacheco, the booking fee was imposed as a condition of probation under either section 29550 or 29550.2. Those code sections require an ability-to-pay finding when the fee is imposed as a condition of probation. (Pacheco, supra, 187 Cal.App.4th at p. 1397.) Here, defendant was not placed on probation and the fee was imposed under section 29550.1, which does not contain an ability-to-pay prerequisite. Accordingly, defendant's challenge to the sufficiency of the evidence of his ability to pay is unavailing because there was no requirement for such evidence under the law. Whether or not the argument was forfeited, it fails on its merits.
Defendant maintains that because an ability-to-pay finding is required under sections 29550 and 29550.2 the Legislature's failure to include a similar requirement in section 29550.1 violates his right to equal protection of the law. His attorney's failure to object to the fee on this constitutional ground, he says, amounts to ineffective assistance of counsel. To prove ineffective assistance of counsel defendant must show both that counsel's performance was deficient and that defendant was prejudiced by the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 697.) " 'In some cases, . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.' " (People v. Avena (1996) 13 Cal.4th 394, 419, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
One satisfactory explanation for the failure to object is the apparent futility of objecting. Even if constitutional principles would have required a finding that defendant had the ability to pay, since the amount of the fee was relatively minimal, only $129.75, and since defendant then had a source of income, the Social Security disability check to which counsel referred just moments earlier when arguing the Romero motion, counsel could well have decided that any objection to the fee would have been rejected. Counsel may have been aware of other assets. And counsel would have known that the court was entitled to consider prison wages, as well. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Although, as defendant contends, future prison earnings may often be insufficient evidence of the ability to pay attorney fees (People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218), this is not an attorney fees case. Accordingly, since the record sheds no light on why counsel failed to object, and since this is not a case in which there could be no satisfactory explanation for the failure, the order must be affirmed.
B. The Custody Credits
The trial court also awarded defendant custody credits of 287 actual days and 142 days pursuant to Penal Code section 4019. Defendant maintains that he actually served 288 days, which means he is due credit for one additional actual day and two days under Penal Code section 4019. We agree.
There is no dispute that defendant was arrested on January 5, 2010, and sentenced on October 19, 2010. The period between January 5 and October 19, inclusive, is 288 days. The Attorney General maintains that in calculating actual days in custody the day of arrest does not count. That might be correct in some cases. But as far as we can tell from the record, defendant was taken into custody on the day he was arrested. He is entitled to credit under Penal Code section 2900.5 for every day he was in custody. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) "Conduct credits shall be computed on the full period of custody commencing with the day of arrest. [Citation.] Therefore, a sentencing court must award credits for all days in custody up to and including the day of sentencing." (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Accordingly, defendant is entitled to credit for 288 actual days.
Under Penal Code section 4019, a term of six days is be deemed served for every four days spent in actual custody. (Pen. Code, § 4019, subd. (f).) To calculate the credit, one divides the days of actual custody credit by four and multiplies the result, excluding any remainder, by two. (People v. Bravo, supra, 219 Cal.App.3d at p. 735.) As defendant correctly argues, this formula yields 144 days conduct credit for a total of 432 days. We shall modify the judgment accordingly.
Defendant's prior strike conviction disqualifies him from additional credit provided by the amendments to Penal Code section 2933. (Stats. 2009-2010, Reg. Sess., ch. 426, § 1, p. 2087, eff. Sept. 28, 2010.) We also note that the version of Penal Code section 4019 that was in effect at the time of sentencing in this case was expressly prospective. (Stats. 2009-2010, Reg. Sess., ch. 426, § 2, p. 2088, eff. Sept. 28, 2010.) Under either of the prior versions of Penal Code section 4019 (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, p. 4427, eff. Jan. 25, 2010; Stats. 1981-1982, Reg. Sess., ch. 1234, § 7, pp. 4553-4554), defendant was entitled to credit calculated under the six-for-four formula.
III. DISPOSITION
The judgment is modified to correct defendant's presentence credits to 288 days of actual custody and 144 days pursuant to Penal Code section 4019. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified the judgment is affirmed.
Premo, Acting P.J.
WE CONCUR:
Duffy, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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