P. v. Aung CA4/1

California Court of Appeal · D062442 · 2013-04-18 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN281803
Trial judge: Harry M. Elias
Outcome: affirmed — Affirmed.
Area: criminal
Panel: McINTYRE (author), O'Rourke, Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:55Z · confidence high

The trial court sentenced the defendant to 11 years in prison and imposed a $154 criminal justice administrative fee under Government Code section 29550.1 without an explicit finding of ability to pay. The Court of Appeal affirmed the judgment, rejecting the defendant's equal protection challenge by judicially reforming the statute to include an ability-to-pay requirement and finding substantial evidence in the record to support an implied finding that the defendant could pay.

Ruling reviewed	Standard	The court	The model
Imposition of the $154 criminal justice administrative fee (booking fee) under Government Code section 29550.1 “Accordingly, 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 Aung has the ability to pay.”	substantial evidence	correct	agree with court agree with court

Authorities

relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — Establishes that a finding of ability to pay may be implied and must be supported by substantial evidence.
relied: Ceridian Corp. v. Franchise Tax Bd. (2000) 85 Cal.App.4th 875 — Defines the standard for judicial reformation of a statute to preserve it against constitutional invalidation.
relied: Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 — Confirms that the power of judicial reformation can be exercised in cases concerning underinclusive or otherwise unconstitutional classifications under the equal protection clause.
relied: People v. Frye (1994) 21 Cal.App.4th 1483 — Supports the assumption that a prisoner has the ability to pay a minimal fee if the record suggests they have the ability to obtain prison employment.

The appellate opinion: sound — The court correctly applied the standard for judicial reformation to address the equal protection challenge, noting that the legislature's intent was for the convicted person to bear the cost. It then correctly applied the substantial evidence standard to the record, finding that the defendant's work history and potential for prison labor supported an implied finding of ability to pay.

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

The trial court, after a jury convicted Htoo Aung of assault with a deadly weapon and found two prior conviction allegations true, sentenced him to 11 years and imposed a $154 booking fee under Government Code section 29550.1 without an ability-to-pay finding and without objection. On appeal Aung argued the fee denied him equal protection because section 29550.1, unlike sections 29550 and 29550.2, lacks an ability-to-pay requirement; the Court of Appeal assumed no forfeiture, judicially reformed section 29550.1 to include an ability-to-pay requirement, found substantial evidence of an implied ability to pay based on prison wages, 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 (equal protection challenge) “Assuming, without deciding, that Aung did not forfeit his challenge and that equal protection principles apply, we reject his contentions.”	de novo	correct	agree with court The court did not decide whether the classification violates equal protection; it assumed it did and applied judicial reformation under Kopp and Ceridian to extend the ability-to-pay requirement to section 29550.1 rather than strike the fee, reasoning that the Legislature clearly intended convicted persons rather than local agencies to bear booking costs. That reformation remedy is supported by the cited authority and legislative history, and striking the fee would not follow even if the equal protection claim had merit. The court's description of the statutory scheme is somewhat imprecise (it cites section 29550, subd. (a)(1) for arrestee liability and says Aung was charged the full cost), but these slips do not affect the result.
Implied finding that Aung has the ability to pay the booking fee “Because the record suggests that Aung has the ability to obtain prison employment we must assume that he will have the ability to pay the minimal booking fee.”	substantial evidence	correct	agree with court Pacheco permits an implied ability-to-pay finding supported by substantial evidence, and Frye recognizes that prison wages under Penal Code section 2700 may be considered. Although the probation report showed Aung was unemployed with no income or savings, his education, work history, and an 11-year term with the prospect of prison employment reasonably support an implied finding as to a $154 fee. The trial court never actually made such a finding because the statute did not require one, so the appellate court is effectively making the finding itself, but given the small amount and the record described, the conclusion is defensible.
Whether Aung forfeited his booking-fee challenge by failing to object in the trial court “The issue whether forfeiture applies when a defendant did not object to the imposition of a booking fee in the trial court is pending before our high court.”	unclear	not reached	agree with court The court noted that forfeiture of unobjected-to booking fees was pending in People v. McCullough and People v. Mason and assumed without deciding that the challenge was not forfeited. Bypassing a threshold question in the appellant's favor when the claim fails on the merits is a standard and appropriate approach.

Authorities

relied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — Sections 29550, 29550.1 and 29550.2 govern booking fees; a finding of ability to pay may be implied but must be supported by substantial evidence.
relied: Ceridian Corp. v. Franchise Tax Bd. (2000) 85 Cal.App.4th 875 — A court may reform a statute to preserve it against constitutional invalidation when it can confidently effectuate the Legislature's clearly articulated policy and the Legislature would prefer reformation to invalidation.
relied: Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 — Judicial reformation may be used to cure underinclusive or otherwise unconstitutional classifications under the equal protection clause.
relied: People v. Frye (1994) 21 Cal.App.4th 1483 — A defendant's ability to earn prison wages may be considered in determining ability to pay a fee or fine.

The appellate opinion: sound with gaps — The court avoided the pending forfeiture and equal protection questions by assuming them in the defendant's favor and then applying established reformation doctrine (Kopp, Ceridian) to add an ability-to-pay requirement, which is a defensible route that is better supported than striking the fee. Gaps remain: the court never decided whether the classification actually lacks a rational basis, its summary of the statutory scheme contains minor inaccuracies, and the ability-to-pay 'finding' is supplied by the appellate court itself rather than reviewed, though the small fee and Frye make the result reasonable.

How this analysis was made · dispute it

Opinion

Filed 4/18/13 P. v. Aung 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, D062442

Plaintiff and Respondent, v. (Super. Ct. No. SCN281803)

HTOO AUNG,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Affirmed.

A jury convicted Htoo Aung of assault with a deadly weapon or force likely to produce great bodily harm. The trial court found two alleged prior convictions to be true.

It sentenced Aung to an 11-year prison term, and ordered him to pay fines, including a criminal justice administrative fee (booking fee) in the amount of $154 under Government Code section 29550.1. (Undesignated statutory references are to the Government Code.) Aung did not object to the imposition of the booking fee on any grounds. He 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

Sections 29550, 29550.1, and 29550.2 govern booking fees for processing arrested persons into county jail. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 (Pacheco).) Persons, such as Aung, that are arrested by a local agency are liable for one- half the amount of the booking fee without any determination of his or her ability to pay the fee. (§ 29550, subd. (a)(1).) Persons arrested by other than a local or county agency are liable for the full booking fee, subject to their ability to pay. (§ 29550.2.) Finally, county arrestees may be liable for the full booking fee if incarcerated; however, booking fee liability for county arrestees placed on probation is conditioned on their ability to pay.

(§ 29550, subd. (d).)

Aung contends that his equal protection rights were violated because he was required to pay the full booking cost and no rational basis exists to distinguish why an ability to pay finding is required for some agencies but not others. He acknowledges that he failed to raise this issue below. The issue whether forfeiture applies when a defendant did not object to the imposition of a booking fee in the trial court is pending before our high court. (People v. Mason, review granted Aug. 29, 2012, S203747; People v. McCullough, review granted June 29, 2011, S192513.) The issue whether the imposition 2 of the section 29550.1 booking fee denies a defendant equal protection because section 29550.1 does not require that the court find an ability to pay is also before the California Supreme Court. (People v. Mason, supra, S203747.) Assuming, without deciding, that Aung did not forfeit his challenge and that equal protection principles apply, we reject his contentions.

" '[A] court may reform — i.e., "rewrite" — a statute in order to preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.' " (Ceridian Corp. v. Franchise Tax Bd. (2000) 85 Cal.App.4th 875, 889.) The power of judicial reformation can be exercised in cases concerning underinclusive or otherwise unconstitutional classifications under the equal protection clause. (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 629.)

Here, we can say with confidence that revising section 29550.1 to include an ability to pay provision, rather than withdrawing the ability to pay benefit from sections 29550 and 29550.2, would be consistent with the legislative policy judgment underlying the booking fee statutes. In 1993, the Legislature changed the language of section 29550 requiring a court to impose the fee on a convicted person from permissive to mandatory.

(Assem. Bill No. 2286 (1993-1994 Reg. Sess.) § 1.) It also added the requirement that a court find an ability to pay. (Ibid.) Similarly, under section 29550.1, the Legislature 3 intended that a person convicted of a crime bear the financial burden of the booking fee.

(Assem. Bill No. 211 (1997-1998 Reg. Sess.) § 1.)

Hence, we reject Aung's request to invalidate section 29550.1 and strike the fee because doing so would require that local agencies bear the burden of the booking fee, not the convicted person. Instead, we conclude the Legislature would prefer to extend the ability to pay benefit in sections 29550 and 29550.2 to section 29550.1. This rewrite ensures that the convicted person bears the financial burden for the booking fee except when the convicted person does not have the ability to pay.

Accordingly, 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 Aung 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].) Aung's probation report reveals that he was unemployed at time of the offense and had no income, liabilities or savings. Although Aung was diagnosed with bi-polar disorder in 2002, the condition did not prevent him from completing two years of community college. He also previously worked in several different positions, including a security guard and manufacturing and assembly in the automotive industry.

Penal Code section 2700 provides, in part that "[t]he Department of Corrections shall require of every able-bodied prisoner imprisoned in any state prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections." This section requires that prisoners who perform assigned work be compensated. (Ibid.)

4 Because the record suggests that Aung has the ability to obtain prison employment we must assume that he will have the ability to pay the minimal booking fee. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1486–1487.)

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

Cites, in this corpus

People v. Pacheco H034454 · 2010-09-21
Ceridian Corp. v. Franchise Tax Board A084298 · 2001-01-18
Kopp v. Fair Political Practices Commission S038571 · 1995-11-30
People v. Frye C015620 · 1994-01-19