P. v. Hernandez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD240590
- Trial judge
- Laura Halgren
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Alex C. McDonald, Patricia D. Benke
Analysis
The trial court imposed a $154 criminal justice administration fee on the defendant following his guilty plea. The appellate court affirmed the judgment, holding that the defendant forfeited his right to challenge the fee by failing to object in the trial court.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the $154 criminal justice administration fee (booking fee) under Government Code section 29550.1“Hernandez did not object in the trial court to the imposition of the booking fee. He has thus forfeited his right to challenge the fee on appeal.” | unclear | harmless error | agree with court The court applied the forfeiture rule, determining that because the defendant did not object to the fee at the sentencing hearing, he waived the right to raise the equal protection and substantial evidence arguments on appeal. The court declined to exercise its discretion to review the merits under the plain error doctrine. |
Authorities
- relied: People v. McCullough (2013) 56 Cal.4th 589 — Failure to object to a fee in the trial court results in forfeiture of the right to challenge it on appeal.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the well-established forfeiture rule for unobjected-to sentencing enhancements or fees. It relies on the correct binding authority (People v. McCullough) to support the conclusion that the issue was waived.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Hernandez to a stipulated 28-year term after a negotiated plea to continuous sexual abuse and three lewd-act counts and imposed a $154 booking fee under Government Code section 29550.1 as recommended in the probation report, without an ability-to-pay finding. On appeal Hernandez raised an equal protection challenge to section 29550.1 and alternatively argued insufficient evidence of ability to pay; the Court of Appeal held both claims forfeited for lack of objection under People v. McCullough, declined to exercise discretion to reach the equal protection issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a $154 booking fee under Government Code section 29550.1 without an ability-to-pay finding, challenged on appeal as a denial of equal protection“Hernandez did not object in the trial court to the imposition of the booking fee. He has thus forfeited his right to challenge the fee on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593.)” | unclear | not reached | agree with court McCullough holds that a defendant who fails to object to a booking fee in the trial court forfeits the challenge on appeal, and appellate courts have discretion whether to reach a forfeited pure question of law. The court acknowledged that discretion and declined to exercise it; that is a permissible choice, although the opinion gives no reason for declining and McCullough itself concerned an ability-to-pay sufficiency claim rather than an equal protection claim. |
Imposition of the booking fee challenged as unsupported by substantial evidence of ability to pay“Alternatively, Hernandez contends substantial evidence does not support a finding he had the ability to pay the booking fee.” | unclear | not reached | agree with court McCullough squarely holds that a defendant who does not object forfeits an appellate claim that the evidence was insufficient to support an ability-to-pay finding for a booking fee. Hernandez did not object, so the forfeiture ruling directly follows binding Supreme Court authority. |
Authorities
- relied: People v. McCullough (2013) 56 Cal.4th 589 — A defendant who fails to object in the trial court to a booking fee forfeits an appellate challenge to the sufficiency of the evidence of ability to pay the fee; the reviewing court retains discretion whether to reach a forfeited issue.
The appellate opinion: sound with gaps — The forfeiture holding rests directly on McCullough, which is binding and on point for the ability-to-pay sufficiency claim, so the disposition is defensible. The opinion, however, offers no reasoning for declining to reach the equal protection claim, which is a pure question of law that McCullough did not itself address, leaving a gap in the analysis.
Opinion
Filed 8/2/13 P. v. Hernandez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062748
Plaintiff and Respondent, v. (Super. Ct. No. SCD240590)
JOSE ANTONIO HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura Halgren, Judge. Affirmed.
Jill M. Klein, 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, Eric A. Swenson and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Antonio Hernandez entered a negotiated guilty plea to continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a); count 9) and three counts of committing a lewd act on a child under 14 with substantial sexual conduct (Pen. Code, §§ 288, subd. (a) & 1203.066, subd. (a)(8); counts 28, 30 & 33). The court sentenced him to a stipulated 28-year prison term: the 16-year upper term on count 9; the eight-year upper term on count 28 and two years each (one-third the middle term) on counts 30 and 33. The court imposed a $154 criminal justice administration fee (booking fee) pursuant to Government Code section 29550.1, as recommended in the probation report. Hernandez appeals, contending imposition of the booking fee violated his right to equal protection because Government Code section 29550.1 does not require a finding of ability to pay, unlike the booking fees set forth in Government Code sections 29550 and 29550.2, and there is no rational basis for distinguishing Government Code section 29550.1 from the latter two sections. Alternatively, Hernandez contends substantial evidence does not support a finding he had the ability to pay the booking fee.
Hernandez did not object in the trial court to the imposition of the booking fee. He has thus forfeited his right to challenge the fee on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593.) Hernandez suggests that we exercise our discretion to consider the merits of the equal protection issue. (Ibid.) We decline to do so.
DISPOSITION
The judgment is affirmed.
2 MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCDONALD, J.
Cites, in this corpus
- People v. McCullough S192513 · 2013-04-22