People v. Pace CA4/1

California Court of Appeal · D062249 · 2013-02-28 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD237677
Trial judge: Peter L. Gallagher
Outcome: affirmed — Affirmed.
Area: criminal
Panel: McINTYRE (author), O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:58Z · confidence high

The trial court imposed a $154 criminal justice administration fee on the defendant without an explicit finding of ability to pay. The Court of Appeal affirmed the judgment, concluding that the statute should be rewritten to include an ability-to-pay requirement and that the record contained substantial evidence to support an implied finding that the defendant could pay.

Ruling reviewed	Standard	The court	The model
Imposition of the $154 criminal justice administration fee under Government Code section 29550.1 “Thus, the record contains substantial evidence to support an implied finding of Pace's ability to pay the booking fee.”	substantial evidence	correct	agree with court agree with court

Authorities

relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — A finding of ability to pay may be implied and must be supported by substantial evidence.
relied: People v. Hodges (1999) 71 Cal.App.4th 1348 — The forfeiture doctrine is applicable to challenges to the imposition of booking fees.
relied: People v. Hofsheier (2006) 37 Cal.4th 1185 — Remedies for equal protection violations include invalidating the statute, withdrawing the benefit from the favored class, or extending the benefit to the excluded class.
relied: Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 — A court may revise a statute if it can rewrite it in a manner that closely effectuates policy judgments clearly articulated by the Legislature.
relied: People v. Frye (1994) 21 Cal.App.4th 1483 — Prison wages may be considered in determining a defendant's ability to pay fines and fees.

The appellate opinion: sound — The court correctly identified the split in authority regarding forfeiture and assumed the claim was preserved. It applied the correct standard for statutory rewriting under Kopp and Hofsheier, concluding that extending the ability-to-pay requirement to section 29550.1 best effectuates legislative intent. The application of the substantial evidence standard to the probation report facts to support an implied finding of ability to pay is legally sound.

How this analysis was made · dispute it

unusual disposition

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

After a jury convicted Clifford Pace of second degree burglary and attempted grand theft, the trial court imposed a $154 booking fee under Government Code section 29550.1 without making an ability-to-pay finding, and Pace did not object. On appeal Pace argued the fee denied him equal protection because sections 29550 and 29550.2 require an ability-to-pay finding; the Court of Appeal assumed an equal protection problem, chose to extend the ability-to-pay requirement to section 29550.1, found substantial evidence supporting an implied finding of ability to pay, 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 equal protection grounds “Thus, we extend the ability-to-pay benefit to section 29550.1 and examine”	de novo	harmless error	agree with court The court assumed without deciding that equal protection principles were implicated and then, applying the remedial framework of Hofsheier and Kopp, concluded the Legislature would prefer extending the ability-to-pay requirement over invalidating the fee or withdrawing the requirement from the companion statutes. That remedial analysis is consistent with the cited Supreme Court authority and with the legislative history the court identified (AB 211 placing the burden on the convicted person; AB 2286 adding the ability-to-pay finding when the fee became mandatory). Because the court then found the record supported an implied ability-to-pay finding, any omission by the trial court was of no consequence. The approach of 'rewriting' a statute while only assuming a constitutional violation is somewhat unorthodox, which may explain the concurrence in result only, but it does not undermine the outcome.
Implied finding that Pace had the ability to pay the booking fee “Thus, the record contains substantial evidence to support an implied”	substantial evidence	correct	agree with court Pacheco holds an ability-to-pay finding may be implied if supported by substantial evidence. The probation report showed Pace earned $500 to $1,000 per week when working as a barber, had no debts, and said he could raise $50,000 if needed; the court also relied on Frye for the presumption of prison wages. For a $154 fee, this record easily satisfies the substantial evidence standard.
Whether Pace forfeited his challenge by failing to object at sentencing “Even if Pace did not forfeit his challenge, we reject his contentions.”	de novo	not reached	agree with court The court noted the split between Pacheco (no forfeiture) and Hodges (forfeiture) and that the issue was pending before the Supreme Court in McCullough, then bypassed the question by reaching the merits. Declining to resolve an unsettled threshold question when the merits fail anyway is a permissible and common approach.

Authorities

relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — Forfeiture doctrine does not bar an unpreserved challenge to a booking fee; an ability-to-pay finding may be implied but must be supported by substantial evidence.
relied: People v. Hodges (1999) 71 Cal.App.4th 1348 — Failure to object to a booking fee at sentencing forfeits the challenge on appeal (cited as the other side of the split).
relied: People v. Hofsheier (2006) 37 Cal.4th 1185 — Remedies for an equal protection violation include invalidating the statute, withdrawing the benefit from the favored class, or extending the benefit to the excluded class.
relied: Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 — A court may reform an unconstitutional statute if it can confidently do so in a manner that closely effectuates the Legislature's clearly articulated policy and the Legislature would prefer reformation to invalidation.
relied: People v. Frye (1994) 21 Cal.App.4th 1483 — In assessing ability to pay, a court may consider a defendant's prospective prison wages.

The appellate opinion: sound with gaps — The opinion sidesteps both the forfeiture split and the merits of the equal protection claim by assuming a violation and selecting a remedy under Hofsheier and Kopp, then resolves the case on a straightforward substantial-evidence review of ability to pay, which the probation report amply supports. It is defensible, but it leaves the constitutional question and forfeiture unresolved and engages in statutory 'rewriting' on an assumed rather than found violation, a gap reflected in the concurrence in result only.

How this analysis was made · dispute it

Opinion

Filed 2/28/13 P. v. Pace 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, D062249

Plaintiff and Respondent, v. (Super. Ct. No. SCD237677)

CLIFFORD PACE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed.

A jury convicted Clifford Pace of second degree burglary and attempted grand theft of personal property. At sentencing, the court ordered him to pay various fines and fees, including a $154 criminal justice administration fee (also called a booking fee) under Government Code section 29550.1. (All subsequent statutory references are to the Government Code.) Pace did not object to the imposition of the booking fee on any grounds. He now appeals, contending imposition of the booking fee denied him equal protection because section 29550.1, unlike sections 29550 and 29550.2, does not require a finding of ability to pay. He requests the booking fee be stricken. We decline to do so and affirm the judgment.

DISCUSSION

The Attorney General argues Pace forfeited his claim by failing to raise it at sentencing. There is a split of authority on the issue of whether the forfeiture doctrine applies in the context of challenges to the imposition of booking fees.

(People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco) [holding forfeiture doctrine inapplicable]; People v. Hodges (1999) 71 Cal.App.4th 1348, 1357 [holding forfeiture doctrine applicable].) This issue is currently before the California Supreme Court. (People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, S192513.) Even if Pace did not forfeit his challenge, we reject his contentions.

Sections 29550, 29550.1, and 29550.2 permit arresting agencies to recover booking fees from a person convicted of a criminal offense related to that person's arrest. (§§ 29550, subd. (c), 29550.1, 29550.2, subd. (a).) Section 29550.1 does not require the court to find the convicted person has the ability to pay the booking fee when the court imposes the fee. (§ 29550.1.) Sections 29550 and 29550.2, alternatively, require that the court find an ability to pay. (§§ 29550, subd. (d)(2), 29550.2, subd. (a).)

2 Pace contends the imposition of the booking fee denied him equal protection because section 29550.1 does not require that the court find an ability to pay. This issue is also before the California Supreme Court. (People v. Mason (2012) 206 Cal.App.4th 1026, review granted August 29, 2012, S203747.)

Assuming, without deciding, equal protection principles apply, several remedies exist to address an equal protection violation, including invalidating the statute, withdrawing the benefit from the favored class, or extending the benefit to the excluded class. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1207.) In order to accomplish the latter two options, a court must " 'rewrite' " the statute held to be unconstitutional. A court may revise a statute if, with confidence, it can rewrite the statute "in a manner that closely effectuates policy judgments clearly articulated" by the Legislature, and the Legislature would prefer the revision over invalidation. (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 660–661.)

Under section 29550.1, the Legislature intended for a person convicted of a crime to bear the financial burden of the booking fee. (Assem. Bill No. 211 (1997–1998 Reg. Sess.) § 1.) If we invalidate the statute, local agencies would bear the burden of the booking fee, not the convicted person. Accordingly, we choose to not invalidate section 29550.1 and strike the fee.

We next examine whether the Legislature would prefer to extend the ability-to-pay benefit in sections 29550 and 29550.2 to section 29550.1, or whether it would prefer to withdraw the ability-to-pay benefit from sections 29550 and 29550.2. We note that in 1993, the Legislature changed section 29550's 3 language requiring a court to impose the fee on a convicted person from permissive to mandatory. It also added the requirement that a court find an ability to pay. (Assem. Bill No. 2286 (1993–1994 Reg. Sess.) § 1.) If we were to withdraw the ability-to-pay requirement from sections 29550 and 29550.2, we would not effectuate the Legislature's policy of ensuring an ability to pay when imposing a mandatory fee. Therefore, we conclude the Legislature would prefer the extension of the ability-to-pay benefit in sections 29550 and 29550.2 to section 29550.1. This rewrite ensures the convicted person bears the financial burden for the booking fee except when the convicted person does not have the ability to pay.

Thus, we extend the ability-to-pay benefit to section 29550.1 and examine the record to determine whether it contains substantial evidence to support a finding that Pace has the ability to pay. (Pacheco, supra, 187 Cal.App.4th at p.

1400 [a finding of an ability to pay may be implied and must be supported by substantial evidence].) Pace's probation report reflected his income, education and employment history. Although currently unemployed, Pace admitted that he occasionally worked as a barber, and when he did work, he earned between $500 and $1000 a week. Pace also admitted he has no debts, and that if he had to raise $50,000, he could do it. Additionally, Pace will presumably have prison wages;

he did not make a contrary claim. (People v. Frye (1994) 21 Cal.App.4th 1483, 1486–1487.) Thus, the record contains substantial evidence to support an implied finding of Pace's ability to pay the booking fee.

4 DISPOSITION

The judgment is affirmed.

MCINTYRE, J.

I CONCUR:

O'ROURKE, J.

I CONCUR IN THE RESULT:

HUFFMAN, Acting P. J.

Cites, in this corpus

People v. Pacheco H034454 · 2010-09-21
People v. Hofsheier S124636 · 2006-03-06
National Parks & Conservation Ass'n v. County of Riverside No. D031056 · 1999-05-07
Kopp v. Fair Political Practices Commission S038571 · 1995-11-30
People v. Frye C015620 · 1994-01-19