Filed 3/25/15 P. v. Hurst CA4/1
                            NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                          COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                 STATE OF CALIFORNIA



 THE PEOPLE,                                                         D065352

          Plaintiff and Respondent,

          v.                                                         (Super. Ct. No. SCS266869)

 PATRICK DORIAN HURST,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of San Diego County, Alvin E.

 Green, Jr., Judge. Affirmed as modified and remanded with directions.

          Coughlan, Semmer, Fitch & Pott and Earll M. Pott; David K. Rankin, under

 appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

 Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and

 Respondent.
       A jury convicted Patrick Dorian Hurst of importation of a controlled substance.

(Health & Saf. Code, § 11379, subd. (a).) The court sentenced him to four years in state

prison and imposed different fines and fees, including a $615 drug program fee (Health

& Saf. Code, § 11372.7, subd. (a)) and a $154 criminal justice administration fee

(booking fee; Gov. Code, § 29550 et seq.)

       Hurst contends: (1) the court violated his constitutional right to due process by

failing to make a finding regarding his ability to pay the booking fee and drug program

fee, or to ensure the booking fee did not exceed actual administrative costs incurred; (2)

his counsel provided ineffective assistance by failing to object to imposition of the fees

without the statutorily required factual findings; and (3) the court erroneously calculated

his actual custody credits. We find merit in the last contention only, and modify his

custody credits. As so modified, we affirm the judgment and remand with directions.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Hurst was convicted based on testimony that he tried to cross the border from

Mexico to the United States carrying 861.4 grams of methamphetamine.

       At sentencing, the court followed the probation department's recommendation and

ordered Hurst to pay the booking fee and a drug program fee. Hurst did not object to the

fees in his sentencing brief or at the sentencing hearing. The court awarded Hurst 131

actual days and 130 conduct credits under Penal Code section 4019, for a total of 261

days of presentence credit.




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                                            DISCUSSION

                                                   I.

                                           A. Booking Fee

       Hurst contends that the trial court's failure to find he was able to pay the booking

fee was a violation of his procedural due process rights. He further contends that the

error was prejudicial and reversible because the record does not contain substantial

evidence that he had the means to pay the $154 booking fee.

       Hurst relies on Penal Code section 987.8, subdivision (g),1 which outlines criteria

for a court to make an ability to pay determination. He also attempts to distinguish this

case from People v. McCullough (2013) 56 Cal.4th 589 (McCullough), in which the

California Supreme Court held that a defendant forfeits an appellate challenge to the

sufficiency of evidence supporting a jail booking fee imposed under Government Code

section 29550.2, subdivision (a) if the fee is not first challenged in the trial court.

(McCullough, at p. 597.)




1       Penal Code section 987.8, subdivision (g)(2) states that a defendant's ability to pay
refers to his or her overall capability to reimburse the costs of the legal assistance
received, and shall include: "(A) The defendant's present financial position. [¶] (B) The
defendant's reasonably discernible future financial position. In no event shall the court
consider a period of more than six months from the date of the hearing for the purposes
of determining the defendant's reasonably discernible future financial position. Unless
the court finds unusual circumstances, a defendant sentenced to state prison shall be
determined not to have a reasonably discernible future financial ability to reimburse the
costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to
obtain employment within a six-month period from the date of the hearing. [¶] (D) Any
other factor or factors which may bear upon the defendant's financial capability to
reimburse the county for the costs of the legal assistance provided to the defendant."
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       Hurst specifically argues: "McCullough . . . is not dispositive of the instant case.

First, the Supreme Court only considered the insufficiency of the evidence of ability to

pay under Government Code section[ ] 29550.2, subdivision (a), not the statute's further

requirement that the fee not exceed the actual costs [of] a defendant's arrest and booking."

       While this case was pending on appeal, the California Supreme Court decided

People v. Aguilar (2015) 60 Cal.4th 862, which addressed the same issue presented here

of whether appellate forfeiture rules applied in a case where the "defendant contended the

court imposed these [booking] fees without making a finding of his ability to pay (and, in

the case of the booking fee, without evidence in the record of the actual costs of the

governmental services to be reimbursed through such fees) as required by [case law]."

(Aguilar, at p. 865.)

       The Aguilar court summarized the defendant's contention as follows:

"[D]efendant here relies on the specification in . . . [Penal Code section] 987.8 of certain

procedural requirements not contained in the booking fee statutes [citation] in an effort to

distinguish our decision in [McCullough, supra, 56 Cal.4th 589], which held that

challenges to the imposition of booking fees are forfeited unless made at sentencing. . . .

[T]he effort is unavailing." (Aguilar, supra, 60 Cal.4th at pp. 866-867.) In rejecting the

defendant's arguments, the court reasoned that the defendant had an opportunity to object

to the fees "when the court, at sentencing, announced the fees it was imposing, which

largely tracked those recommended in the presentence investigation report"; but the

defendant did not avail himself of the opportunity. (Aguilar, at pp. 867-868.)



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McCullough and Aguilar control this case, and therefore Hurst's appellate claim is

forfeited because he likewise failed to first object to the booking fee in the trial court.

                                          B. Drug Program Fee

       Health and Safety Code section 11372.7 governs the imposition of mandatory drug

program fees. The statute requires a court to consider whether the defendant has an

ability to pay the drug program fee. (Health & Saf. Code, § 11372.7, subd. (b).) If a

court finds the defendant does not have an ability to pay the drug program fee, he or she

will not be required to pay it. (Ibid.)

       For a defendant to challenge a trial court's determination of his or her ability to

pay a fee on appeal, the defendant must raise the issue in the trial court to preserve the

objection on appeal. (McCullough, supra, 56 Cal.4th at p. 597.) To preserve a challenge

to a fee or fine based on ability to pay, a defendant must object in the trial court; failure to

raise the issue waives the right to contest it on appeal. (People v. Crittle (2007) 154

Cal.App.4th 368, 371; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

Where the court's imposition of a fee is based on "factual determinations, a defendant

who fails to challenge the sufficiency of the evidence at the proceeding when the fee is

imposed may not raise the challenge on appeal." (McCullough, at p. 597.)

       Hurst forfeited his objection to the drug program fee by not asserting it at the

sentencing hearing. (McCullough, supra, 56 Cal.4th at p. 597.)

                                                    II.

       Hurst alternatively argues that he received ineffective assistance of counsel. "To

establish ineffective assistance of counsel, a defendant must show (1) counsel's

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performance was deficient and fell below an objective standard of reasonableness and (2)

it is reasonably probable that a more favorable result would have been reached absent the

deficient performance. [Citation.] A reasonable probability is a 'probability sufficient to

undermine confidence in the outcome.' " (People v. Jones (2013) 217 Cal.App.4th 735,

746-747.)

       Hurst must show ineffective assistance by a preponderance of the evidence.

(People v. Powell (2011) 194 Cal.App.4th 1268, 1298.) " 'Failure to object rarely

constitutes constitutionally ineffective legal representation.' " (People v. Gray (2005) 37

Cal.4th 168, 207.) In consideration of a claim of ineffective assistance of counsel, we are

limited to the matters illuminated by the record on appeal. (Ibid.)

       Nothing in the record explains why defense counsel did not object to the

imposition of the booking and drug program fees. We disagree that the only satisfactory

explanation for trial counsel's failure to object and request a hearing on ability to pay is

ineffective assistance. At sentencing, defense counsel requested the court strike

defenant's strike convictions. It is reasonable to conclude that defense counsel was

arguing the point important to his client—a reduced prison stay—and that Hurst was not

concerned with the fees involved here. We also note that the record supports an implied

finding of an ability to pay. "Ability to pay does not necessarily require existing

employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) In

determining whether a defendant has the ability to pay a court is not limited to

considering a defendant's present ability, but may consider a defendant's ability to pay in

the future. This includes the defendant's ability to obtain prison wages and to earn money

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after his release from custody. (Accord, People v. Hennessey (1995) 37 Cal.App.4th

1830, 1837.) Hurst was 23 years old at the time of the hearing, and he had obtained his

GED in 2008. There is no basis in the record for concluding Hurst was unable to work in

prison to pay the fees. We conclude he has not met his burden of establishing ineffective

assistance of counsel.

                                                 III.

       Hurst and the People agree that for purposes of calculating his custody credits, he

was incarcerated in county jail from September 1, 2013, until January 10, 2014, when he

was sentenced; however, they disagree on how many custody credits he was entitled to

receive. We conclude the court should have awarded Hurst credit for 132 days of actual

custody and corresponding conduct credits, and it should do so on remand. (Pen. Code,

§ 4019, subd. (f); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)




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                                        DISPOSITION

      We modify Patrick Dorian Hurst's custody credits to reflect that he is entitled to

132 actual custody days and corresponding conduct credits under Penal Code section

4012. As so modified, the judgment is affirmed. On remand, the trial court is directed to

amend the abstract of judgment in accordance with this opinion and to forward a certified

copy of the amended abstract to the Department of Corrections and Rehabilitation.




                                                                           O'ROURKE, J.

WE CONCUR:


NARES, Acting P. J.


IRION, J.




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