The People v. Allison CA6

Filed 9/27/13 P. v. Allison 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038605
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1121959)
v.
DENNIS MALCOLM ALLISON,
Defendant and Appellant.
Defendant Dennis Malcolm Allison pleaded no contest to failure to register as a
sex offender. (Pen. Code, § 290.011, subd. (a).)1 He also admitted an enhancement
allegation that he was out of custody on bail at the time of the offense. (§ 12022.1.) The
trial court imposed felony probation that included a one-year term in county jail deemed
served since defendant had already earned 404 days of presentence custody credits. The
court ordered defendant’s release and, in accordance with the plea agreement, terminated
his probation. As part of the judgment, the court imposed various fees, including a
criminal justice administration “booking fee” of $129.75.
On appeal, defendant contends the booking fee must be stricken because the
evidence was insufficient to show his ability to pay. Because defendant failed to object
1
Subsequent undesignated statutory references are to the Penal Code.
to the fee at his sentencing hearing, however, we conclude he has forfeited his claim
under People v. McCullough (2013) 56 Cal.4th 589 (McCullough).2
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2011, Los Gatos police arrested defendant on a bench warrant.
Evidence presented at his preliminary hearing showed defendant had been notified of his
duty to register as a sex offender following his conviction for a prior offense. A
custodian of records testified that database records showed defendant had failed to
register with any law enforcement agency in California.
Defendant pleaded no contest to the charge, and admitted an allegation that he was
out of custody on bail at the time of the offense. At sentencing, the trial court imposed,
inter alia, a criminal justice administration booking fee of $129.75. (Gov. Code,
§ 29550.1.) Defendant lodged no objection to this fee.
II. DISCUSSION
Defendant contends the evidence is insufficient to show his ability to pay the
criminal justice administration booking fee.3 Respondent contends he forfeited his claim
by failing to object. Defendant concedes he failed to object, but argues his claim is not
forfeited, relying on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco) (claim of
2
Defendant filed his opening brief before the California Supreme Court issued
McCullough. Defendant’s brief acknowledged that McCullough was pending. Defendant
did not file a reply brief.
3
Government Code section 29550.1 contains no explicit requirement of a finding
of ability to pay. (Cf. Gov. Code, §§ 29550, subd. (d)(2) [booking fee shall be based on
defendant’s ability to pay] and 29550.2 [“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”].) Defendant contends an ability-to-pay
requirement is implicit in section 29550.1 because defendants under that statute are
similarly situated to defendants who are required to pay booking fees under sections
29550(d)(2) and 29550.2, two similar statutes that contain explicit ability-to-pay
requirements. Because we find his claim forfeited, we need not reach that issue.
2
insufficient evidence of ability to pay criminal justice administration booking fee is not
forfeited by failure to object).
Subsequent to Pacheco, the California Supreme Court held that a failure to object
to a booking fee for insufficient evidence of the ability to pay constitutes a forfeiture of
the claim. (McCullough, supra, 56 Cal.4th at p. 600 [disapproving Pacheco].)
Defendant identifies no basis for distinguishing his case from that of McCullough; nor do
we. Accordingly, we must reject defendant’s claim.
III. DISPOSITION
The judgment is affirmed.
_______________________________
Márquez, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
____________________________________________
Bamattre-Manoukian, J.
3