P. v. Morrow CA4/1

California Court of Appeal · D061945 · 2013-06-11 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE314763
Trial judge: Allan J. Preckel
Outcome: modified — Affirmed as modified.
Area: criminal
Panel: Alex C. McDonald (author), Gilbert Nares, McINTYRE

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:53Z · confidence high

The trial court sentenced Morrow to probation with fines, fees, and custody credits, but the written probation order erroneously understated the custody credits awarded. The Court of Appeal affirmed the judgment as modified, finding most fee challenges forfeited for lack of objection at sentencing, but correcting the custody credits to match the oral award.

Ruling reviewed	Standard	The court	The model
Imposition of $560 penalty assessment “Because Morrow did not challenge at sentencing the $800 fine or, specifically, the $560 penalty assessment portion, we conclude she forfeited or waived any challenge to it.”	unclear	error	agree with court agree with court
Imposition of $154 booking fee “We conclude Morrow forfeited or waived any challenge to the booking fee by not objecting to it at the time of sentencing.”	unclear	error	agree with court agree with court
Imposition of $400 domestic violence fee “We conclude Morrow forfeited or waived any challenge to that fee by not objecting to it at the time of sentencing.”	unclear	error	agree with court agree with court
Imposition of $1,127 probation costs “The trial court's probation order did not order Morrow to pay probation costs of $1,127. Rather, it ordered her to cooperate with the probation officer in completing a financial evaluation as required pursuant to section 1203.1b.”	unclear	not reached	agree with court agree with court
Imposition of attorney fees “Because the court did not order Morrow to pay any attorney fees, we need not address her assertion the evidence is insufficient to support a finding she has the ability to pay those purported attorney fees.”	unclear	not reached	agree with court agree with court
Custody credits calculation “We exercise our discretion to modify the order to reflect the correct number of days of presentence custody credits (i.e., 301 total custody credits).”	unclear	error	agree with court agree with court

Authorities

relied: People v. McCullough (2013) 56 Cal.4th 589 — A defendant forfeits the right to challenge the sufficiency of evidence for a booking fee on appeal if they fail to object at the time of sentencing.
misapplied: People v. Pacheco (2010) 187 Cal.App.4th 1392 — The court states McCullough disapproved Pacheco to the extent it concluded otherwise regarding forfeiture of booking fee challenges.
relied: People v. Castellanos (2009) 175 Cal.App.4th 1524 — Sets forth the seven separate statutory components comprising a penalty assessment that may be imposed in addition to a fine.
relied: People v. Mitchell (2001) 26 Cal.4th 181 — Supports the appellate court's discretion to modify a judgment to correct clerical errors in custody credits.

The appellate opinion: sound with gaps — The opinion correctly applies the forfeiture rule from McCullough to the fees at issue, although it extends the rule to penalty assessments and other fees beyond the specific booking fee context of the precedent. It also correctly identifies that no order for probation costs or attorney fees was actually entered, rendering those claims moot.

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 bench trial, the San Diego Superior Court convicted Morrow of inflicting corporal injury on a cohabitant and assault with a deadly weapon, granted five years' formal probation with 365 days in custody, and imposed an $800 fine (including a $560 penalty assessment), a $154 booking fee, a $400 domestic violence fee, and related orders. The Court of Appeal held her challenges to the penalty assessment, booking fee, and domestic violence fee forfeited for lack of objection (and the assessment correct in any event), found no order to pay probation costs or attorney fees had actually been made, and modified the written probation order to reflect the 301 days of custody credits orally awarded, otherwise affirming.

Ruling reviewed	Standard	The court	The model
Imposition of an $800 fine including a $560 penalty assessment on a $200 base fine “Because the court imposed a $200 base fine, it properly imposed a penalty assessment of $560 (i.e., $28 times 20).”	de novo	correct	agree with court The forfeiture holding is shaky: McCullough rested on the factual nature of ability-to-pay findings, whereas a miscalculated penalty assessment is a legal error that would produce an unauthorized sentence correctable at any time under People v. Scott. But the court reached the merits in the alternative and correctly computed $28 per $10 of fine after the 2010 amendment to Government Code section 76104.7, so $560 on a $200 base fine is right and the result is sound.
Imposition of a $154 booking fee under Government Code section 29550.1 without an express ability-to-pay finding “we believe McCullough's holding and reasoning apply equally to the booking fee here.”	de novo	correct	agree with court Morrow's challenge was to the sufficiency of evidence of ability to pay, precisely the fact-based claim McCullough held forfeited absent objection at sentencing; the difference between sections 29550.1 and 29550.2 does not change that analysis.
Imposition of a $400 domestic violence fee under Penal Code section 1203.097 without an express ability-to-pay finding “McCullough's holding and reasoning apply equally to the domestic violence fee in this case.”	de novo	correct	agree with court Again the claim was a fact-based ability-to-pay challenge raised for the first time on appeal; McCullough's forfeiture reasoning applies by parity. The court gave little independent analysis of section 1203.097's text, but the result follows from McCullough.
Alleged order to pay $1,127 in probation costs under Penal Code section 1203.1b “The court did not make that order and therefore did not err.”	de novo	correct	agree with court The quoted probation order only directed Morrow to cooperate in a financial evaluation and expressly contemplated a later determination and hearing before any judgment for costs; no payment order existed to challenge, and the court correctly declined to address a nonexistent ruling while preserving Morrow's right to contest any future finding.
Alleged order to pay $570 in attorney fees and related due process claim “Because the court did not order Morrow to pay any attorney fees, we need not address her assertion the evidence is insufficient to support a finding she has the ability to pay those purported attorney fees.”	de novo	correct	agree with court The written order merely recited the value of public defender services; absent a reimbursement order under section 987.8 there was nothing to review, and the conclusory due process claim fell with the underlying contentions.
Written probation order reflecting 270 days of presentence custody credits rather than the 301 days orally awarded “We exercise our discretion to modify the order to reflect the correct number of days of presentence custody credits (i.e., 301 total custody credits).”	de novo	error (other)	agree with court The People conceded the discrepancy between the oral award (201 actual plus 100 section 4019 days) and the written order; under People v. Mitchell a reviewing court may correct such a clerical error so the record reflects the judgment actually rendered.

Authorities

relied: People v. McCullough (2013) 56 Cal.4th 589 — A defendant who fails to object at sentencing to the sufficiency of evidence supporting an ability-to-pay finding for a booking fee forfeits the challenge on appeal because the determination is factual.
relied: People v. Castellanos (2009) 175 Cal.App.4th 1524 — Identifies the seven statutory penalty assessments added to a base fine, then totaling $26 per $10 of fine.
relied: People v. Mitchell (2001) 26 Cal.4th 181 — Appellate courts may order correction of clerical errors in the written record so it conforms to the judgment the trial court actually pronounced.
missed: People v. Scott (1994) 9 Cal.4th 331 — An unauthorized sentence, including one not legally permissible under the governing statutes, may be corrected on appeal despite the absence of an objection in the trial court; the court should have addressed whether a miscalculated penalty assessment falls within this exception before extending McCullough's forfeiture rule to a purely legal computation claim.

The appellate opinion: sound with gaps — The court correctly applied McCullough to the fact-based ability-to-pay challenges, correctly read the record to show no probation-cost or attorney-fee order existed, and properly corrected the custody-credit clerical error. It stretched McCullough to a purely legal penalty-assessment calculation claim without addressing the unauthorized-sentence exception to forfeiture, but cured that gap by correctly resolving the computation on the merits.

How this analysis was made · dispute it

Opinion

Filed 6/11/13 P. v. Morrow 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, D061945

Plaintiff and Respondent, v. (Super. Ct. No. SCE314763)

CYNTHIA LEIGH MORROW,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Allan J.

Preckel, Judge. Affirmed as modified.

Russell S. Babcock, 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, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent. Cynthia Leigh Morrow appeals a judgment following her conviction of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a))1 and assault with a deadly weapon (§ 245, subd. (a)(1)). On appeal, she contends the trial court erred by imposing certain fines and fees. She also contends the probation order does not correctly reflect the number of days of presentence custody credits awarded by the court.

FACTUAL AND PROCEDURAL BACKGROUND

Because Morrow's appellate contentions are not based on the specific facts of her offenses, we set forth only a brief summary of those facts. On September 22, 2011, Morrow was living with John Dupuis and had a romantic relationship with him. At about 6:00 or 6:30 a.m., Morrow stabbed Dupuis in the stomach with a knife.

An information charged Morrow with inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). It also alleged she personally used a deadly weapon in committing those offenses (§ 1192.7, subd. (c)(23)). After waiving her right to a jury trial, the court found her guilty of the charged offenses and found true the section 1192.7, subdivision (c)(23) allegations. The court granted her formal probation for five years on the condition she serve 365 days in local custody. It also ordered her to pay certain fines and fees. Morrow timely filed a notice of appeal.

1 All statutory references are to the Penal Code unless otherwise specified.

2 DISCUSSION

Penalty Assessment Morrow contends the trial court erred by imposing a total penalty assessment of $560 instead of $340.

The probation department recommended the trial court order Morrow to pay a total fine of $800, consisting of a $200 base fine, a $40 surcharge, and a $560 penalty assessment. At the sentencing hearing, the court adopted the recommendation and ordered her to pay the $800 fine.

The People assert, and we agree, Morrow has forfeited or waived her contention by not objecting to the fine at the time of sentencing. In People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the California Supreme Court noted it had held on numerous occasions that a defendant may forfeit a constitutional or other right by not timely asserting it. (Id. at p. 593.) Errors that can be easily corrected or avoided should be timely brought to the trial court's attention. (Ibid.) In McCullough, the court addressed the question of whether a defendant forfeited a challenge to a Government Code section 29550.2 booking fee by not objecting at the time of sentencing on the ground there was insufficient evidence to support a finding he had the ability to pay that fee. (Id. at pp. 591, 596-597.) McCullough concluded the defendant's ability to pay the booking fee 3 was a question of fact and not law. (Id. at p. 597.) The court held: "[B]ecause a court's imposition of a booking fee is confined to 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." (Ibid.) McCullough disapproved People v. Pacheco (2010) 187 Cal.App.4th 1392 to the extent it concluded otherwise.

(McCullough, supra, 56 Cal.4th at p. 599.) Accordingly, the court affirmed the judgment. (Id. at p. 600.)

Because Morrow did not challenge at sentencing the $800 fine or, specifically, the $560 penalty assessment portion, we conclude she forfeited or waived any challenge to it.

(McCullough, supra, 56 Cal.4th at pp. 593, 597.) Although the instant issue involves a penalty assessment rather than a booking fee, fines and penalty assessments are sufficiently similar to booking fees to apply McCullough's reasoning in this case, and we conclude a defendant must object at sentencing to a fine, or any penalty assessment portion. If the defendant fails to object, he or she forfeits or waives any objection to the fine or penalty assessment.

In any event, assuming arguendo Morrow did not forfeit or waive her challenge to the penalty assessment, we nevertheless would conclude she has not carried her burden on appeal to show the court erred by imposing a $560 penalty assessment rather than a $340 assessment. As the People assert, People v. Castellanos (2009) 175 Cal.App.4th 1524 sets forth the seven separate statutory components comprising a penalty assessment 4 that may be imposed in addition to a fine. (Id. at pp. 1528-1530.) At that time, those seven statutory assessment penalties resulted in a total of $26 in additional assessments for each $10 amount of fine. (Id. at p. 1530.) Because one statutory component (i.e., Gov. Code, § 76104.7, subd. (a)) was amended in 2010 to increase by $2 the assessments added to each $10 fine, the total amount of the seven additional statutory assessments at the time of Morrow's 2012 sentencing was, as the People assert, $28 per $10 of fines.

Because the court imposed a $200 base fine, it properly imposed a penalty assessment of $560 (i.e., $28 times 20). Therefore, the court properly imposed a total fine of $800, including a $560 penalty assessment.

Booking Fee Morrow contends the evidence is insufficient to support a finding she has the ability to pay the $154 booking fee imposed by the court. She argues Government Code section 29550.1 implicitly requires a finding she had the ability to pay that fee.

We conclude Morrow forfeited or waived any challenge to the booking fee by not objecting to it at the time of sentencing. As discussed above, McCullough held a defendant must object to a booking fee at the time of sentencing and, if he or she does not, then any challenge to it is forfeited or waived. (McCullough, supra, 56 Cal.4th at pp. 593, 597, 599.) Although McCullough involved a booking fee under Government Code section 29550.2 rather than Government Code section 29550.1, as involved in this case, we believe McCullough's holding and reasoning apply equally to the booking fee 5 here. Therefore, we conclude Morrow has forfeited or waived any challenge to the booking fee by not objecting to it at the time of sentencing.

III

Domestic Violence Fee Morrow contends the evidence is insufficient to support a finding she has the ability to pay the $400 domestic violence fee imposed by the court pursuant to section 1203.097. We conclude Morrow forfeited or waived any challenge to that fee by not objecting to it at the time of sentencing. Although McCullough involved a booking fee under Government Code section 29550.2 rather than a domestic violence fee under section 1203.097, McCullough's holding and reasoning apply equally to the domestic violence fee in this case. Therefore, we conclude Morrow has forfeited or waived any challenge to the domestic violence fee by not objecting to it at the time of sentencing.

Probation Costs Morrow contends the evidence is insufficient to support a finding she has the ability to pay $1,127 in probation costs pursuant to section 1203.1b. The People apparently concede there has not been any determination of Morrow's ability to pay probation costs and therefore suggest the matter should be remanded for that determination.

Section 1203.1b provides in pertinent part:

6 "(a) In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer . . . , taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, [and] . . . of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203 . . . . The court shall order the defendant to appear before the probation officer . . . to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer . . . shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.

"(b) When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer . . . ."

The trial court's probation order did not order Morrow to pay probation costs of $1,127. Rather, it ordered her to cooperate with the probation officer in completing a financial evaluation as required pursuant to section 1203.1b. Furthermore, the order contemplated further proceedings before any judgment may be entered ordering her to 7 pay those costs.2 Morrow mistakenly presumes the court at sentencing ordered her to pay $1,127 in probation costs. However, because the trial court in sentencing her did not order her to pay probation costs but merely ordered her to cooperate with the probation officer in completing a financial evaluation pursuant to section 1203.1b, we reject Morrow's assertion the evidence is insufficient to support the court's purported order that she pay $1,127 in probation costs. The court did not make that order and therefore did not err. In the event the probation officer or court makes a determination of her ability to pay in the future and orders her to pay probation costs, Morrow presumably may at that time challenge the finding and order.

Attorney Fees Morrow contends there is insufficient evidence to support a finding she has the ability to pay her attorney fees. Although the written probation order includes a provision finding the value of the public defender's services in representing Morrow was $570, the trial court did not, as the People note, issue any order requiring her to pay those 2 The order stated: "You are ordered to cooperate with the probation officer or their [sic] authorized representative as directed, in the completion of the financial evaluation required under [section] 1203.1b. If it is determined that you have the present ability to repay the county for all or any part of the costs of the pre-sentence investigation and/or costs of probation supervision, the county will request that a judgment be issued against you for these amounts. If you do not agree with the determination, you have a right to a hearing before the court for a decision on your present ability. . . . These costs are presently set at $1,127 for the pre-sentence investigation and up to $99 per month for probation supervision. Payment of any costs so determined shall be to Revenue and Recovery. Payment is not a condition of probation but any judgment obtained may be enforced in the manner of any civil judgment."

8 attorney fees. Because the court did not order Morrow to pay any attorney fees, we need not address her assertion the evidence is insufficient to support a finding she has the ability to pay those purported attorney fees. Therefore, Morrow has not carried her burden on appeal to show the court erred. We also reject Morrow's conclusory contention that because the evidence is insufficient to support findings she has the ability to pay the penalty assessment, booking fee, domestic violence fee, probation costs, and attorney fees, she was denied her constitutional rights to due process of law.

Custody Credits Morrow contends, and the People concede, the trial court's probation order must be modified to reflect the correct number of days of custody credits it awarded her at the time of sentencing. At sentencing, the court awarded Morrow credit for 201 actual days in presentence custody, plus 100 days of section 4019 credits, for a total of 301 days of custody credits. However, the written probation order issued by the court erroneously reflects only 180 actual days of credits, plus 90 days of section 4019 credits, for a total of 270 days of custody credits. Accordingly, that order incorrectly sets forth the amount of Morrow's presentence custody credits. We exercise our discretion to modify the order to reflect the correct number of days of presentence custody credits (i.e., 301 total custody credits). (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

9 DISPOSITION

The judgment is modified to award Morrow presentence custody credits of 201 days of actual custody and 100 days of section 4019 credits, for a total of 301 days of presentence custody credits. As so modified, we affirm the judgment.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

Cites, in this corpus

People v. McCullough S192513 · 2013-04-22
People v. Pacheco H034454 · 2010-09-21
People v. Castellanos B210705 · 2009-07-29
People v. Mitchell S090791 · 2001-07-19