Filed 1/22/14 P. v. Hernandez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038996
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1109338)

             v.

ADRIAN DANIEL HERNANDEZ,

         Defendant and Appellant.



         While he was on probation for burglary of a dwelling, the defendant stole a cell
phone from Seema Chicherur. He was charged with second degree robbery for taking the
cell phone as well as false imprisonment. In addition he was charged with having prior
serious felony convictions. He committed these offenses while on probation. After a
rather lengthy presentation concerning defendant’s mental disabilities the court, in
accordance with a plea agreement allowed him to enter a plea of no contest to second
degree robbery. He also admitted the strike prior. The false imprisonment count was
dismissed and the court sentenced him to four years in prison.
         His appeal here urges us to reverse the trial court because it ordered him to pay a
booking fee of $129.75 to the City of San Jose, this pursuant to Government Code
sections 29550, 29550.1 and 29550.2.
         In aid of his argument, he claims, as a matter of fact, that the trial court failed to
assess his ability to pay the $129.75 booking fee and failed to determine what the actual
administrative costs for the booking was. He supports his argument citing People v.
Pacheo (2010) 187 Cal.App.4th 1392, 1399 (Pacheco), disapproved in People v.
McCullough (2013) 56 Cal.4th 589, 598 (McCullough), as well as Government Code
section 29550, subdivision (a) which provides that the fee “shall not exceed the actual
administrative costs” of booking. The Attorney General answers that the argument is
forfeited because he failed to object at the time of the fee imposition.
       It is true that our case of Pacheco, supra, 187 Cal.App.4th 1392 held that claims
based on insufficiency of the evidence to support an order for probation related costs do
not need to be raised in the trial court to preserve the issue on appeal. Another case,
People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072, held that a claim of
insufficient evidence to support a fee was forfeited on appeal if not objected to.
       During the pendency of this appeal, the California Supreme court ruled that “a
defendant who does nothing to put at issue the propriety of imposition of a booking fee
forfeits the right to challenge the sufficiency of the evidence to support imposition of the
booking fee on appeal, in the same way that a defendant who goes to trial forfeits [a]
challenge to the propriety of venue by not timely challenging it.” (McCullough, supra,
56 Cal.4th at p. 598.) The McCullough court held 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.) We are bound by this determination. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       The McCullough court distinguished “between an alleged factual error that had
necessarily not been addressed below or developed in the record because the defendant
failed to object, and a claimed legal error, which ‘can be resolved without reference to the
particular sentencing record developed in the trial court.’ ” (McCullough, supra, 56
Cal.4th 589, 594.) The Supreme Court observed “we may review an asserted legal error
in sentencing for the first time on appeal where we would not review an asserted factual
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error.” (Ibid.) “In the case of an asserted legal error, ‘[a]ppellate courts are willing to
intervene in the first instance because such error is “clear and correctable” independent of
any factual issues presented by the record at sentencing.’ ” (Ibid.)
       Defendant’s challenge to the booking fee raises the initial question of whether
equal protection principles require Government Code section 29550.1 to be interpreted as
including an ability-to-pay requirement. The forfeiture doctrine has been applied to
unpreserved equal protection claims. (See, e.g., People v. Alexander (2010) 49 Cal.4th
846, 880, fn. 14.) As the McCullough court observed, “ ‘ “ ‘a constitutional right’ or a
right of any other sort, ‘ may be forfeited in criminal as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdiction to determine
it.’ ” ’ [Citation.] ‘Ordinarily, a criminal defendant who does not challenge an assertedly
erroneous ruling of the trial court in that court has forfeited his or her right to raise the
claim on appeal.’ [Citation.] ‘ “The purpose of this rule is to encourage parties to bring
errors to the attention of the trial court, so that they may be corrected. [Citation.]” ’
[Citation.] Additionally, ‘[i]t is both unfair and inefficient to permit a claim of error on
appeal that, if timely brought to the attention of the trial court, could have been easily
corrected or avoided.’ [Citation.]” (McCullough, supra, 56 Cal.4th at p. 593.)
                                         DISPOSITION
       We affirm the order of the trial court.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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