Filed 8/29/13 P. v. Benton CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039277
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. B1263121)

         v.

MICHAEL OSCAR BENTON,

         Defendant and Appellant.



         Defendant Michael Oscar Benton pleaded no contest to making a criminal threat in
violation of Penal Code section 422. He was sentenced to a 16-month prison term. On
appeal, he challenges the imposition of a $129.75 criminal justice administration fee. We
will affirm the judgment.

                                                 BACKGROUND
         As defendant challenges only the imposition of the $129.75 criminal justice
administration fee, we review only the facts pertinent to that issue.
         On November 26, 2012, defendant pleaded no contest to making a criminal threat
in violation of Penal Code section 422. He filled out a written “Advisement Of Rights,
Waiver, And Plea Form,” which provided, “Depending upon my ability to pay, I may . . .
be required to pay . . . a criminal justice administration fee of up to $259.50. . . .”
       The probation officer’s report recommended that “[a] $129.75 Criminal Justice
Administration fee to the City of Sunnyvale be imposed pursuant to Government Code
[sections] 29550, 29550.1 and 29550.2.” The probation report reflected that trial counsel
had instructed the probation officer not to interview defendant, and thus the probation
report does not contain any information about defendant’s employment history,
education, or training.
       At the sentencing hearing on December 20, 2012, the trial court indicated it was
planning to “impose all of the recommended terms as set forth in the probation report.”
After hearing from the victim and defendant, the court imposed a 16-month sentence. It
imposed a number of fees and fines, including “a criminal justice administration fee of
$129.75 to the City of Sunnyvale.”
       Following its announcement of the fees and fines, the trial court asked whether
defendant would “accept the fines and fees imposed and waive a hearing on ability to
pay?” Trial counsel replied, “Yes, Your Honor.”

                                       DISCUSSION
       Defendant challenges the $129.75 criminal justice administration fee imposed at
sentencing, claiming “there is no showing in the record that [he] had the ability to pay it.”
       Although the trial court did not specify the statutory authority for the criminal
justice administration fee, the parties agree that it was imposed pursuant to Government
Code section 29550.1.1 Section 29550.1 provides: “Any city . . . whose officer or agent
arrests a person is entitled to recover any criminal justice administration fee imposed by a
county from the arrested person if the person is convicted of any criminal offense related
to the arrest. A judgment of conviction shall contain an order for payment of the amount
of the criminal justice administration fee by the convicted person. . . .”


       1
        All further statutory references are to the Government Code unless stated
otherwise.

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       Defendant acknowledges that section 29550.1 does not expressly require the
trial court find a defendant has the ability to pay the fee before ordering payment. He
claims the equal protection provisions of the state and federal Constitutions require
section 29550.1 to be interpreted as including an ability-to-pay requirement, since
sections 29550 and 29550.2 expressly require a finding that the person has the ability to
pay the criminal justice administration fee when the fee is imposed under certain
circumstances.
       The Attorney General contends that defendant forfeited or waived his claim of
insufficiency of the evidence concerning ability to pay the criminal justice administration
fee. The Attorney General further argues that principles of equal protection do not
require us to interpret section 29550.1 as including an ability-to-pay provision.
       Assuming, without deciding, that equal protection principles require
section 29550.1 to be interpreted as including an ability-to-pay requirement, we
determine that defendant waived his challenge to the criminal justice administration fee.
As noted above, at the sentencing hearing, the trial court asked whether defendant would
“accept the fines and fees imposed and waive a hearing on ability to pay?” Trial counsel
replied, “Yes, Your Honor.” Thus, defendant did not merely fail to object to imposition
of the fee without a finding of his ability to pay; he affirmatively waived any right to that
determination. (See In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 1 [“ ‘forfeiture’ ”
refers to a failure to object or to invoke a right, whereas “ ‘waiver’ ” conveys an express
relinquishment of a right or privilege]; cf. People v. McCullough (2013) 56 Cal.4th 589,
597-599 [by failing to object below, a defendant forfeits an appellate claim that he or she
lacks the ability to pay a criminal justice administration fee imposed pursuant to
section 29550.2].)




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                                  DISPOSITION
     The judgment is affirmed.


                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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