Filed 8/28/13; pub order 9/19/13 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                              DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                         A135516
v.
OCTAVIO AGUILAR,                                         (Contra Costa County
                                                         Super. Ct. No. 51202696)
         Defendant and Appellant.


         Octavio Aguilar appeals from a judgment entered following a felony domestic
violence conviction. He does not challenge that conviction on appeal, but instead he
contends the trial court imposed various fees, including attorney fees, without making the
requisite finding of ability to pay. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
         Appellant was charged with inflicting corporal injury (Pen. Code, § 273.5,
subd. (a))1 on Erika T., a woman who had lived with appellant for 14 years and was the
mother of his child. The information further alleged a prior conviction for battery (§ 243)
within seven years of the charged offense. (§ 273.5, subd. (e).)
         A jury found appellant guilty of inflicting corporal injury on Erika T. Separately,
the trial court found true the prior battery conviction allegation. The court, after
declining to reduce the conviction to a misdemeanor, placed petitioner on probation on
the condition that he serve 300 days in county jail. The court imposed, inter alia, the


1
    All further statutory references are to the Penal Code unless otherwise noted.

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following fees: (1) Attorney fees of $500 (§ 987.8, subd. (b)); (2) a probation supervision
fee not to exceed $75 per month (§ 1203.1b, subd. (a)); and, (3) a “Criminal Assessment
fee” of $564. There appears to be no dispute the last item was the “criminal justice
administration” fee found in the Government Code. (See Gov. Code, §§ 29550-29550.3.)
        The trial court noted that appellant might not be required to pay the full amount of
these fees and costs. The court stated: “Many of these fees are going to be based on his
ability to pay. When he contacts the probation office, he’ll fill out [a] fiscal financial
assessment form and he can talk with the probation deputy about his ability to pay these
various fees.” (See e.g., § 987.8, subd. (b) [court may order defendant to appear before a
county officer to make an inquiry into the ability of the defendant to pay all or a portion
of legal assistance provided].)
        Appellant did not object to any of the fees or to the court’s statement regarding the
probation department’s involvement in determining ability to pay.
                                     II. DISCUSSION
        Appellant contends the trial court’s order to pay attorney fees, the probation
supervision fee, and the criminal justice administration fee must be reversed because the
trial court made no finding of his ability to pay those fees and costs. Each of the
pertinent statutes condition imposition of those fees on a finding of ability to pay.
Appellant further contends there is no evidence in the record supporting the amount of
probation supervision fee and the criminal justice administration fee, which are both
limited to the actual costs thereof. (See § 1203.1b, subd. (a) [reasonable cost of probation
services and supervision shall not exceed actual average cost thereof]; Gov. Code,
§ 29550, subd. (a) [fee imposed by county shall not exceed actual administrative costs].)
For both contentions appellant relies on People v. Pacheco (2010) 187 Cal.App.4th 1392,
1399.
        Our Supreme Court recently decided People v. McCullough (2013) 56 Cal.4th 589
(McCullough), in which it held a defendant who failed to contest a booking fee in the trial




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court forfeited the right to challenge the fee on appeal.2 (Id. at p. 591.) “[W]e hold here
that because a court’s imposition of a booking fee is confined to 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.” (Id. at p. 597.) The Supreme
Court expressly disapproved People v. Pacheco, supra, 187 Cal.App.4th 1392, to the
extent it held a defendant could challenge, for the first time on appeal, the sufficiency of
the evidence supporting a finding of ability to pay a booking fee. (McCullough, supra,
56 Cal.4th at p. 599.)
       The booking fee at issue in McCullough appears to be the same fee the trial court
here called a criminal assessment fee. (See McCullough, supra, 56 Cal.4th at p. 590-591
[referring to the criminal justice administration fee found in § 29550.2, subd. (a), as a
booking fee].) Petitioner concedes in his supplemental brief that the assessment fee “falls
within the ambit of McCullough.” The reasoning of McCullough, however, applies to all
the fees appellant claims were imposed without a finding of ability to pay.3 In fact even
before McCullough, the decision in Pacheco was an outlier, with most courts requiring an
objection to preserve fine and fee issues for appeal. (See e.g., People v. Nelson (2011) 51
Cal.4th 198, 227 [defendant forfeited his challenge to victim restitution fine by failing to
object at his sentencing hearing]; People v. Crittle (2007) 154 Cal.App.4th 368, 371
[defendant who did not raise issue of ability to pay crime prevention fee in trial court
cannot raise issue on appeal]; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072
[failure to object in trial court to statutory error in the imposition of a probation fee under
section 1203.1b waives the matter for purposes of appeal]; People v. Hodges (1999) 70
Cal.App.4th 1348, 1357 [appellate review of booking fee waived for failure to raise issue
at time of sentencing]; see also People v. Martinez (1998) 65 Cal.App.4th 1511, 1518


2
 The Supreme Court issued its decision after the parties filed their opening briefs. We
solicited and received supplemental briefing from the parties discussing the effect of
McCullough on the issues raised in this appeal.
3
  That includes $10 per month for costs of alcohol testing that petitioner, for the first time
in his supplemental brief, adds to his list of contested fees.

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[any error by trial judge in failing to state reasons for not imposing drug program fee
waived by the prosecution].)
       Appellant tries to distinguish attorney fees and the probation fee from the booking
fee. He even argues McCullough supports his contention that an objection is not required
to challenge the ability to pay those fees on appeal. He relies on the fact that the relevant
statutes (§§ 987.8; 1203.1b) allow the trial court to delegate the ability to pay
determination to the probation department, subject to certain procedural requirements,
guidelines, and court review of the probation department’s recommendations. In
McCullough, the Supreme Court contrasted the booking fee statutes with statutes that
provide procedural guidelines (including §§ 987.8 and 1203.1b). (See McCullough,
supra, 56 Cal.4th at p. 598-599.) The opinion states: “We note these statutes because
they indicate that the Legislature considers the financial burden of the booking fee to be
de minimis and has interposed no procedural safeguards or guidelines for its imposition.
In this context, the rationale for forfeiture is particularly strong.” (Id. at p. 599.)
       We disagree with appellant’s characterization of this part of the McCullough
decision. The Supreme Court, in discussing statutes with procedural safeguards or
guidelines, was merely providing an additional reason why an objection to the ability to
pay a booking fee was required. The Supreme Court was not implying only a booking
fee required an objection. As to other fees and costs, the rationale for forfeiture is still
strong, just not “particularly strong” as in the case of the booking fee.
       Appellant nevertheless suggests he was not advised of, and did not waive, his due
process hearing rights with respect to the probation supervision fees. People v. Valtakis,
supra, 105 Cal.App.4th 1066, however, held a defendant’s failure to object at sentencing
to noncompliance with the probation fee procedures of section 1203.1b waives any claim
of error on appeal. (Id. at p. 1068.) Further, any claim by appellant that the probation
department failed to follow the procedures set forth in section 1203.1b would rely on
facts outside the record on appeal, making habeas corpus or some other post-conviction
proceeding the proper way to raise the issue.



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       Finally, appellant’s challenge to the amount of the criminal justice administration
fee and the probation supervision fee is similarly waived. Calculating the actual
administrative costs of processing arrestees or supervising probationers is above all a
factual determination.4 Appellant himself states in his reply brief that the determination
involves “disputable issues of fact.” Thus when, as here, the trial court has imposed two
routine fees in an amount that is not plainly excessive, the defendant must make an
objection. Fairness demands an objection in order to allow the prosecution to marshal the
facts to support the calculation of the fees.
                                    III. DISPOSITION
       The judgment is affirmed.




                                                    _________________________
                                                    REARDON, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
HUMES, J.




4
  The Attorney General states the criminal justice assessment fee in this case was
determined by the county board of supervisors based on information provided by the
county administrator’s office. The Attorney General refers this court to certain on-line
county records and makes a request for judicial notice. Given our conclusion that
petitioner forfeited any challenge to the amount of the fees, the request for judicial notice
is denied as moot.

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Filed 9/19/13
                         CALIFORNIA COURT OF APPEAL
                          FIRST APPELLATE DISTRICT
                                DIVISION FOUR



PEOPLE
v.
OCTAVIO AGUILAR

A135516
Contra Costa County
Sup. Ct. No. 51202696

BY THE COURT:

       Respondent’s request that this court’s August 28, 2013 opinion be certified for
publication is granted. The Reporter of Decisions is directed to publish said opinion in
the Official Reports.



Date: September 19, 2013                                Reardon, Acting P. J.




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Trial Court:                Contra Costa County Superior Court



Trial Judge:                Hon. Thomas M. Maddock



Counsel for Appellant:      Kieran D. C. Manjarrez

                            First District Appellate Project



Counsel for Respondent:     Kamala D. Harris
                            Attorney General
                            Catherine A. Rivlin
                            Office of the Attorney General




People v. Aguilar A135516




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