Filed 1/22/16 P. v. Montgomery 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Respondent,                                          C077753, C078819

         v.                                                                      (Super. Ct. No. 13F08366)

JOHNLYNN S. MONTGOMERY,

                   Defendant and Appellant.




         A jury convicted defendant Johnlynn S. Montgomery1 of commercial burglary and




1 Defendant’s first name is spelled differently in each record for the cases presented in
this consolidated appeal. We adopt the spelling in case No. C077753 for consistency.

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the trial court sentenced him to seven years in prison. The trial court also denied
defendant’s subsequent petition for resentencing under the provisions of Proposition 47.
(Pen. Code, § 1170.18). Defendant filed two appeals, one from the judgment and one
from the order denying his petition for resentencing, which we consolidated.
       In case No. C078819, appointed counsel asks us to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) Finding no arguable error that would result in a disposition more
favorable to defendant, we will affirm the order denying his petition for resentencing.
       Regarding case No. C077753, defendant contends the trial court erred in ordering
him to pay a crime prevention fine, main jail booking fee and main jail classification fee
without determining his ability to pay. Agreeing with defendant’s contention, we will
vacate the crime prevention fine, main jail booking fee and main jail classification fee
and remand the matter to the trial court to determine defendant’s ability to pay.
                                     BACKGROUND
       A jury found defendant guilty of commercial burglary. (Pen. Code, § 459.)2 The
trial court found true the allegations that defendant had a prior strike conviction and
served a prior prison term, and sentenced defendant to an aggregate term of seven years
in state prison. Defendant appealed the judgment, initiating appellate case No. C077753.
       Defendant subsequently filed a petition for resentencing pursuant to section
1170.18. The trial court denied the petition due to ineligibility based on defendant’s
current conviction. Defendant appealed the denial of his petition for resentencing,
initiating appellate case No. C078819.




2 Undesignated statutory references are to the Penal Code.


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         Defendant’s appeals were consolidated by this court. Defendant’s appointed
counsel filed a single Appellant’s Opening Brief addressing both cases, and we address
each case in turn.
                                               A
         Regarding case No. C078819, appointed counsel asked this court to review the
record and determine whether there are any arguable issues on appeal. (Wende, supra,
25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing the opening brief. More than 30 days elapsed
and we received no communication from defendant.
         Having undertaken an examination of the entire record in case No. C078819, we
find no arguable error that would result in a disposition more favorable to defendant.
                                               B
         Regarding case No. C077753, defendant contends the trial court erred in ordering
him to pay a crime prevention fine, main jail booking fee and main jail classification fee
without determining his ability to pay.
         At sentencing, the trial court ordered defendant to pay various fines and fees,
including a $10 crime prevention fine pursuant to section 1202.5, a $382.22 main jail
booking fee pursuant to Government Code section 29550.2, and a $61.75 main jail
classification fee. Although defendant argues on appeal that the trial court erred in
failing to identify the statutory basis for the main jail classification fee, we presume the
fee was imposed pursuant to Government Code section 29550.2.
         The following colloquy then took place between defense counsel and the trial
court:
         “[DEFENSE COUNSEL]: One last thing for the Court to -- just to make sure for
the fines that were imposed here, are those mandatory fines? Because as for [defendant],
he has an inability to pay based on being appointed counsel, so --



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       “THE COURT: Regarding appointed counsel, he is to be evaluated for his ability
to pay. I presume that he is indigent based on what I am seeing in his record. But in
terms of the other fees, they are required to be imposed.
       “[DEFENSE COUNSEL]: So just for the record, we are staying anything that’s
not mandatory?
       “THE COURT: Yes.”
       The crime prevention fine, main jail booking fee and main jail classification fee
were included in the abstract of judgment.
       Before a trial court may impose the crime prevention fine, main jail booking fee or
main jail classification fee, the trial court must determine that the defendant has the
ability to pay. (Pen. Code, § 1202.5; Gov. Code, § 29550.2.) Defendant’s factual
inability to pay is forfeited if not raised in the trial court. (People v. McCullough (2013)
56 Cal.4th 589, 598-599 [Gov. Code, § 29550.2]; People v. Crittle (2007)
154 Cal.App.4th 368, 371 [Pen. Code, § 1202.5].)
       Here, defendant did not forfeit the issue because when the trial court imposed the
crime prevention fine, main jail booking fee and main jail classification fee, defense
counsel asserted defendant’s inability to pay. It appears from the record, however, that
the trial court misunderstood defense counsel’s argument. The trial court presumed
defendant was indigent but focused on the fees of appointed counsel, saying defendant
would be evaluated for his ability to pay those fees. Because the trial court imposed the
crime prevention fine, main jail booking fee and main jail classification fee without a
finding that defendant had the ability to pay them, we will vacate the crime prevention
fine, main jail booking fee and main jail classification fee and remand the matter to the
trial court for a determination of defendant’s ability to pay.
                                       DISPOSITION
       The order requiring defendant to pay a $10 crime prevention fine (§ 1202.5),
$382.22 main jail booking fee (Gov. Code, § 29550.2), and $61.75 main jail

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classification fee (Gov. Code, § 29550.2) is vacated and the matter is remanded to the
trial court to determine defendant’s ability to pay. In all other respects, the judgment is
affirmed.


                                                       /S/
                                                  Mauro, J.



We concur:



     /S/
Robie, Acting P. J.



     /S/
Murray, J.




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