People v. Cornick CA3 ( 2013 )

Filed 12/13/13 P. v. Cornick CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C072087
Plaintiff and Respondent, (Super. Ct. No. 12F00370)
v.
ALBERT CORNICK,
Defendant and Appellant.
Following defendant Albert Cornick’s conviction for assault with a deadly
weapon, the court sentenced him to three years in state prison and imposed a
classification fee of $62.09 and a booking fee of $340.01. On appeal, defendant
challenges both fees, arguing the court failed to find an ability to pay the fees. We find
defendant forfeited his challenge to the classification and booking fees by failing to
object in the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Harold Mausteller owned a business located in his residence. In 2011 Mausteller
ran an advertisement in a local newspaper for a roommate. Defendant responded to the
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ad and signed a lease. Under the lease, defendant had the run of the premises with the
exception of Mausteller’s bedroom, bathroom, and office.
A few months later, defendant and Mausteller got into an argument over the repair
of a wooden fence. Words were exchanged and defendant hit Mausteller on the head
with a hammer. The two men struggled until Mausteller realized blood was running
down his face. Mausteller called 911, and officers found Mausteller sitting on his
neighbor’s porch with a bleeding head.
Defendant has prior convictions for driving under the influence, causing injury,
and for narcotics sales.
Defendant testified he acted in self-defense and never struck Mausteller with the
hammer. He stated Mausteller’s injuries were caused by the struggle.
An information charged defendant with assault with a deadly weapon and assault
by means of force likely to produce great bodily injury. (Pen. Code, §§ 245, subd. (a)(1),
(4).) Defendant entered a plea of not guilty.
A jury convicted defendant of assault with a deadly weapon. The court declared a
mistrial as to the count of assault by means of force likely to produce great bodily injury.
The court sentenced defendant to the middle term of three years in state prison and
imposed a classification fee of $62.09 and a booking fee of $340.01. Defendant filed a
timely notice of appeal.
DISCUSSION
Defendant argues the court erred in imposing the booking and classification fees at
the time of sentencing. According to defendant, the court failed to find him able to pay
the fees. Defendant also contends the issue is one of insufficient evidence and is not
forfeited by his failure to object to the fees in the trial court.
Background
The trial court, at sentencing, reviewed the probation report. The court also noted
that defendant and defense counsel had reviewed the report. The probation report
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recommended that defendant pay a $340.01 “main jail booking fee” and a “main jail
classification fee” of $62.09 pursuant to Government Code section 29550.2. Defense
counsel asked the trial court to consider a lesser sentence and requested a formal
restitution hearing.
The court then imposed sentence and the fees in question. Defense counsel did
not object.
Forfeiture
Government Code section 29550.2, subdivision (a) states, in pertinent part: “Any
person booked into a county jail pursuant to any arrest by any governmental entity not
specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee
for administration costs incurred in conjunction with the arresting and booking if the
person is convicted of any criminal offense relating to the arrest and booking. The fee
which the county is entitled to recover pursuant to this subdivision shall not exceed the
actual administrative costs as defined in subdivision (c), including applicable overhead
costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise
processing arrested persons. 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
fee by the convicted person . . . .” (Italics added.)
The People contend defendant waived his challenge to the booking and
classification fee by failing to object at sentencing. Defendant counters that waiver does
not apply because he is challenging the lack of evidence to support a finding of his ability
to pay the fee, citing the rule that a claim of insufficiency of the evidence to support a
judgment is cognizable on appeal absent an objection in the trial court.
This court has frequently held that in order to preserve a challenge to a fee or fine,
a defendant must object in the trial court. (People v. Crittle (2007) 154 Cal. App. 4th 368,
371; People v. Hodges (1999) 70 Cal. App. 4th 1348, 1357; People v. Gibson (1994)
27 Cal. App. 4th 1466, 1467, 1468-1469.) In Gibson, the defendant argued for the first
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time on appeal that the trial court erred in imposing restitution fines without a
determination that he had the ability to pay. (Gibson, at p. 1467.) We stated: “The
purpose of the waiver doctrine is to bring errors to the attention of the trial court so they
may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial
court will not be considered on appeal is founded on considerations of fairness to the
court and opposing party, and on the practical need for an orderly and efficient
administration of the law. [Citations.]
“As a matter of fairness to the trial court, a defendant should not be permitted to
assert for the first time on appeal a procedural defect in imposition of a restitution fine,
i.e., the trial court’s alleged failure to consider defendant’s ability to pay the fine.
[Citation.] Rather, a defendant must make a timely objection in the trial court in order to
give that court an opportunity to correct the error; failure to object should preclude
reversal of the order on appeal.” (Gibson, supra, 27 Cal.App.4th at p. 1468.) Defendant
argues these cases are distinguishable and relies instead on a trilogy of cases: People v.
Pacheco (2010) 187 Cal. App. 4th 1392 (Pacheco); People v. Viray (2005)
134 Cal. App. 4th 1186 (Viray); and People v. Lopez (2005) 129 Cal. App. 4th 1508
(Lopez).
However, in its review of People v. McCullough (2013) 56 Cal. 4th 589, another
case decided by this court involving the same issue, the Supreme Court disapproved
Pacheco (McCullough, at p. 599), characterized the holdings in Viray and Lopez as
simple restatements of the “general rule that an appellate challenge to the sufficiency of
the evidence ‘requires no predicate objection in the trial court’ ” (McCullough, at
pp. 599-600, fn. 2), and reaffirmed “that the requirement that a defendant
contemporaneously object in order to challenge the sentencing order on appeal advanced
the goals of proper development of the record and judicial economy” (id. at p. 599). The
court concluded that the goals advanced by judicial forfeiture apply equally to the
imposition of a fee and affirmed this court’s decision holding that a defendant who fails
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to contest the booking fee when the court imposes it forfeits the right to challenge it on
appeal. (Id. at pp. 599-600.)
Here, defendant did not object in the trial court to the imposition of a classification
fee of $62.09 and a booking fee of $340.01. The forfeiture rule applies and defendant is
barred from challenging these fees on appeal.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
MURRAY , J.
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