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People v. Hurst CA4/1

California Court of Appeal · D065352 · 2015-03-25 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCS266869
Trial judge
Alvin E. Green Jr.
Outcome
modified — Affirmed as modified and remanded with directions.
Area
criminal
Panel
O'Rourke (author), Gilbert Nares, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:20Z · confidence high

The trial court sentenced the defendant to four years in prison and imposed a booking fee and drug program fee without making explicit findings on his ability to pay, and awarded 131 days of actual custody credit. The Court of Appeal affirmed the judgment as modified, holding the fee challenges were forfeited and ineffective assistance claims failed, but correcting the custody credit to 132 days.

Ruling reviewedStandardThe courtThe model
Imposition of booking fee without ability-to-pay finding
“McCullough and Aguilar control this case, and therefore Hurst's appellate claim is forfeited because he likewise failed to first object to the booking fee in the trial court.”
unclearharmless erroragree with court
The court correctly applies the forfeiture rule established in People v. McCullough and People v. Aguilar, which hold that challenges to booking fees must be raised at sentencing to be preserved for appeal. Since the defendant did not object at the trial level, the appellate court properly declined to review the merits of the due process claim regarding the fee's validity or the sufficiency of evidence for ability to pay.
Imposition of drug program fee without ability-to-pay finding
“Hurst forfeited his objection to the drug program fee by not asserting it at the sentencing hearing. (McCullough, supra, 56 Cal.4th at p. 597.)”
unclearharmless erroragree with court
The court applies the same forfeiture principle to the drug program fee, citing McCullough and other appellate authority. Because the defendant failed to object to the fee at the time of sentencing, the issue is waived on appeal, preventing the court from reviewing whether the trial court properly considered his ability to pay under Health and Safety Code section 11372.7.
Ineffective assistance of counsel for failure to object to fees
“We disagree that the only satisfactory explanation for trial counsel's failure to object and request a hearing on ability to pay is ineffective assistance.”
de novonot reachedagree with court
The court analyzes the claim under the Strickland standard, requiring a showing of deficient performance and prejudice. It finds no deficiency because counsel's strategic focus on striking prior convictions was a reasonable alternative to objecting to fees, and the record supported an implied ability to pay based on the defendant's age and education. The court concludes the defendant failed to meet his burden of proving ineffective assistance by a preponderance of the evidence.
Calculation of actual custody credits
“We conclude the court should have awarded Hurst credit for 132 days of actual custody and corresponding conduct credits, and it should do so on remand.”
de novoerroragree with court
The court reviews the calculation of custody credits de novo, as it is a matter of law and fact based on the dates of incarceration. The parties agreed on the dates (September 1, 2013, to January 10, 2014), but the trial court miscalculated the total days. The appellate court correctly determines the proper count is 132 days and modifies the judgment to reflect this accurate figure under Penal Code section 4019.

Authorities

  • relied: People v. McCullough (2013) 56 Cal.4th 589 — A defendant forfeits an appellate challenge to the sufficiency of evidence supporting a jail booking fee if the fee is not first challenged in the trial court.
  • relied: People v. Aguilar (2015) 60 Cal.4th 862 — Challenges to the imposition of booking fees are forfeited unless made at sentencing, even if the defendant argues the court failed to make specific ability-to-pay findings or provide evidence of actual costs.
  • relied: People v. Crittle (2007) 154 Cal.App.4th 368 — To preserve a challenge to a fee or fine based on ability to pay, a defendant must object in the trial court; failure to raise the issue waives the right to contest it on appeal.
  • relied: People v. Gibson (1994) 27 Cal.App.4th 1466 — Failure to raise an issue in the trial court waives the right to contest it on appeal.
  • relied: People v. Jones (2013) 217 Cal.App.4th 735 — To establish ineffective assistance of counsel, a defendant must show counsel's performance was deficient and it is reasonably probable that a more favorable result would have been reached absent the deficient performance.
  • relied: People v. Powell (2011) 194 Cal.App.4th 1268 — A defendant must show ineffective assistance of counsel by a preponderance of the evidence.
  • relied: People v. Gray (2005) 37 Cal.4th 168 — Failure to object rarely constitutes constitutionally ineffective legal representation, and appellate review is limited to the matters illuminated by the record on appeal.
  • relied: People v. Staley (1992) 10 Cal.App.4th 782 — Ability to pay does not necessarily require existing employment or cash on hand.
  • relied: People v. Hennessey (1995) 37 Cal.App.4th 1830 — In determining ability to pay, a court may consider a defendant's ability to pay in the future, including prison wages and post-release earnings.
  • relied: People v. Rajanayagam (2012) 211 Cal.App.4th 42 — Guidance on the calculation of custody credits under Penal Code section 4019.

The appellate opinion: sound — The opinion is sound because it correctly applies the controlling forfeiture rules from McCullough and Aguilar to bar the fee challenges and properly analyzes the ineffective assistance claim using the Strickland standard. It also correctly identifies and corrects the mathematical error in the custody credit calculation.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The San Diego Superior Court sentenced Patrick Hurst to four years in prison after a jury convicted him of importing methamphetamine, imposed a $154 booking fee and a $615 drug program fee without an express ability-to-pay finding, and awarded 131 actual days plus 130 conduct days of presentence credit. The Court of Appeal held the fee challenges forfeited under People v. McCullough and People v. Aguilar, rejected the ineffective-assistance claim, corrected the actual custody credits to 132 days with corresponding conduct credits, and otherwise affirmed with directions to amend the abstract.

Ruling reviewedStandardThe courtThe model
Imposition of $154 booking fee (Gov. Code, § 29550 et seq.) without an express finding of ability to pay or evidence of actual administrative costs
“McCullough and Aguilar control this case, and therefore Hurst's appellate claim is forfeited because he likewise failed to first object to the booking fee in the trial court.”
de novonot reachedagree with court
Hurst did not object at sentencing, and McCullough (56 Cal.4th 589) and Aguilar (60 Cal.4th 862) squarely hold that unpreserved challenges to booking fees, including the argument that Penal Code section 987.8 procedures or actual-cost evidence were required, are forfeited. Aguilar directly disposed of the precise distinction Hurst drew, so the forfeiture holding is compelled by binding Supreme Court authority.
Imposition of $615 drug program fee (Health & Saf. Code, § 11372.7) without an express ability-to-pay determination
“Hurst forfeited his objection to the drug program fee by not asserting it at the sentencing hearing.”
de novonot reachedagree with court
Section 11372.7, subdivision (b) requires the court to consider ability to pay, but McCullough's forfeiture rule applies to fee determinations resting on factual findings the defendant failed to contest below, and Crittle and Gibson apply the same rule to ability-to-pay objections. The court's extension of McCullough to the drug program fee is consistent with those authorities; the court also found the record would support an implied ability-to-pay finding based on prison wages, which Hennessey permits.
Claim that trial counsel rendered ineffective assistance by failing to object to the booking and drug program fees
“Nothing in the record explains why defense counsel did not object to the imposition of the booking and drug program fees.”
de novocorrectagree with court
On direct appeal with a silent record, the court properly applied the Strickland framework as stated in Jones and Gray: failure to object rarely constitutes ineffective assistance, a tactical reason (focusing on striking prior strikes to reduce the prison term) is conceivable, and prejudice was not shown because a 23-year-old defendant with a GED could earn prison wages sufficient to pay $769 in fees, as Staley and Hennessey allow a court to consider. Both prongs were adequately analyzed.
Award of 131 actual custody days and 130 conduct credits for presentence custody from September 1, 2013 to January 10, 2014
“We conclude the court should have awarded Hurst credit for 132 days of actual custody and corresponding conduct credits, and it should do so on remand.”
de novoerror (fact finding unsupported)agree with court
Counting September 1, 2013 through January 10, 2014 inclusive yields 132 days (30+31+30+31+10), so the trial court's 131-day figure was a miscalculation. Under Penal Code section 4019, subdivision (f) as construed in Rajanayagam, 132 actual days yields 132 conduct days, so the modification is correct, although the disposition's reference to 'Penal Code section 4012' is an evident typographical error for section 4019.

Authorities

  • relied: People v. McCullough (2013) 56 Cal.4th 589 — A defendant who fails to object in the trial court forfeits an appellate challenge to the sufficiency of the evidence supporting a booking fee and ability to pay.
  • relied: People v. Aguilar (2015) 60 Cal.4th 862 — Reliance on the procedural requirements of Penal Code section 987.8 does not avoid McCullough's forfeiture rule; unpreserved challenges to booking fees, including as to actual-cost evidence, are forfeited.
  • relied: People v. Crittle (2007) 154 Cal.App.4th 368 — Failure to object in the trial court to a fee on ability-to-pay grounds waives the challenge on appeal.
  • relied: People v. Gibson (1994) 27 Cal.App.4th 1466 — An ability-to-pay challenge to a fine or fee must be raised in the trial court to be preserved for appeal.
  • relied: People v. Jones (2013) 217 Cal.App.4th 735 — To establish ineffective assistance, a defendant must show deficient performance and a reasonable probability of a more favorable result.
  • relied: People v. Powell (2011) 194 Cal.App.4th 1268 — A defendant must prove ineffective assistance of counsel by a preponderance of the evidence.
  • relied: People v. Gray (2005) 37 Cal.4th 168 — Failure to object rarely constitutes constitutionally ineffective representation, and review is limited to matters shown in the appellate record.
  • relied: People v. Staley (1992) 10 Cal.App.4th 782 — Ability to pay does not require existing employment or cash on hand.
  • relied: People v. Hennessey (1995) 37 Cal.App.4th 1830 — In assessing ability to pay, a court may consider the defendant's future ability to earn prison wages and income after release.
  • relied: People v. Rajanayagam (2012) 211 Cal.App.4th 42 — Under Penal Code section 4019, subdivision (f), a defendant earns conduct credit at a rate of two days for every two days of actual custody.

The appellate opinion: sound — The forfeiture holdings follow directly from McCullough and the then-newly decided Aguilar, which rejected the very section 987.8 distinction Hurst advanced, and the ineffective-assistance analysis correctly applies both prongs on a silent record. The custody-credit correction is arithmetically right and supported by section 4019, though the disposition misstates the statute as 'section 4012' and the opinion does not separately address whether the drug program fee statute's mandatory ability-to-pay language could survive forfeiture analysis differently from the booking fee statutes.

How this analysis was made · dispute it

Opinion

Filed 3/25/15 P. v. Hurst 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, D065352

Plaintiff and Respondent, v. (Super. Ct. No. SCS266869)

PATRICK DORIAN HURST,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Alvin E.

Green, Jr., Judge. Affirmed as modified and remanded with directions.

Coughlan, Semmer, Fitch & Pott and Earll M. Pott; David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Patrick Dorian Hurst of importation of a controlled substance.

(Health & Saf. Code, § 11379, subd. (a).) The court sentenced him to four years in state prison and imposed different fines and fees, including a $615 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) and a $154 criminal justice administration fee (booking fee; Gov. Code, § 29550 et seq.)

Hurst contends: (1) the court violated his constitutional right to due process by failing to make a finding regarding his ability to pay the booking fee and drug program fee, or to ensure the booking fee did not exceed actual administrative costs incurred; (2)

his counsel provided ineffective assistance by failing to object to imposition of the fees without the statutorily required factual findings; and (3) the court erroneously calculated his actual custody credits. We find merit in the last contention only, and modify his custody credits. As so modified, we affirm the judgment and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Hurst was convicted based on testimony that he tried to cross the border from Mexico to the United States carrying 861.4 grams of methamphetamine.

At sentencing, the court followed the probation department's recommendation and ordered Hurst to pay the booking fee and a drug program fee. Hurst did not object to the fees in his sentencing brief or at the sentencing hearing. The court awarded Hurst 131 actual days and 130 conduct credits under Penal Code section 4019, for a total of 261 days of presentence credit.

2 DISCUSSION

I.

A. Booking Fee Hurst contends that the trial court's failure to find he was able to pay the booking fee was a violation of his procedural due process rights. He further contends that the error was prejudicial and reversible because the record does not contain substantial evidence that he had the means to pay the $154 booking fee.

Hurst relies on Penal Code section 987.8, subdivision (g),1 which outlines criteria for a court to make an ability to pay determination. He also attempts to distinguish this case from People v. McCullough (2013) 56 Cal.4th 589 (McCullough), in which the California Supreme Court held that a defendant forfeits an appellate challenge to the sufficiency of evidence supporting a jail booking fee imposed under Government Code section 29550.2, subdivision (a) if the fee is not first challenged in the trial court.

(McCullough, at p. 597.)

1 Penal Code section 987.8, subdivision (g)(2) states that a defendant's ability to pay refers to his or her overall capability to reimburse the costs of the legal assistance received, and shall include: "(A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for the purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." 3 Hurst specifically argues: "McCullough . . . is not dispositive of the instant case.

First, the Supreme Court only considered the insufficiency of the evidence of ability to pay under Government Code section[ ] 29550.2, subdivision (a), not the statute's further requirement that the fee not exceed the actual costs [of] a defendant's arrest and booking."

While this case was pending on appeal, the California Supreme Court decided People v. Aguilar (2015) 60 Cal.4th 862, which addressed the same issue presented here of whether appellate forfeiture rules applied in a case where the "defendant contended the court imposed these [booking] fees without making a finding of his ability to pay (and, in the case of the booking fee, without evidence in the record of the actual costs of the governmental services to be reimbursed through such fees) as required by [case law]."

(Aguilar, at p. 865.)

The Aguilar court summarized the defendant's contention as follows:

"[D]efendant here relies on the specification in . . . [Penal Code section] 987.8 of certain procedural requirements not contained in the booking fee statutes [citation] in an effort to distinguish our decision in [McCullough, supra, 56 Cal.4th 589], which held that challenges to the imposition of booking fees are forfeited unless made at sentencing. . . .

[T]he effort is unavailing." (Aguilar, supra, 60 Cal.4th at pp. 866-867.) In rejecting the defendant's arguments, the court reasoned that the defendant had an opportunity to object to the fees "when the court, at sentencing, announced the fees it was imposing, which largely tracked those recommended in the presentence investigation report"; but the defendant did not avail himself of the opportunity. (Aguilar, at pp. 867-868.)

4 McCullough and Aguilar control this case, and therefore Hurst's appellate claim is forfeited because he likewise failed to first object to the booking fee in the trial court.

B. Drug Program Fee Health and Safety Code section 11372.7 governs the imposition of mandatory drug program fees. The statute requires a court to consider whether the defendant has an ability to pay the drug program fee. (Health & Saf. Code, § 11372.7, subd. (b).) If a court finds the defendant does not have an ability to pay the drug program fee, he or she will not be required to pay it. (Ibid.)

For a defendant to challenge a trial court's determination of his or her ability to pay a fee on appeal, the defendant must raise the issue in the trial court to preserve the objection on appeal. (McCullough, supra, 56 Cal.4th at p. 597.) To preserve a challenge to a fee or fine based on ability to pay, a defendant must object in the trial court; failure to raise the issue waives the right to contest it on appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

Where the court's imposition of a fee is based on "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." (McCullough, at p. 597.)

Hurst forfeited his objection to the drug program fee by not asserting it at the sentencing hearing. (McCullough, supra, 56 Cal.4th at p. 597.)

II.

Hurst alternatively argues that he received ineffective assistance of counsel. "To establish ineffective assistance of counsel, a defendant must show (1) counsel's 5 performance was deficient and fell below an objective standard of reasonableness and (2)

it is reasonably probable that a more favorable result would have been reached absent the deficient performance. [Citation.] A reasonable probability is a 'probability sufficient to undermine confidence in the outcome.' " (People v. Jones (2013) 217 Cal.App.4th 735, 746-747.)

Hurst must show ineffective assistance by a preponderance of the evidence.

(People v. Powell (2011) 194 Cal.App.4th 1268, 1298.) " 'Failure to object rarely constitutes constitutionally ineffective legal representation.' " (People v. Gray (2005) 37 Cal.4th 168, 207.) In consideration of a claim of ineffective assistance of counsel, we are limited to the matters illuminated by the record on appeal. (Ibid.)

Nothing in the record explains why defense counsel did not object to the imposition of the booking and drug program fees. We disagree that the only satisfactory explanation for trial counsel's failure to object and request a hearing on ability to pay is ineffective assistance. At sentencing, defense counsel requested the court strike defenant's strike convictions. It is reasonable to conclude that defense counsel was arguing the point important to his client—a reduced prison stay—and that Hurst was not concerned with the fees involved here. We also note that the record supports an implied finding of an ability to pay. "Ability to pay does not necessarily require existing employment or cash on hand." (People v. Staley (1992) 10 Cal.App.4th 782, 785.) In determining whether a defendant has the ability to pay a court is not limited to considering a defendant's present ability, but may consider a defendant's ability to pay in the future. This includes the defendant's ability to obtain prison wages and to earn money 6 after his release from custody. (Accord, People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Hurst was 23 years old at the time of the hearing, and he had obtained his GED in 2008. There is no basis in the record for concluding Hurst was unable to work in prison to pay the fees. We conclude he has not met his burden of establishing ineffective assistance of counsel.

III.

Hurst and the People agree that for purposes of calculating his custody credits, he was incarcerated in county jail from September 1, 2013, until January 10, 2014, when he was sentenced; however, they disagree on how many custody credits he was entitled to receive. We conclude the court should have awarded Hurst credit for 132 days of actual custody and corresponding conduct credits, and it should do so on remand. (Pen. Code, § 4019, subd. (f); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)

7 DISPOSITION

We modify Patrick Dorian Hurst's custody credits to reflect that he is entitled to 132 actual custody days and corresponding conduct credits under Penal Code section 4012. As so modified, the judgment is affirmed. On remand, the trial court is directed to amend the abstract of judgment in accordance with this opinion and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

Cites, in this corpus