Supreme Court of California Justia
Citation 56 Cal.4th 589, 298 P.3d 860, 13 Cal. Daily Op. Serv. 3963, 2013 Daily Journal D.A.R. 5163

People v. McCullough


Filed 4/22/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S192513
v.
Ct.App. 3 C064982
ANTOINE J. McCULLOUGH,
Sacramento County
Defendant and Appellant.
Super. Ct. No. 09F08232

Defendant Antoine J. McCullough pleaded no contest to being a convicted felon in
possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admitted a prior prison
term allegation (id., § 667.5, subd. (b)). The court imposed the stipulated state prison
sentence of four years. It also ordered defendant to pay a $270.17 jail booking fee
(booking fee).
Defendant claims the statute authorizing the court to impose a booking fee
required the court to determine if he was able to pay it. (See Gov. Code, § 29550.2, subd.
(a) [―If 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 [booking] fee by the
convicted person . . . .‖].) Defendant contends that he is entitled to challenge this fee
order for sufficiency of the evidence for the first time on appeal.1 We granted review to

1
Defendant additionally asserts that because he did object to imposition of a
restitution fine and the court overruled that objection, objection to imposition of the
booking fee would have been futile and therefore was unnecessary to preserve the issue
for appeal. However, he did not raise this claim in the Court of Appeal. We see no
reason to deviate from our normal policy of declining to consider an issue the Court of
1



determine whether a defendant who failed to object that the evidence was insufficient to
support a finding of his ability to pay a booking fee when the court imposed it has
forfeited his right to challenge the fee on appeal. For the reasons stated below, we
conclude that a defendant who fails to contest the booking fee when the court imposes it
forfeits the right to challenge it on appeal.
I. FACTUAL AND PROCEDURAL HISTORY
Because neither party petitioned for rehearing, we take most of the relevant facts
from the Court of Appeal opinion. (See Cal. Rules of Court, rule 8.500(c)(2).)
Defendant pleaded no contest to being a convicted felon in possession of a firearm (Pen.
Code, § 12021, subd. (a)(1)) and admitted a prior prison term allegation (id., § 667.5,
subd. (b)) in exchange for dismissal of the remaining counts and allegations against him
and for a stipulated state prison sentence of an aggregate term of four years. Through
counsel, defendant requested that the court impose sentence immediately and
consequently waived preparation of a probation report. The court advised defendant of
the rights he was waiving by pleading no contest and informed him of the consequences
of his plea, including that fees would be imposed on him ―related to being processed
through the justice system.‖ Defendant acknowledged the consequences of pleading no
contest and knowingly and intelligently waived the rights he would give up as a result.
The court then imposed a four-year sentence. The court also ordered defendant to pay a
booking fee of $270.17.
The trial court granted defendant‘s request for a certificate of probable cause.
(Pen. Code, § 1237.5.) Defendant‘s appeal included a challenge to the sufficiency of the
evidence to support the $270.17 booking fee, although he had not objected when the
court imposed it. The Court of Appeal affirmed the trial court‘s booking fee order. It

Appeal was not asked to consider. (Cal. Rules of Court, rule 8.500(c)(1); see also
Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 5-7 [articulating
reasons for deciding previously unraised issue in spite of our ordinary policy].)
2



noted that it had ―held on more than one occasion that in order to preserve a challenge to
a fee or fine, a defendant must object in the trial court.‖ It found the cases on which
defendant relied unavailing and followed its earlier cases. Another Court of Appeal has
held that a defendant‘s failure to object to imposition of a booking fee does not forfeit an
appellate challenge ―based on the insufficiency of the evidence to support the order.‖
(People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397.) We granted review to resolve
the conflict.
II. DISCUSSION
Three statutes address defendants‘ payment of jail booking fees, Government
Code sections 29550, 29550.1, and 29550.2. 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. The factors a court considers in determining whether to order the
fee payment also vary depending on whether or not the court sentences the defendant to
probation or prison. (See Gov. Code, §§ 29550, subd. (d)(1) & (2), 29550.1, 29550.2,
subd. (a).)
The trial court did not reference the statutory authority for the booking fee it
imposed. The record of the sentencing hearing here simply indicates the court ordered
defendant to pay a ―main jail booking fee‖ in the amount of $270.17. On appeal below,
defendant ―suggest[ed] that [the fee] was imposed pursuant to Government Code section
29550.2,‖ and the Court of Appeal proceeded under that assumption. We accept for
purposes of review this fact-specific determination of the applicable statute without
deciding the question ourselves. (See Cal. Rules of Court, rule 8.516(b)(3) [―The court
need not decide every issue the parties raise or the court specifies‖]; People v. Partida
(2005) 37 Cal.4th 428, 439; People v. Weiss (1999) 20 Cal.4th 1073, 1076–1077.)
Government Code section 29550.2, subdivision (a), provides that ―If the person
has the ability to pay, a judgment of conviction shall contain an order for payment of‖ the
3

booking fee. Our statutory construction begins with the plain, commonsense meaning of
the words in the statute ― ‗because it is generally the most reliable indicator of legislative
intent and purpose.‘ ‖ (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) ―When the
language of a statute is clear, we need go no further.‖ (People v. Flores (2003) 30 Cal.4th
1059, 1063.) Here, the language is clear, and interpreting it according to its plain
meaning will not ― ‗ ―result in absurd consequences which the Legislature did not
intend.‖ ‘ ‖ (Younger v. Superior Court (1978) 21 Cal.3d 102, 113.) Consequently,
defendant had the right to a determination of his ability to pay the booking fee before the
court ordered payment.
As we have observed on numerous occasions, ― ‗ ―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.‖ ‘ ‖ (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (Sheena K.).) ―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.‖ (Sheena K.,
at p. 880.) ― ‗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.]‘ ‖ (Ibid.)
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.‖ (People v. Vera (1997) 15 Cal.4th 269, 276.)
However, neither forfeiture nor application of the forfeiture rule is automatic.
(See Sheena K., supra, 40 Cal.4th at pp. 881, fn. 2, 882 & fn. 3, 886–887 [noting
exceptions].) Competing concerns may cause an appellate court to conclude that an
objection has not been forfeited. (See People v. Williams (1999) 21 Cal.4th 335, 344
[declining to adopt a forfeiture rule for failure to plead the statute of limitations because it
would run counter to the Legislature‘s intent]; cf. People v. Flores, supra, 30 Cal.4th at p.
1063 [assuming for the purposes of review that remand is the proper remedy when a
4

court orders a defendant to pay attorney fees under Pen. Code, § 987.8, without
substantially complying with procedural safeguards enumerated in that section].) Similar
concerns may also cause an appellate court to refrain from applying the forfeiture bar.
(See In re S.B. (2004) 32 Cal.4th 1287, 1293 [appellate courts have discretion to review
otherwise forfeited challenges — here, whether juvenile court may delegate parent-child
visitation determinations to legal guardian — but it ―should be exercised rarely and only
in cases presenting an important legal issue‖].) Defendant asserts that his challenge
comes within the general rule that ― ‗a judgment . . . not supported by substantial
evidence‘ ‖ may be challenged for the first time on appeal (People v. Butler (2003) 31
Cal.4th 1119, 1126 (Butler)) and that we should therefore review the court‘s order for
substantial evidence to support its determination that he pay the booking fee.
The Attorney General counters that defendant‘s challenge falls within a different
rule, namely, that a defendant forfeits ―claims of sentencing error on appeal‖ when ―he
[does] not object . . . in the trial court below.‖ She argues that to the extent Butler called
into question this general rule regarding sentencing order objections, we ―should
expressly limit [Butler] to its unique facts.‖ She also directs our attention to our ―long-
standing practice of requiring objection by litigants . . . as errors happen rather than
waiting to challenge [the lower court‘s] actions on appeal in the first instance.‖
Our application of the forfeiture bar to sentencing matters is of recent vintage. In
People v. Welch (1993) 5 Cal.4th 228 (Welch), we held the defendant forfeited a
challenge to the reasonableness of a probation condition because she failed to raise it
when sentenced. In People v. Scott (1994) 9 Cal.4th 331, 354 (Scott), we held the
defendant forfeited a claim that the sentence imposed on him, ―though otherwise
permitted by law, [was] imposed in a procedurally or factually flawed manner.‖ Both
cases provided for only prospective application of the rules they announced because
formerly such hearings were ―largely conducted under the assumption‖ that sentencing
error claims, including challenges to probation terms, could ―be raised in the first
5

instance on appeal.‖ (Scott, at p. 337; see Welch, at p. 238 [―existing law
overwhelmingly said no . . . objection‖ to terms of probation ―was required‖ to preserve
the issue for appeal].) Welch and Scott brought the forfeiture rule for alleged sentencing
errors into line with other claims of trial court error, rather than placing such claims
outside the general rules regarding forfeiture: unless a party makes a contemporaneous
objection, he or she generally cannot challenge a court‘s ruling for the first time on
appeal. (Sheena K., supra, 40 Cal.4th at pp. 880-881.)
Scott and Welch also 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.‖ (Welch, supra, 5 Cal.4th at
p. 235.) We observed that we may review an asserted legal error in sentencing for the
first time on appeal where we would not review an asserted factual error. (Scott, supra, 9
Cal.4th at p. 355 [―fact-specific errors . . . are not readily susceptible of correction on
appeal‖].) 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.‖ (Id. at p. 354.)
In the companion cases People v. Stowell (2003) 31 Cal.4th 1107 and People v.
Butler, supra, 31 Cal.4th 1119, we considered whether defendants could appeal
involuntary HIV testing orders that they had not contemporaneously challenged. At the
outset, we observed that although courts had pronounced the orders in question at
sentencing, testing did not represent ―punishment.‖ (Stowell, at p. 1113.) ―[T]he
Legislature enacted [Penal Code] section 1202.1 and related HIV testing statutes as
health and safety measures to combat the spread of AIDS, not to increase criminal
penalties.‖ (Ibid.) Because the imposition of such an order could not ―properly be
considered a sentencing choice‖ subject to ―the analytical template of Scott,‖ we would
6

review a challenge to that order made for the first time on appeal under general forfeiture
principles. (Ibid.)
Though the application of sentencing and general forfeiture rules may differ, their
analytical underpinnings are largely the same. (See Sheena K., 40 Cal.4th at p. 881 [―In
general, the forfeiture rule applies in the context of sentencing as in other areas of
criminal law.‖ (Italics added.)].) In Butler, we held that ―a defendant may challenge the
sufficiency of the evidence‖ to support imposition of an involuntary HIV testing order
―even in the absence of an objection.‖ (Butler, supra, 31 Cal.4th at p. 1123.) Our
analysis flowed from our recent sentencing forfeiture cases; we would review an
appellate challenge not based on a contemporaneous objection if the trial court had been
acting in excess of its authority. ―Just as a defendant could appeal an HIV testing order,
without prior objection, on the ground he had not been convicted of an enumerated
offense [citations], he should be able to do so on the ground the record does not establish
the other prerequisite, probable cause. We perceive no basis for distinguishing between
the two statutory predicates.‖ (Id. at p. 1126, italics added.) ―Without evidentiary
support the order is invalid.‖ (Id. at p. 1123, italics added.)
In Butler, we also confronted the apparent problem that the factual component of a
probable cause finding seemed to place it outside the rule that we will only review for the
first time on appeal ― ‗clear and correctable error‘ ‖ that is ―independent of any factual
issues presented by the record.‖ (Scott, supra, 9 Cal.4th at p. 354.) We concluded that
―[t]he fact that a testing order is in part based on factual findings does not undermine
[the] conclusion‖ (Butler, supra, 31 Cal.4th at p. 1127) that a court lacks authority to
order involuntary HIV testing in the absence of probable cause.
We observed that the issue presented in Butler extended beyond mere
disagreement over the import of certain facts: ―Probable cause is an objective legal
standard — in this case, whether the facts known would lead a person of ordinary care
and prudence to entertain an honest and strong belief that blood, semen, or any other
7

bodily fluid capable of transmitting HIV has been transferred from the defendant to the
victim.‖ (Butler, supra, 31 Cal.4th at p. 1127.) A probable cause determination requires
―applying th[is] particular legal standard to the facts as found.‖ (Ibid.; see Ornelas v.
United States (1996) 517 U.S. 690, 696-697 [in a warrantless search situation,
determinations of reasonable suspicion and probable cause are reviewed de novo — the
4th Amend. does not turn ― ‗on whether different trial judges draw general conclusions
that the facts are sufficient or insufficient to constitute probable cause‘ ‖].)
Butler, however, does not endorse review in the absence of an objection below
merely because an ―objective legal standard‖ may be at issue. As we explained, ―[o]ur
conclusion in this case is controlled not only by the specific terms of [Penal Code]
section 1202.1 but also by the general mandate that involuntary HIV testing is strictly
limited by statute.‖ (Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) For these reasons, we
explained, ―we conclude” the rule permitting challenges to the sufficiency of the
evidence to support a judgment ―should apply to a finding of probable cause pursuant to
[Penal Code] section 1202.1, subdivision (e)(6).‖ (Butler, at p. 1126, italics added.)
Here, by contrast, we find no similar statutory or constitutional concerns.
Parties may generally challenge the sufficiency of the evidence to support a
judgment for the first time on appeal because they ―necessarily objected‖ to the
sufficiency of the evidence by ―contesting [it] at trial.‖ (People v. Gibson (1994) 27
Cal.App.4th 1466, 1469; see People v. Rodriguez (1998) 17 Cal.4th 253, 262 [sufficiency
challenge to prior ―strike‖ allegation not waived]; In re Troy Z. (1992) 3 Cal.4th 1170,
1180-1181 [guilty plea or no contest plea waives challenge to the sufficiency of the
evidence].) Although in Butler we observed that this exception may extend to court
dispositions other than judgments (Butler, supra, 31 Cal.4th at p. 1126), claims subjected
to appellate review have arisen from contested hearings and have almost invariably
involved findings on which judgment of the court was predicated (see id., at p. 1126, fn.
4 [collecting cases]).
8

Defendant asks us simply ―to follow Butler.‖ He asserts that when a trial court
finds sufficient evidence to impose a booking fee, it is finding ―facts in light of an
objective legal standard‖ that we should review as a matter of law in the same manner as
the probable cause finding discussed in Butler. ―[A]s with an HIV testing order that is
based in part on a factual finding (probable cause), an order to pay booking fees also
partial[ly] rests on a factual finding (ability-to-pay); however, both employ an objective
legal standard in assaying the factual finding.‖ Defendant argues that because of these
similarities, coupled with the fact that neither an HIV testing order nor a booking fee is
punishment (see, e.g., People v. Alford (2007) 42 Cal.4th 749, 756-759 [fee not punitive
because of various factors, including whether its purpose was punishment or retribution]),
Butler‘s rule regarding sufficiency of the evidence applies to him. As he explains it, ―the
reasons given . . . in Butler for allowing a claim of insufficient evidence to be made for
the first time on appeal in the context of an HIV testing order, apply equally to the
booking fee.‖
The Attorney General asserts that there is no ―legal standard‖ for ability to pay a
fee comparable to the legal standard for assessing probable cause. Virtually anything in
the record could support the ability to pay a fee — a defendant‘s current age and health,
education, prospects of future earnings, assets, and any other sources of income, as well
as other fines and fees ordered. ―Absent a contemporaneous objection and development
of the record, the wide range of factors that could be considered in determining an ability
to pay do not lend themselves to simple review by [an] appellate court . . . .‖
We conclude that defendant‘s ability to pay the booking fee here does not present
a question of law in the same manner as does a finding of probable cause. Defendant
may not ―transform . . . a factual claim into a legal one by asserting the record‘s
deficiency as a legal error.‖ (People v. Forshay (1995) 39 Cal.App.4th 686, 689-690.)
By ―failing to object on the basis of his [ability] to pay,‖ defendant forfeits both his claim
of factual error and the dependent claim challenging ―the adequacy of the record on that
9

point.‖ (Id. at p. 690; see People v. Martinez (1998) 65 Cal.App.4th 1511, 1517
[analyzing Health & Saf. Code, § 11372.7, subd. (b), and concluding challenge to the
court‘s order forfeited largely because ―factual issues come into play in determining
whether a defendant has the ability to pay‖ the otherwise mandatory drug program fee].)
In Welch, the defendant argued that Penal Code section 1203.1 conditioned the court‘s
order on its ―reasonableness,‖ and that therefore the claim that an order was unreasonable
represented legal error that could not be forfeited because it went to the court‘s authority
to act rather than its discretion to act. We disagreed. Instead, we found the defendant‘s
assertion of error encompassed factual matters only, namely, whether ―the court
exercised its otherwise lawful authority in an erroneous manner under the particular
facts.‖ (Welch, supra, 5 Cal.4th at p. 236; see Scott, supra, 9 Cal.4th at pp. 354-355.)
Similarly, we 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.
Indeed, in People v. Simon (2001) 25 Cal.4th 1082, 1086, we held that ―pursuant
to the general legal doctrine that a party may forfeit a right by failing to assert it in a
timely fashion, a defendant in a felony proceeding forfeits a claim of improper venue
when he or she fails specifically to raise such an objection prior to the commencement of
trial.‖ In Simon, although we agreed with the defendant ―that under [Penal Code] section
1019 a not guilty plea generally puts in issue every material allegation of the accusatory
pleading — including any allegation in the accusatory pleading regarding the alleged
location of the charged offense‖ (Simon, at p. 1105), we held that entry of a not guilty
plea was not in itself ―sufficient to constitute a timely objection to venue,‖ and that a
defendant who fails to make a timely objection ―forfeits the right thereafter to object to
venue‖ (id. at p. 1106). The defendant forfeited this right even though the People bore
the burden of proving proper venue by a preponderance of the evidence. (Id. at p. 1105.)
10

Government Code section 29550.2 places on the People the burden of proving a
defendant‘s ability to pay a booking fee. Because the fee is not ―punishment‖ for
constitutional purposes (see People v. Alford, supra, 42 Cal.4th at pp. 756-759), the
People‘s burden of proof is by preponderance of evidence (see, e.g., In re Jorge G.
(2004) 117 Cal.App.4th 931, 944 [factual predicate for gang registration need only be
proved by preponderance of evidence]; People v. Marchand (2002) 98 Cal.App.4th 1056,
1060-1061 [sex offender registration, same]). But 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 his challenge to the propriety of
venue by not timely challenging it.
Lastly, our review of other statutes where the Legislature has similarly required a
court to determine if a defendant is able to pay a fee before the court may impose it
supports our conclusion. In contrast to the booking fee statutes, many of these other
statutes provide procedural requirements or guidelines for the ability-to-pay
determination. Certain fee payment statutes require defendants to be apprised of their
right to a hearing on ability to pay and afford them other procedural safeguards. (See,
e.g., Pen. Code, §§ 987.8, 1203.1b [payment of cost of probation supervision].)
Additionally, Government Code section 27755 lists extensive ―procedural rights‖ that
must attend ―any hearing required by law to determine a person's ability to pay court-
related costs.‖ (Id., § 27755, subd. (a); see Welf. & Inst. Code, § 903.45, subd. (b)
[listing qualifying court-related costs].) Other fee payment statutes merely identify
factors a court should consider in deciding whether to impose fees. In many of these
instances, the Legislature has articulated a fairly uniform set of factors that affect a
defendant‘s ability to pay the fees in question: the defendant‘s present financial position;
his or her reasonably likely future financial position; and fines and fees already imposed.
(See, e.g., Pen. Code, §§ 1208.2 [work furlough and electronic home detention program
11

participant fees], 3006 [parolee‘s payment of certain treatment costs associated with
parole terms], 646.94 [parolee‘s payment of costs associated with specialized parole
supervision program]; see also Pen. Code, § 987.8, subd. (g)(2)(A)-(D) [articulating
similar factors for courts to consider at a noticed hearing on whether a defendant should
pay all or part of the cost of court-appointed counsel].) Even Health and Safety Code
section 11372.7, which mandates that individuals convicted under the California Uniform
Controlled Substances Act pay a drug program fee ―[i]f the court determines that the
person has the ability to pay,‖ provides more guidance to courts in imposing fees than
does Government Code section 29550.2: a court shall impose a drug program fee if it ―is
reasonable and compatible with the person's financial ability,‖ including the financial
impact of ―any fine imposed upon that person and any amount that person has been
ordered to pay in restitution.‖ (Health & Saf. Code, § 11372.7, subd. (b).)
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. (See, e.g., People v. Williams, supra, 21 Cal.4th at pp. 339, 344
[Legislature‘s intent, manifested by Pen. Code, §§ 801, 803, guides forfeiture
determination].)
Practically speaking, determining a defendant‘s ability to pay a fee is much less
complex than is determining a defendant‘s sentence. In Scott, the defendant contended
that ―a rule requiring a contemporaneous objection‖ was ―unrealistic‖ because counsel
could not reasonably be expected to ―comprehend, remember, and respond to the various
sentencing factors and choices delivered orally by the court at the hearing.‖ (Scott,
supra, 9 Cal.4th at pp. 355-356.) We agreed that ―pronouncement of sentence is a highly
technical process encompassing a wide variety of procedural and substantive matters.‖
(Id. at p. 356.) Nevertheless, we determined that the requirement that a defendant
contemporaneously object in order to challenge the sentencing order on appeal advanced
12

the goals of proper development of the record and judicial economy. Given that
imposition of a fee is of much less moment than imposition of sentence, and that the
goals advanced by judicial forfeiture apply equally here, we see no reason to conclude
that the rule permitting challenges made to the sufficiency of the evidence to support a
judgment for the first time on appeal ―should apply to a finding of‖ ability to pay a
booking fee under Government Code section 29550.2. (Butler, supra, 31 Cal.4th at p.
1126.) We disapprove People v. Pacheco, supra, 187 Cal.App.4th 1392, to the extent it
holds the contrary.2
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.

2
Defendant contends that People v. Viray (2005) 134 Cal.App.4th 1186 and People
v. Lopez (2005) 129 Cal.App. 4th 1508 support the conclusion that his appellate
challenge should not be deemed forfeited. However, each case merely references the
general rule that an appellate challenge to the sufficiency of the evidence ―requires no
predicate objection in the trial court.‖ (Viray, at p. 1217; see Lopez, at p. 1537.)
13



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. McCullough
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 193 Cal.App.4th 864
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S192513
Date Filed: April 22, 2013
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Stephen W. White

__________________________________________________________________________________

Counsel:

Danalynn Pritz, under appointment by the Supreme Court, and Gideon Margolis, under appointment by the Court of
Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Janet E. Neely and Michael A. Canzoneri, Deputy
Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Danalynn Pritz
Law Offices of Pritz & Associates
3625 East Thousand Oaks Boulevard, Suite 176
Westlake Village, CA 91362
(805) 496-8336

Michael A. Canzoneri
Deputy Attorney General
100 I Street, Suite 125
Sacramento, CA 94244-2550
9916) 322-5514


Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of a criminal offense. This case presents the following issue: Did defendant forfeit his claim that he was unable to pay the $270.17 jail booking fee (Gov. Code, 29550.2) imposed by the trial court at sentencing, because he failed to object at the time?

Opinion Information
Date:Citation:Docket Number:
Mon, 04/22/201356 Cal.4th 589, 298 P.3d 860, 13 Cal. Daily Op. Serv. 3963, 2013 Daily Journal D.A.R. 5163S192513

Opinion Authors
OpinionJustice Ming W. Chin

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Jun 3, 2013
Annotated by Alexia Romero

-Facts

Defendant McCullough (“defendant”) pleaded no contest to being a convicted felon in possession of a firearm and admitted a prior prison term allegation. The court imposed the stipulated state prison sentence of four years. It also ordered defendant to pay a $270.17 jail booking fee.

Defendant appealed claiming that the statute authorizing the court impose the booking fee required the court to determine if he was able to pay it. Defendant claimed his challenge to the booking fee came within the general rule that a judgment not supported by substantial evidence can be challenged for the first on appeal.

The California Attorney General countered that the defendant’s claim is barred by the rule that a defendant forfeits claims of sentencing error on appeal when he does not object in the trial court below.

-Procedural History:

The Court of Appeal of California affirmed the booking fee order. It noted it had “held on more than one occasion that in order to preserve a challenge to a fee or fine, a defendant must object in the trial court.”

The California Supreme Court granted review.

-Issue:
Did defendant forfeit his claim that he was unable to pay the $270.17 jail booking fee imposed by the trial court at sentencing, because he failed to object at the time?

-Holding:

The California Supreme Court held that a defendant who fails to contest the booking fee when the court imposes it forfeits the right to challenge it on appeal.

-Analysis:

Because the trial court did not reference the statutory authority for the booking fee it imposed, the California Supreme Court continued with the assumption by the Court of Appeals that it was imposed pursuant to Government Code section 29550.2, subdivision (a), which provides “If the person has the ability to pay, a judgment of conviction shall contain an order for payment of” the booking fee. Based on the plain meaning of this statute, the court determined that the defendant had the right to a determination of his ability to pay the booking fee before it was imposed.

Court noted that usually a defendant who does not challenge an erroneous ruling of the trial court in court forfeits his claim on appeal. In re Sheena K., 40 Cal.4th 875, 880 (2007). However, forfeiture is not automatic. Competing concerns may cause an appellate court to conclude that an objection has not been forfeited. Similar concerns may also cause an appellate court to refrain from applying the forfeiture bar.

The forfeiture rule applies in the sentencing context. In this context, legal errors can be challenged for the first time on appeal, but factual errors in sentencing cannot. Appellate courts are willing to decide legal errors challenged for the first time on appeal because such error is clear and correctable independent of any factual issues presented by the record at sentencing.

The Supreme Court held that the defendant’s ability to pay the booking fee was not a question of law. Therefore, it could not be raised for the first time on appeal. The court stated that the defendant could not transform a factual claim into a legal claim by asserting the record’s deficiency as a legal error.

-Tags

booking fee, sentence, forfeiture, object, waive, ability to pay, sufficiency of evidence, legal error, question of law, factual error, questions of fact, appeal

Annotation by Alexia Romero