Filed 5/20/13 P. v. Cosey CA3
                                                  NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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.



                     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                             THIRD APPELLATE DISTRICT

                                                            (Sacramento)

                                                                    ----



THE PEOPLE,                                                                                               C071253

                     Plaintiff and Respondent,                                                (Super. Ct. No. 10F03099)

          v.

STEFAN DWAYNE COSEY,

                     Defendant and Appellant.




          Convicted of oral copulation with a young minor (Pen. Code, § 288.7) and having
served two prior prison terms (Pen. Code, § 667.5, subd. (b)), defendant Stefan Dwayne
Cosey was sentenced to 15 years to life in prison. He contends on appeal that the trial
court erred in ordering him to pay booking and classification fees (Gov. Code, § 29550.2)
without first finding he had the ability to pay those fees. He further contends the People
failed to prove the fees were actually incurred. Finally, he argues that he was entitled to a
jury determination of both his ability to pay the fees and whether they were actually
incurred.




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         Given the nature of defendant‟s claims and the lack of objection below, we
dispense with a summary of the facts of defendant‟s conviction and proceed directly to
our discussion of his claims. As we will explain, we decline to address his first two
contentions and disagree with his last. Accordingly, we shall affirm the judgment.
                                       DISCUSSION
                                               I
                                          Forfeiture
         Defendant complains of two fees imposed by the trial court at sentencing--a main
jail booking fee of $270.17 and a main jail classification fee of $51.34 (see Gov. Code,
§ 29550.2). At the time of sentencing, defendant did not object to the fees‟ imposition.
He now contends these fees must be stricken because the trial court failed to assess and
find his ability to pay, and also because the record lacks evidence of proof of “actual”
costs.
         The People argue defendant has forfeited these challenges to the fees at issue
because he raised no objection to their imposition or amount in the trial court. We agree.
We have repeatedly held that failure to object in the trial court based on lack of ability to
pay forfeits the contention of error. (See People v. Crittle (2007) 154 Cal.App.4th 368,
371; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27
Cal.App.4th 1466, 1468-1469; see also People v. McMahan (1992) 3 Cal.App.4th 740,
749-750 [defendant knowledgeable about his ability to pay, and his failure to object to
fine recommended by probation officer or offer contrary evidence forfeited claim].)
Recently, our Supreme Court agreed with this view. (People v. McCullough (Apr. 22,
2013, S192513) ___ Cal.4th ___.)




                                              2
                                              II
                                       Right to a Jury
       Lastly, defendant argues he was entitled to a jury determination of his ability to
pay the two fees at issue, as well as the amounts of the fees actually incurred.1 Defendant
relies on the recent United States Supreme Court decision, Southern Union Co. v. United
States (2012) 567 U.S. __, __ [183 L.Ed.2d 318] (Southern Union Co.), to support his
contention. The criminal fines at issue in Southern Union, however, are materially
different than the administrative fees at issue here.
       In Southern Union Co., the Supreme Court held that the Sixth Amendment right to
a jury applies to “sentences of criminal fines.” (Southern Union Co., supra, 567 U.S. at
p. ___ [183 L.Ed.2d at p. 325].) There, the violations at issue were punishable by, inter
alia, a fine of up to $50,000 for each day of violation. (Southern Union Co., supra, at
p. ___ [183 L.Ed.2d at p. 325].) A jury found Southern Union violated the law, but made
no specific factual finding as to the number of days it was in violation. (Ibid.) The trial
court imposed an aggregate fine of $38.1 million, concluding from the “„content and
context of the verdict all together‟ that the jury found a 762-day violation.” (Id. at p. ___
[183 L.Ed.2d at p. 326].)



______________________________________________________________

1  At the time of defendant‟s sentencing, courts had not yet held that the right to a jury
determination applies to sentences of criminal fines. Thus, defendant did not forfeit this
claim by his failure to request a jury trial. (See People v. Black (2007) 41 Cal.4th 799,
810 [“although challenges to procedures or to the admission of evidence normally are
forfeited unless timely raised in the trial court, „this is not so when pertinent law later
changed so unforeseeably that it is unreasonable to expect trial counsel to have
anticipated the change‟”]; People v. French (2008) 43 Cal. 4th 36, 48 [waiver of jury trial
on lewd conduct with child did not waive his right to jury trial of aggravating sentencing
factor of taking advantage of position of trust and confidence, where at time of plea, no
right to jury trial on such circumstance had been recognized].) We note with disapproval
that the People appear to have completely ignored this contention in their briefing.

                                              3
       The Supreme Court held that the district court‟s factual finding as to the number of
days Southern Union committed the crime violated its Sixth Amendment right to a jury
determination. (Southern Union Co., supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 328].)
In reaching its decision, the Supreme Court held that “[c]riminal fines, like . . . other
forms of punishment, are penalties inflicted by the sovereign for the commission of
offenses.” (Southern Union Co., supra, at p. ___ [183 L.Ed.2d at p. 326].)
       The instant case is eminently distinguishable from Southern Union Co. Here,
neither of the fees at issue is a penalty “inflicted by the sovereign for the commission of
offenses.” (Southern Union Co., supra, 567 U.S. at p.___ [183 L.Ed.2d at p. 326].)
Rather, fees imposed pursuant to Government Code section 29550.2 (section 29550.2
fees) are administrative in nature, created to address a fiscal crisis in California “by
allowing a county to recover costs incurred in booking or otherwise processing an
arrested person who thereafter is convicted.” (People v. Rivera (1998) 65 Cal.App.4th
705, 707-708 (Rivera).) Section 29550.2 fees are imposed “not as retribution for what
the convicted criminal has done to a victim and/or society, but for his or her use of jail
services as a result of the criminal behavior.” (Rivera, supra, 65 Cal.App.4th at p. 711.)
       Moreover, section 29550.2 fees are limited to the actual costs incurred by the
county. (Rivera, supra, 65 Cal.App.4th at p. 708.) Thus, unlike the criminal penalties
imposed in Southern Union Co., section 29550.2 fees are “assessed against all convicted
offenders who have the ability to pay, without regard to the nature or severity of their
respective offenses.” (Rivera, supra, at p. 708.) In short, section 29550.2 fees are not a
penalty inflicted for the commission of crimes. (Compare Rivera, supra, at pp. 708, 711
with Southern Union Co., at p. ___ [183 L.Ed.2d at p. 326].)
       Defendant nevertheless argues the factual determination associated with section
29550.2 fees (defendant‟s ability to pay the fees and the amount of costs incurred by the
county) are analogous to the trial court‟s determination (without jury input) of the



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number of days Southern Union was in violation of federal environmental laws. But
these two determinations have little, if anything, in common.
       In Southern Union Co., the trial court made a factual determination that
dramatically increased the actual amount of the fine imposed, that is, the number of days
the company was actually in violation of the law. The factual determinations associated
with section 29550.2 fees do not and cannot increase the amount of booking fees
defendant is required to pay. Defendant‟s comparison fails. (See also People v. Kramis
(2012) 209 Cal.App.4th 346, 351-352 [rev. den.] [rejecting the claim that Southern Union
had any effect on the trial court‟s discretion to select an appropriate restitution fine
between $200 and $10,000, in part because, by imposing the mandated fees, “The trial
court did not make any factual findings that increased” the amount of the administrative
fees, “beyond what the jury‟s verdict--the fact of the conviction--allowed”].)
       We thus conclude defendant was not entitled to a jury determination regarding his
ability to pay the booking fees, or the amount of costs incurred by the county.
                                       DISPOSITION
       The judgment is affirmed.



                                                        DUARTE                     , J.



We concur:



         NICHOLSON                   , Acting P. J.



         HULL                        , J.



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