Filed 3/7/16 P. v. Ayala CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061947

v.                                                                       (Super.Ct.Nos. RIF1201379 and
                                                                          RIF1409704)
BENJAMIN AYALA,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.

Affirmed in part; reversed in part with directions.

         Helen S. Irza, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen

Chenelia, Parag Agrawal and Kristen A. Hernandez, Deputy Attorneys General, for

Plaintiff and Respondent.



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                                      INTRODUCTION

       Defendant Benjamin Ayala appeals following his plea of guilty to possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and transportation of

methamphetamine for sale (Health & Saf. Code, § 11379, subd (a)), and his admission of

associated prior allegations (Health & Saf. Code, § 11370.2, subd. (c), Pen. Code,

§ 667.5, subd. (b)).

       Defendant contends the booking fee imposed must be stricken because the trial

court did not orally pronounce it at sentencing. He further asserts that a condition of his

mandatory supervision limiting him to a residence approved by the probation officer

violates his constitutional rights to travel and free association. In his reply brief,

defendant asserts for the first time that the booking fee violated constitutional equal

protection principles, in that defendants who are criminally convicted are similarly

situated with regard to booking fees regardless of whether they were arrested by a city,

county, or other law enforcement agency.

       We reverse the order imposing the booking fee, and we remand for further

proceedings on the issue. We find no other error and, in all other respects, we affirm the

judgment.

                       FACTS AND PROCEDURAL BACKGROUND

       On March 16, 2012, in case No. RIF1201379, defendant pled guilty to possession

of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted four prison

priors (Pen. Code, § 667.5, subd. (b)). The trial court advised defendant that his exposure

would be eight years in state prison; however, the court suspended criminal proceedings,


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granted formal probation for 36 months, and accepted defendant into a substance abuse

program under Proposition 36.

       On July 23, 2014, a complaint and petition to revoke probation pursuant to Penal

Code section 1203.2, subdivision (b) was filed in case No. RIF1201379. Defendant was

charged with one count of possession of methamphetamine (Health & Saf. Code,

§ 11377, subd. (a)), and six prior prison term allegations (Pen. Code, § 667.5, subd. (b)).

       On the same date, a second complaint and petition to revoke probation was filed in

case No. RIF1409704. Defendant was charged with one count of possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and six prior prison term

allegations (Pen. Code, § 667.5, subd. (b)).

       On July 24, 2014, in case No. RIF1409704, defendant pled guilty to the amended

charge of transporting methamphetamine for sale (Health & Saf. Code, § 11379,

subd (a)), and admitted a prior conviction (Health & Saf. Code, §§ 11379.6, 11370.2,

subd. (c)). He also admitted that his offense was a violation of probation in case

No. RIF1201379.

       That same date, in case No. RIF1409704, defendant was sentenced to six years in

county jail pursuant to Penal Code section 1170, subdivision (h), with two years

suspended and two years of mandatory supervision. In case No. RIF1201379, defendant

was sentenced to 16 months in county jail to be served concurrently to case

No. RIF1409704.

       Additional facts are set forth in the discussion of the issues to which they pertain.




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                                       DISCUSSION

       Booking Fee

       Defendant contends the booking fee in case No. RIF1409704 must be stricken

because the trial court did not orally pronounce it at sentencing. In his reply brief,

defendant asserts for the first time that the booking fee violated constitutional equal

protection principles.

              Additional Background

       In case No. RIF1409704, defendant signed a sentencing memorandum that

reflected the imposition to “[p]ay booking fees of $434.08 (GC § 29550).” The

sentencing memorandum stated, “THE FOLLOWING CHECKED TERMS AND

CONDITIONS ARE ORDERED BY THE COURT.” In signing the sentencing

memorandum, defendant acknowledged, “I have read, I understand, and I accept these

terms and conditions of mandatory supervision on pages one and two.”

       Defendant initialed the statement on his plea form, under the heading,

“CONSEQUENCES OF PLEA,” which stated that he would be ordered to pay a

restitution fine and that “[t]here are several other fines and fees that will be imposed as a

result of this guilty plea.” The trial court did not pronounce or refer to any fee at the

sentencing hearing, but it did impose a prison term in the county jail to be followed by

“two years of mandatory supervision on the terms indicated.” The minute order in case

No. RIF1409704 of the sentencing hearing provides that defendant must “[p]ay booking

fees of $434.08 (GC 29550).”




                                                 4
              Analysis

       Defendant argues that the fee award must be stricken because the trial court did

not orally pronounce it at the hearing, and “[i]t is unlawful for the clerk to include fines

on a sentencing order that were not expressly orally imposed by the judge. (People v.

Zackery (2007) 147 Cal.App.4th 380, 387-389.)” However, failure to impose a

mandatory fee results in an unauthorized sentence that may be corrected on appeal.

(See People v. Voit (2011) 200 Cal.App.4th 1353, 1373.) Defendant concedes the court

has the authority to add mandatory fees, but contends the record does not show that the

fee at issue here was mandatory.

       “Three statutes address defendants’ payment of jail booking fees, Government

Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant

depends on which governmental entity has arrested a defendant before transporting him

or her to a county jail. The factors a court considers in determining whether to order the

fee payment also vary depending on whether or not the court sentences the defendant to

probation or prison. (See Gov. Code, §§ 29550, subd. (d)(1) & (2), 29550.1, 29550.2,

subd. (a).)” (People v. McCullough (2013) 56 Cal.4th 589, 592.) Defendant did not

receive probation; rather, he was sentenced to a term of imprisonment in county jail and

to a term of mandatory supervision under Penal Code section 1170, subdivision (h).

A mandatory booking fee under Government Code sections 29550.1 and 29550,

subdivision (d)(2), therefore does not apply.




                                                 5
       The People note that the complaints and petitions to revoke probation in both

cases indicate “AGENCY#: P14110678/RPD.” Based on those notations, the People

assert that the arresting agency was the Riverside Police Department, and a booking fee

was therefore mandatory under Government Code sections 29550.1 or 29550,

subdivision (c).

       Defendant argues that this court is not authorized to interpret the letters “RPD” as

standing for the Riverside Police Department. We agree. The selection of the applicable

statute is “a fact-specific determination.” (People v. McCullough, supra, 56 Cal.4th at

p. 592.) In the absence of some evidence of what those letters signify, we are hard-

pressed to ascertain what agency performed the arrest.

       Because the record on appeal does not clearly indicate what agency executed the

arrest and booking of defendant, we cannot know whether a booking fee is mandatory

under Government Code sections 29550.1 or 29550, subdivision (c), or discretionary

under Government Code section 29550, subdivisions (a) and (d)(1). We will therefore

reverse the judgment with respect to the booking fee. On remand, the trial court will

determine what entity arrested defendant and which Government Code sections apply.

              Defendant Has Forfeited His Equal Protection Challenge to the Booking Fee

       As noted, defendant raised his equal protection challenge for the first time in his

reply brief. “Withholding a point until the reply brief deprives the respondent of an

opportunity to answer it . . . . Hence, a point raised for the first time therein is deemed

waived and will not be considered, unless good reason is shown for failure to present it

before. [Citations.]” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.)


                                                 6
Defendant has shown no reason for his failure to timely raise the issue. It is therefore

deemed forfeited. (Ibid.)

       Mandatory Supervision Condition

       Defendant contends that a condition of his mandatory supervision limiting him to

a residence approved by the probation officer violates his constitutional rights to travel

and free association.

              Additional Background

       Among the conditions of defendant’s mandatory supervision were the following:

“Inform the probation officer of your place of residence and reside at residence approved

by the probation officer”; and “[g]ive written notice to the probation officer 24 hours

before changing your residence and do not move without the approval of the probation

officer.”

              Forfeiture

       The People contend that defendant forfeited his objection to the residence

condition because he did not raise any objection in the trial court.

       As a general rule, a defendant must object at sentencing to the reasonableness of a

probation condition before he may challenge the condition on appeal. However, an

exception applies when the condition is challenged as unauthorized or in excess of the

court’s jurisdiction, and the issue involves a pure question of law that can be resolved

without reference to the trial court record. (People v. Welch (1993) 5 Cal.4th 228, 235.)

We will address the issue on the merits because it is easily resolved.




                                                 7
              Analysis

       Preliminarily, we note that the issue of the validity of a residence-approval

probation condition is pending in the California Supreme Court. (People v. Schaeffer

(2012) 208 Cal.App.4th 1, review granted Oct. 31, 2012, S205260 [Fourth Dist.,

Div. Two].)

       Mandatory supervision operates like probation and includes the imposition of

probation- and parole-like conditions. (§ 1170, subd. (h); People v. Martinez (2014) 226

Cal.App.4th 759, 763-764 [Fourth Dist., Div. Two].) “Trial courts have broad discretion

to set conditions of probation in order to ‘foster rehabilitation and to protect public safety

pursuant to Penal Code section 1203.1.’ [Citations.] If it serves these dual purposes, a

probation condition may impinge upon a constitutional right otherwise enjoyed by the

probationer, who is ‘not entitled to the same degree of constitutional protection as other

citizens.’ [Citation.] [¶] However, the trial court’s discretion in setting the conditions of

probation is not unbounded. A term of probation is invalid if it: ‘“(1) has no relationship

to the crime of which the offender was convicted, (2) relates to conduct which is not in

itself criminal, and (3) requires or forbids conduct which is not reasonably related to

future criminality.”’” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)

       “If a probation condition serves to rehabilitate and protect public safety, the

condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer,

who is “not entitled to the same degree of constitutional protection as other citizens.”’

[Citation.]” (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) “[W]here an

otherwise valid condition of probation impinges on constitutional rights, such conditions


                                                 8
must be carefully tailored, ‘“reasonably related to the compelling state interest in

reformation and rehabilitation . . . .”’ [Citations.]” (People v. Bauer (1989) 211

Cal.App.3d 937, 942 (Bauer).)

       In Bauer, upon which defendant relies, the court struck a residence-approval

condition, which seemed designed to prevent the defendant from living with his parents

because they were overprotective. Nothing in the record suggested that the defendant’s

home life contributed to the crimes of which he was convicted (false imprisonment and

simple assault), or that his home life was reasonably related to future criminality. (Bauer,

supra, 211 Cal.App.3d at p. 944.) The court concluded that the residence approval

condition impinged on the right to travel and freedom of association, and it was

extremely broad since it gave the probation officer the power to forbid the defendant

from living with or near his parents. (Ibid.)

       The present case is distinguishable from Bauer. Defendant pled guilty to

possessing methamphetamine and transporting methamphetamine for sale. Further, he

admitted prior drug convictions and that the offenses violated his probation. Defendant

had an extensive history of prior drug-related convictions, including possession and

transportation of controlled substances. Under these circumstances, where he lives may

directly affect his rehabilitation. For example, without any limitations, he could choose

to live in a residence where drugs are used or sold. Thus, the state’s interest in

defendant’s rehabilitation is properly served by the residence-approval condition.

Moreover, probation conditions “should be given ‘the meaning that would appear to a

reasonable, objective reader.’” (People v. Olguin (2008) 45 Cal.4th 375, 382.) We


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presume a probation officer will not withhold approval of a residence for an irrational or

capricious reason. (Id. at p. 383.)

       We conclude that the trial court did not abuse its discretion in imposing the

conditions that defendant, as a term of his mandatory supervision, reside at a residence

approved by the probation officer and not move without the officer’s prior approval.

                                      DISPOSITION

       The booking fee imposed in case No. RIF1409704 is reversed, and the superior

court is directed to determine whether and in what amount to impose a booking fee.

       In all other respects, the judgments are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                             J.
We concur:



HOLLENHORST
          Acting P. J.



CODRINGTON
                           J.




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