Filed 12/12/13 P. v. Volanti 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E056896

V.                                                                       (Super.Ct.No. RIF1203153)

ETIENNE PAUL VOLANTI,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed with directions.

         Gregory Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu E.

Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Etienne Volanti is serving eight years in prison after pleading guilty to

stalking as a second strike. He challenges the $450.34 booking fee imposed at sentencing

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under Government Code section 29950, subdivisions (c) and (d). Defendant argues the

statute authorizing the trial court to impose the fee without considering his ability to pay

violates his right to Equal Protection, because it treats convicted persons sentenced to

imprisonment differently from those granted probation. As discussed below, we affirm

the judgment but order the abstract of judgment modified to reflect the booking fee

actually imposed by the court.

                                  FACTS AND PROCEDURE

       From April 19, 2012, through April 28, 2012, defendant unlawfully followed and

harassed Jane Doe and made a credible threat with the intent to place her in reasonable

fear of her or her family’s immediate safety. At the time, there was a criminal protective

order prohibiting defendant from engaging in such conduct.

       On June 22, 2012, the People filed a felony complaint charging defendant with

stalking after having been previously convicted of making criminal threats under Penal

Code1 section 422 (§ 646.9, subd. (c)(1)). The People also alleged defendant had served

a prior prison term under section 667.5, subdivision (b), and had two prior strike

convictions (§§ 667, subds. (c) & (e)(2)(a), and 1170.12, subd. (c)(2)(a).

       On July 19, 2012, defendant pled guilty to the stalking charge and admitted one of

the strike allegations. As agreed, the trial court sentenced defendant to the upper term of

four years, doubled to eight years for the strike prior. This appeal followed.




       1   All section references are to the Penal Code unless otherwise indicated.

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                                          DISCUSSION

       Defendant argues the trial court violated his right to equal protection when it

imposed the $450.34 booking fee.

       Government Code section 29550, subdivision (c), allows each county to recover

an administrative fee (“booking fee”) from each person convicted of a criminal offense

when the conviction is a result of a county officer or agent having arrested that person.

When the convicted person is granted probation, the court must assess the person’s ability

to pay the booking fee. (Gov. Code, § 29550, subd. (d)(2).) However, when the

convicted person is sentenced to imprisonment, the statute does not require the court to

assess the convicted person’s ability to pay. (Gov. Code, § 29550, subd.(d)(1).)

Defendant argues that persons sentenced to imprisonment and those granted probation are

similarly situated with respect to their ability to pay a booking fee, and thus this different

treatment by the legislature violates the equal protection rights of convicted persons, such

as defendant, who are sentenced to imprisonment and are ordered to pay a booking fee

without regard to their ability to pay.

       The People argue that defendant forfeited any objection to the booking fee by

failing to object in the lower court. For the reasons set forth below, we address the merits

of the booking fee challenge but affirm its imposition.

       In People v. McCullough (2013) 56 Cal.4th 589 (McCullough), our Supreme Court

recently held that a defendant who does not object to booking fees imposed under

Government Code section 29550.2 at the time they are imposed forfeits the right to

challenge the fees on appeal, even where the appeal is based on insufficiency of the

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evidence. (McCullough, at p. 591.) This is because a trial court’s imposition of this type

of booking fee is based on factual findings of ability to pay, rather than on legal

conclusions. The ability to pay this booking fee does not present a question of law, but

one of fact and formulating the claim as one of deficiency of the record does not

transform the claim to one of legal error. (McCullough, at p. 597) However, because

here, under subdivision (d)(1) of Government Code section 29550, the trial court was not

required to determine the defendant’s ability to pay, and because his argument regarding

Equal Protection is one of law rather than fact, the waiver rule set forth in McCullough

does not necessarily apply.

       Therefore, we consider the merits of defendant’s Equal Protection challenge to

imposition of the $450.34 booking fee.

       As stated above, defendant argues that persons sentenced to imprisonment and

those granted probation are similarly situated with respect to their ability to pay a

booking fee, and thus this different treatment by the Legislature violates the equal

protection rights of convicted persons, such as defendant, who are sentenced to

imprisonment and are ordered to pay a booking fee without regard to their ability to pay.

       The constitutional guarantee of equal protection of the laws under the federal and

state Constitutions “‘compels recognition of the proposition that persons similarly

situated with respect to the legitimate purpose of the law receive like treatment.’

[Citation.]” (In re Gary W. (1971) 5 Cal.3d 296, 303, superseded by statute on another

point as stated in People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 990.)

However, as the People point out, convicted persons sentenced to imprisonment and

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those granted probation are not similarly situated with regard to their ability to reimburse

public agencies for their booking costs. Prisoners earn money while incarcerated at a rate

predetermined by state regulation. (See § 2700.) Their ability to pay booking fees is

fixed and definite, whereas convicted persons who are granted probation have a variable

ability to pay booking fees based on their individual incomes and circumstances. Thus,

these two classes of persons are not similarly situation for the purpose of paying booking

fees.

        We agree with the defendant and the People that the abstract of judgment must be

corrected to show that the booking fee actually imposed by the trial court is $450.34,

rather than $490.00 as shown in the minute order. Because the court’s oral

pronouncement of the $450.34 booking fee was the rendition of judgment, it controls.

(People v. Mitchell (2001) 26 Cal.4th 181, 185.)

                                           DISPOSITION

        The judgment is affirmed. The trial court is directed to prepare an amended

abstract of judgment and minute order and forward certified copies to the Department of

Corrections and Rehabilitation.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                         P. J.
We concur:

HOLLENHORST
                          J.

CODRINGTON
                          J.

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