Opinion
E071228
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. CATHERINE LOUISE WEST, Defendant and Appellant.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Michelle Ryle, Deputy Attorneys General, for Plaintiff and Respondent.
(Super.Ct.No. BAF1700826) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT
The court has reviewed the petition for rehearing filed February 19, 2020. The petition is denied. The opinion filed in this matter on February 18, 2020, is modified as follows:
On page 13, replace footnote 6. Footnote 6 should read:
Defendant's sufficiency of evidence challenge to her conviction on count 2 is arguably moot since we reverse that conviction based on instructional error. Nonetheless, if we consider the issue on its merit, we find sufficient evidence to support the conviction. While her son was driving, defendant stabbed at him. By the time he was able to stop the car and call 911, he had told the 911 operator that he was bleeding all over the truck. Although her son was able to avoid an accident while driving to safety and refused medical treatment, common sense could lead the jury to reasonably conclude that defendant used the pocketknife in such a manner that it was capable of causing great bodily injury. Defendant's use of the pocketknife is similar to her use of the scissors.
There is no change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. BAF1700826 & BAF1800419) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed in part; reversed in part with directions. Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Michelle Ryle, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Catherine Louise West of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for stabbing her son in the arm with scissors (count 1) on one occasion and a pocketknife (count 2) on another. The trial court found true the allegation that she committed the second offense (count 2) while released on bail for the first offense (count 1). (Pen. Code, § 12022.1.) She was sentenced to state prison for five years, and the court imposed $514.58 in booking fees.
On appeal, defendant argues that (1) the trial court erroneously instructed the jury to convict based on its finding the objects used were inherently deadly; (2) there is insufficient evidence to support the verdicts; (3) imposition of the on-bail enhancement violates her constitutional right to a jury trial; (4) the trial court erroneously believed it lacked discretion to strike the on-bail enhancement; and (5) the matter must be remanded for an ability-to-pay determination regarding the imposition of the booking fees. We agree defendant's conviction on count 2 must be reversed for prejudicial instructional error. Otherwise, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On June 1, 2017, defendant's son was driving his father and defendant in the family vehicle. Defendant was very intoxicated, "barely able to stand up." The father, who was sitting in the front seat, saw defendant using scissors to slash their son's arm. The son focused on driving to a safe location, pulled into a store parking lot, and called 911. Beaumont Police Officer Grable responded to the call. She noticed two large lacerations (more than 12 inches long) and a small puncture wound on the son's right outer bicep; however, he refused to go to the hospital. The officer removed a pair of scissors from the vehicle, as well as empty wine bottles from defendant's purse. Defendant displayed signs of intoxication.
Neither the son nor his father wanted to testify and could not "recall" the incidents that occurred on June 1, 2017 and March 26, 2018.
On March 26, 2018, defendant's son was again driving his father and defendant, who was heavily intoxicated and sitting in the back seat of the car. Defendant had recently been released from custody and had showed up at the family home intoxicated. The son and father were attempting to take defendant to lunch to "sober her up"; however, on the way, she continued to drink in the car, getting even more intoxicated. When the son and father refused to "get more wine," she "got mad," "pulled out a little knife or something," and stabbed her son in the arm. The son stopped at a store parking lot and called 911. Riverside County Sheriff's Deputy DeMattia responded, interviewed the son, and contacted defendant, who appeared intoxicated. The son was bleeding and told the officers and paramedics that defendant had attacked him and his father multiple times. Deputy Cox retrieved a small folding pocketknife (with blood on the blade) and a mini wine bottle from the rear passenger floorboard.
The parties stipulated that defendant had been convicted of two prior acts of domestic violence: On July 31, 2014, she stabbed the father with a screwdriver, and on August 10, 2017, she stabbed the father with a black folding knife.
II. DISCUSSION
A. The Erroneous Jury Instruction on Assault with a Deadly Weapon Was Prejudicial as to Defendant's Conviction Involving Count 2, but Harmless as to Count 1.
Defendant contends the trial court prejudicially erred in instructing the jury because CALCRIM No. 875 allowed the jury to convict defendant of assault with a deadly weapon on the legally erroneous theory that the scissors and pocketknife were inherently deadly weapons. The People concede the instruction was erroneous but claim the error was not prejudicial because the prosecutor's argument was based on a legally correct theory, and sufficient evidence established defendant used the pocketknife and scissors in a deadly or dangerous manner. We conclude the instructional error was harmless as to count 1 (the scissors), but it was prejudicial as to count 2 (the pocketknife).
1. Additional background facts.
The jury was instructed with CALCRIM No. 875: "A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
Regarding CALCRIM No. 875, the prosecutor argued: "So let's go into a deadly weapon. A deadly weapon is defined under the law as any object or weapon that is inherently deadly, or one that is used in such a way that it is capable of causing and likely to cause great bodily injury or death. So certain weapons are inherently dangerous. Those weapons are the ones we probably—if I said, name two weapons, you would probably think gun and knife. Those are probably inherently dangerous weapons just by the nature of what they are. [¶] Scissors, for example, have a purpose; right? You can cut paper. You can do non-violent things with them. But the moment that you pick up a pair of scissors and start stabbing at another human being's flesh, that is likely to cause or capable of causing great bodily injury to them when you're using it as a weapon to somebody else. That's what this crime is. What's—where the crime is, is you're assaulting them. But you're just not assaulting them. You're just not hitting them. You're not swinging at them. You are using a weapon to do it." (Italics added.)
In response, defense counsel pointed out that the prosecutor erred in classifying the pocketknife as an inherently dangerous weapon, arguing: "But were these actually deadly weapons? Well, [the prosecutor] kind of tried to lump in the knife. Of course it is. It's a knife. That's not exactly how that works, though. An inherently deadly weapon might be a like hunting knife or a sword or a katana or something else of that sort. [¶] But what kind of knife are we actually dealing with here? A kitchen paring knife. Is a kitchen paring knife inherently deadly and dangerous? Is that what you tend to keep it in your knife drawer for? No. It's a cutting utensil in your kitchen. [¶] So it has to be that the manner in which it was used was both likely to cause deadly or great bodily injury. How is a mark to an arm likely to cause deadly or great bodily injury? And as she said with the scissors, it's not an inherently dangerous object. So it also, again, depends on the manner in which it's used, which is scratched on an arm. The manner in which these items were used were not even used as a deadly weapon."
In rebuttal, the prosecutor failed to clarify her prior argument:
"[PROSECUTOR:] Deadly weapon means that it's used in a manner capable of causing great bodily injury or death. Do I think that [defendant] was going to kill [her son]? No. But there's no requirement for that. There's no requirement that she caused great bodily injury. That under the law would actually be a different allegation. It's just that she assaulted him in a manner and used a weapon in a manner that was likely to be capable of causing great bodily injury.
"[DEFENSE COUNSEL]: Objection. Misstates the law.
"THE COURT: Ladies and gentlemen, as I previously instructed you, if you believe that the attorneys' comments on the law conflict with my instructions, you are to follow my instructions.
"Counsel?
"[THE PROSECUTOR]: And you can read that CALCRIM. It's 845. You take a pair of scissors and you start stabbing at someone's skin, it is likely to cause great bodily injury to them. You may not. . . . [¶] Using a knife—I don't care if it's a small knife or a hunting knife, to stab another person's flesh is very dangerous and can cause them great bodily injury. No one here would volunteer to have that happen because it would be incredibly painful and incredibly dangerous."
The prosecutor mistakenly identified the instruction as "845" when she should have said 875.
2. Analysis.
In determining whether the instructional error in this case was prejudicial our analysis is guided by the Supreme Court's recent decision in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat). In that case, the defendant was charged with assault with a deadly weapon under Penal Code section 245, subdivision (a)(1), and making a criminal threat under Penal Code section 422, after he "thrust" the extended blade of a box cutter at a man at waist level while verbally threatening to kill him. (Aledamat, at p. 4.) The jury was instructed pursuant to CALCRIM Nos. 875 and 3145. The trial court "defined 'a deadly weapon' as 'any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.' (See CALCRIM No. 875.) Regarding the weapon enhancement, the court instructed that 'a deadly or dangerous weapon is any object, instrument, or weapon that is inherently dangerous, . . . or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury. In deciding whether an object is a deadly weapon, consider all of the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose.' (See CALCRIM No. 3145.) The court did not define what 'inherently' deadly or dangerous meant." (Aledamat, at pp. 4-5.)
Both CALCRIM Nos. 875 and 3145 informed the jury that "a weapon could be either inherently deadly or deadly in the way defendant used it." (Aledamat, supra, 8 Cal.5th at p. 6.) However, a box cutter "is not an inherently deadly weapon as a matter of law" in California, because only objects that are designed to be weapons, such as dirks and blackjacks, are inherently deadly weapons. (Ibid.) Nonetheless, during closing argument, the prosecutor "argued that the box cutter was an 'inherently deadly weapon,' noting that 'you wouldn't want your children playing with' it." (Id. at p. 5.) Although defense counsel argued "defendant did not use the box cutter in a way that would probably result in the application of force," counsel "never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon." (Id. at p. 14.) The jury convicted the defendant of assault with a deadly weapon and found true the weapon allegation. (Id. at p. 5.) The Court of Appeal reversed, finding the jury instruction "erroneously permitted the jury to find the box cutter to be an inherently deadly weapon" and further finding there was "'no basis in the record for concluding that the jury relied on the alternative definition of "deadly weapon" (that is, the definition looking to how a noninherently dangerous weapon was actually used).'" (Ibid.)
The California Supreme Court reversed, noting that instructional error of this type is a form of "alternative-theory error." (Aledamat, supra, 8 Cal.5th at p. 11.) The court explained: "[T]he trial court erred in presenting the jury with two theories by which it could find the box cutter a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct." (Id. at p. 7.) After explaining the type of instructional error at issue, the Supreme Court considered the proper standard of prejudice to be applied to such instructional error, concluding: "[A]lternative-theory error is subject to the . . . general Chapman harmless error test. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Aledamat, at p. 13; see id. at pp. 9-13.)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
Applying the Chapman standard of prejudice to the circumstances of the case, the Aledamat court concluded that "[a] number of circumstances [demonstrate] beyond a reasonable doubt that the error was harmless." (Aledamat, supra, 8 Cal.5th at p. 13.) The Supreme Court rationalized that the potential for prejudice from the instructional error was diminished by the fact that the modified version of CALCRIM No. 875 referred to an object that "is 'inherently deadly, or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.'" (Aledamat, at pp. 13-14.) The court explained that this "juxtaposition" suggested to the jury "what the 'inherently deadly' language was driving at." (Id. at p. 14.) The Supreme Court also reasoned that the arguments of counsel supported the conclusion that the jury was unlikely to have viewed the box cutter as being inherently deadly without considering the surrounding circumstances, including how the defendant used the box cutter. In this regard, the court observed that neither the People nor the defense "suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon," and defense counsel "never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon." (Ibid.) The Supreme Court also stated that it would have been "futile" for defense counsel to have made such an argument since, when used as a weapon, a box cutter "is potentially deadly," particularly when accompanied by a threat to kill the victim. (Ibid.)
Finally, the Aledamat court noted that the jury "must have considered the term 'inherently deadly' to mean something" (Aledamat, supra, 8 Cal.5th at p. 15), and the jury had found all of the following: "(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person." (Ibid.) In light of the findings, the Aledamat court concluded that no reasonable jury "'could have failed to find' that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury." (Ibid.) The Aledamat court therefore concluded that the instructional error was harmless beyond a reasonable doubt. (Ibid.)
Here, the parties agree the challenged jury instruction erroneously presented two theories by which the jury could find the scissors and pocketknife constituted deadly weapons either inherently, or as used (Aledamat, supra, 8 Cal.5th at pp. 7-8), since neither object is deadly per se, and both are commonly used for nonviolent purposes. We, therefore, must determine whether the instructional error was prejudicial under Aledamat. In doing so, we apply "the more general Chapman harmless error test. [We] must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Aledamat, at p. 13.)
a. Count 1 (defendant's use of the scissors).
Applying the Chapman standard, we conclude, as to count 1, the instructional error was harmless beyond a reasonable doubt. Defendant used a pair of scissors in a deadly or dangerous manner when she repeatedly stabbed at her son while he was driving a vehicle. Her actions caused him to suffer lacerations, over 12 inches long, and a puncture wound. In closing argument, both counsel conceded that scissors are not inherently dangerous and focused the jury's attention solely on the legally valid theory—how defendant used the scissors. The prosecutor argued, "[T]he moment that you pick up a pair of scissors and start stabbing at another human being's flesh, that is likely to cause or capable of causing great bodily injury to them when you're using it as a weapon to somebody else. That's what this crime is." In response, defense counsel argued that defendant's use of the scissors amounted to nothing more than "scratches on an arm. The manner in which [the scissors] were used [was] not even used as a deadly weapon." The arguments of counsel support the conclusion that the jury was unlikely to have viewed the scissors as being inherently deadly, without considering how defendant used them.
Further, as in Aledamat, in finding defendant guilty of an assault, the jury necessarily found, among other elements, that she performed an act that "by its nature, would directly and probably result in the application of force" to her son. Under this circumstance, we may conclude, beyond a reasonable doubt, that no jury would make this finding and at the same time not find that defendant used the scissors in a way that was capable of causing or likely to cause death or great bodily injury. (Aledamat, supra, 8 Cal.5th at p. 15.) Nothing more than pure speculation about what the jury could have done consistent with the erroneous instruction supports the notion that the jury in fact relied on the legally invalid theory. On these facts, we find it inappropriate to disturb the jury's verdict as to count 1.
b. Count 2 (defendant's use of the pocketknife).
Although we have found that the jury was unlikely to have viewed the scissors as being inherently deadly, without considering how defendant used them, we cannot reach the same finding regarding the pocketknife. Applying the Chapman standard, we conclude, as to count 2, that the error in instructing the jury as to liability for assault with a deadly weapon, based on the use of an inherently deadly weapon, cannot be deemed harmless. (See Chapman, supra, 386 U.S. at p. 24.)
Here, the jury was erroneously presented with two alternative theories by which they "could find the [pocketknife] a deadly weapon: (1) inherently, or (2) as used." (Aledamat, supra, 8 Cal.5th at p. 7; see People v. Aguilar (1997) 16 Cal.4th 1023, 1029 (Aguilar) [some objects, like dirks and blackjacks, are inherently deadly as a matter of law], superseded by statute as stated in People v. Perez (2018) 4 Cal.5th 1055, 1065, 1067-1068.) The prosecutor compounded this error, making it prejudicial, with her closing argument wherein she erroneously claimed that the pocketknife, being a knife, is an inherently dangerous weapon. While defense counsel pointed out the error, the prosecutor failed to acknowledge it. Instead, she stated, "Using a knife—I don't care if it's a small knife or a hunting knife, to stab another person's flesh is very dangerous and can cause them great bodily injury. No one here would volunteer to have that happen because it would be incredibly painful and incredibly dangerous." In effect, the prosecutor placed the pocketknife in the same category as a gun and a hunting knife, and affirmatively urged the jury to rely on the legally invalid theory (the pocketknife is an inherently deadly weapon). As such, we cannot say, beyond a reasonable doubt, that the jury did not in fact do so. On this record, we are compelled to reverse the jury's verdict on count 2.
The dictionary defines a hunting knife as "a large stout knife used to skin and cut up and sometimes to dispatch game." (See <http://www.merriam-webster.com/dictionary/hunting_knife> [as of Feb 18, 2020].)
Since defendant's conviction on count 2 is reversed, the issues involving the attached on-bail enhancement (§ 12022.1) are moot, and we do not decide them here.
Accordingly, we conclude the trial court's error in instructing the jury pursuant to CALCRIM No. 875 was harmless beyond a reasonable doubt as to count 1 only.
B. Substantial Evidence Supports Defendant's Count 1 Conviction.
Defendant contends her conviction in count 1 is not supported by substantial evidence because the scissors are not an inherently deadly weapon, nor did she use them in a manner capable of causing and likely to produce great bodily harm or death. We find sufficient evidence and reject her contention.
Defendant's sufficiency of evidence challenge to her conviction on count 2 is moot since we reverse that conviction based on instructional error. --------
"'[S]ection 245, subdivision (a)(1) punishes "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Italics added.)' [Citation.] In the context of this statutory provision, a '"deadly weapon"' is '"any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury."' [Citation.] Because this definition focuses on potentiality, the People need not prove an actual injury to a victim, or even physical contact between the defendant and a third person, in order to substantiate a conviction for assault with a deadly weapon other than a firearm. [Citation.] [¶] . . . [¶] When deciding whether an object that is not inherently deadly is nonetheless likely to produce great bodily injury or death, 'the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.'" (In re D.T. (2015) 237 Cal.App.4th 693, 698-699.)
Our inquiry is limited to whether substantial evidence supports the trier of fact's finding that defendant used the object as a deadly weapon. (In re B.M. (2018) 6 Cal.5th 528, 533.) In conducting our inquiry, we are guided by the following principles: "First, the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also '"likely to produce death or great bodily injury."'" (Ibid.) Second, the determination of whether the object is a deadly weapon rests on evidence of how a defendant actually used it. (Id. at p. 534.) "Third, although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant. '[A] conviction for assault with a deadly weapon does not require proof of an injury or even physical contact' [citation], but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (Id. at p. 535.) Because an object can be a deadly weapon even if it is not actually used with deadly force, many California courts have affirmed convictions under section 245, subdivision (a)(1), when the object used was "'some hard, sharp, pointy thing that was used only to threaten, and not actually used to stab.'" (In re D.T., supra, 237 Cal.App.4th at p. 699; accord, People v. Page (2004) 123 Cal.App.4th 1466, 1471-1472.)
In the case before us now, we conclude the prosecutor showed that defendant used the scissors in such a manner that was likely to cause death or great bodily injury. The prosecutor did this by adducing evidence from the witnesses that defendant used the scissors to slash at her son's right arm while he was driving. Her actions caused him to suffer lacerations, over 12 inches long, and a puncture wound. While defendant places great weight on the fact her son did not suffer "great bodily injury," we are hard pressed to see why common sense could not properly lead the jury to reasonably conclude that she used the scissors "'in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (Aguilar, supra, 16 Cal.4th at pp. 1028-1029; accord, People v. Page, supra, 123 Cal.App.4th at p. 1472 [a pencil, which is less sharp and less likely to cause serious harm than a knife, may be a deadly weapon when it is held against a victim's throat without any slicing or stabbing motions]; People v. Simons (1996) 42 Cal.App.4th 1100, 1106-1107 [a screwdriver may be a deadly weapon even when the defendant only brandishes it at police officers without actually touching anyone].) As the People point out, a slight turn of the scissors would have resulted in much more serious injury, including a car crash. Also, defendant's attempt to minimize her actions by asserting that there is no evidence that her son "pulled his arm away to prevent her from poking him again or to lessen the impact of the poke," or "reached over and pushed her away," fails to account for the evidence that the son was focused on getting the vehicle to a safe place in order to stop and call 911. The totality of this evidence is sufficient to support defendant's conviction in count 1.
C. The Trial Court Correctly Imposed the Booking Fee.
Defendant contends the trial court erred in concluding that it lacked discretion to not impose the booking fee under Government Code section 29550.2. The People contend defendant's failure to object at sentencing forfeits this challenge on appeal. While both parties cite section 29550.2 as the applicable statute, the record shows the fee was imposed under section 29550, not section 29550.2. Therefore, as we explain, we reject both parties' contentions.
1. Additional background facts.
The probation officer's report recommended that defendant pay "booking fees of $514.58. [29550 GC]." At sentencing, the following exchange occurred:
"[THE COURT:] I'm going to impose but stay the cost of presentence probation report, not to exceed $1,095. I'll stay that and upon successful completion of parole stay it permanently.
"Pay booking fees of $514.58.
"Do you wish to be heard concerning that, [defense counsel]?
"[DEFENSE COUNSEL]: No, your Honor. Submit.
"THE COURT: I don't believe I have discretion to waive it." The abstract of judgment provides that defendant "[p]ay booking fees of $514.58; Payable to Division of Adult Institutions (GC 29550)."
2. Analysis.
Government Code sections 29550, 22950.1, and 22950.2 govern fees for processing or "booking" arrested persons into a county jail. To a certain extent, the fees vary depending on the identity of the arresting agency and the eventual disposition of the person arrested. Arrests made by an agent of a "city, special district, school district, community college district, college, or university" are governed by sections 29550, subdivision (a)(1) and 29550.1. Under section 29550, subdivision (a)(1), the county may charge the local arresting agency a booking fee. When it does so, under section 29550.1, "The court shall, as a condition of probation, order the convicted person to reimburse the [local agency]."
Arrests made by a county agent or officer are governed by Government Code section 29550, subdivision (c). Under subdivision (c), if the person is convicted of any criminal offense related to the arrest, the county is entitled to recover a booking fee from the arrestee, but the fee may not exceed its actual administrative costs, including fixed overhead.
Government Code section 29550, subdivision (d)(1) and (d)(2), specifies what a court is to do when it has been notified that the county is entitled to a booking fee. Under subdivision (d)(1), the judgment of conviction "may" include an order imposing the booking fee. However, under subdivision (d)(2), if the person convicted is granted probation, the fee becomes mandatory, although subject to a finding of an ability to pay: "The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the . . . fee."
Finally, arrests made by "any governmental entity not specified in Section 29550 or 29550.1" are governed by Government Code section 29550.2, subdivision (a). In general, with one subtle difference, the language of this provision is consistent with the language of the others. The difference is that, under section 29550.2, all convicted persons—those sent to prison, as well as those granted probation—are subject to a mandatory booking fee conditioned upon their ability to pay. The county may be entitled to recover a booking fee, but whether it can get an order for the fee depends on the arrestee's financial condition.
All of this explains why defendant asserts that the fee in this case was imposed pursuant to Government Code section 29550.2. She wants it to be conditioned on her ability to pay. However, defendant was arrested by a Beaumont police officer in count 1. Accordingly, her case is governed by sections 29550 and 29550.1, not section 29550.2. Since she was not granted probation but sent to prison, the controlling provision under section 29550 is subdivision (d)(1), which requires the inclusion of a booking fee in the judgment of conviction, and no ability-to-pay determination is necessary.
III. DISPOSITION
Defendant's conviction of assault with a deadly weapon (count 2) is reversed. Retrial is permitted and, after the filing of the remittitur in the trial court, if the People do not retry defendant on count 2 within the time limit set forth in Penal Code section 1382, subdivision (a)(2) (i.e., 60 days unless waived by defendant), then the trial court shall proceed to resentence defendant. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.