Filed 6/27/14 P. v. Schultz 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H040314
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1352415)

         v.

MICHAEL JOHN SCHULTZ,

         Defendant and Appellant.



                                                I. INTRODUCTION
         Defendant Michael John Schultz pleaded no contest to failing to register as a sex
offender (Pen. Code, § 290.015, subd. (a)) and admitted that he had served three prior
prison terms (id., § 667.5, subd. (b)). The trial court sentenced defendant to prison for
16 months.
         On appeal, defendant contends that the trial court failed to determine his ability to
pay a criminal justice administration fee of $259.50 and therefore the matter must be
remanded.
         For reasons we will explain, we will reverse and remand the matter for a
determination of defendant’s ability to pay the fee.
                  II. FACTUAL AND PROCEDURAL BACKGROUND
       In August 2013, defendant was charged by information with failing to register as a
sex offender (Pen. Code, § 290.015, subd. (a)). The information further alleged that he
had a prior strike (id., §§ 667, subds. (b)-(i), 1170.12), and that he had served three prior
prison terms (id., § 667.5, subd. (b)).
       In September 2013, on motion of the prosecution, the trial court dismissed the
prior strike allegation. Defendant pleaded no contest to the registration offense and
admitted the remaining allegations, with the understanding that he would receive
16 months in state prison.
       In a waived referral memorandum, the probation department recommended,
among other things, the imposition of a $259.50 criminal justice administration fee to the
county pursuant to Government Code sections 29550, 29550.1, and 29550.2.1
       The sentencing hearing was held in October 2013. At the hearing, defense counsel
objected to the imposition of the criminal justice administration fee. Defense counsel
cited People v. McCullough (2013) 56 Cal.4th 589 (McCullough) and argued that the fee
could be imposed “only if there’s a finding that he has an ability to pay. Once defense
counsel has raised that objection, it actually is on the People to present evidence that he
has the ability to pay.” In response, the prosecutor stated, “I’ll just submit it, Your
Honor.” The trial court stated: “I’m going to go ahead and impose it. If there’s no
ability to pay, that can be worked out with the Department of Revenue based upon that
case. Take that to them.” The court subsequently sentenced defendant to 16 months in
prison and granted 481 days of custody credits. The punishment for the prison priors was
stricken. The court ordered defendant to pay various amounts, including the “$259.50




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


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criminal justice administration fee . . . pursuant to Government [Code] Sections 29550
and 29550.1 and 29550.2.”
                                    III. DISCUSSION
       Defendant contends that the trial court failed to determine whether he had the
ability to pay the criminal justice administration fee, and that the matter must be
remanded for such a determination.
       The Attorney General agrees that the matter should be remanded for a
determination of defendant’s ability to pay the fee.
       Government Code sections 29550, 29550.1, and 29550.2 authorize the imposition
of a criminal justice administration fee (also known as a booking fee) on an arrestee who
is ultimately convicted in order to cover the expenses involved in booking or otherwise
processing the arrestee in a county jail. “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.” (McCullough, supra, 56 Cal.4th at p. 592.) In this case, the
record reflects that defendant was arrested by a parole agent. The parties agree that
section 29550.2 applies in this case.
       Section 29550.2 provides that, “[i]f the person has the ability to pay, a judgment of
conviction shall contain an order for payment of the amount of the criminal justice
administration fee by the convicted person . . . .” (Id., subd. (a).) The prosecution has the
burden of proving the defendant’s ability to pay the fee by a preponderance of the
evidence. (McCullough, supra, 56 Cal.4th at p. 598.) Further, a defendant has “the right
to a determination of his ability to pay the booking fee before the court order[s]
payment.” (Id. at pp. 592-593.)
       In this case, the trial court imposed the criminal justice administration fee before
determining whether defendant had the ability to pay it. Remand for a determination of
defendant’s ability to pay is therefore appropriate.



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                                   IV. DISPOSITION
       The judgment is reversed. The matter is remanded for the limited purpose of
determining defendant’s ability to pay a criminal justice administration fee before
reimposing it.




                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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