Filed 3/6/14 P. v. Perez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062876
Plaintiff and Respondent,
v. (Super. Ct. No. SCE320784)
TAMMI MILES PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Reversed in part, affirmed in part, and remanded with directions.
Michael P. Goldstein, 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, William M. Wood, Meagan J.
Beale, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Tammi Miles Perez pleaded guilty to petty theft with three prior convictions in
violation of Penal Code1 sections 484 and 666, subdivision (a). The court imposed
various fees and fines, and sentenced Perez to a four-year split sentence, with two years
of local custody and two years of mandatory supervision. Perez appeals, contending: (1)
the criminal justice administration fee was unauthorized; (2) the administrative screening
fee exceeded the applicable maximum and the court abused its discretion by imposing the
fee without considering her ability to pay; (3) the court abused its discretion by imposing
the theft fine without considering her ability to pay; (4) the court abused its discretion in
setting the amount of the restitution fine without adequately considering her ability to
pay; and (5) the court abused its discretion in imposing alcohol-related conditions of
mandatory supervision.
FACTUAL AND PROCEDURAL BACKGROUND
On April 28, 2012, a loss prevention security guard at a Wal-Mart store in El
Cajon observed Perez enter the store. The security guard watched her conceal various
items in her purse as she walked through the store, and then leave the store without
attempting to pay for the concealed merchandise. After she was outside, the security
guard detained her. Police officers arrived, cited Perez, then released her. All of the
stolen merchandise, valued at $187.84, was recovered.
Perez was charged with petty theft in violation of section 484 and petty theft with
a prior theft-related conviction in violation of section 666. (§§ 484, 666.) On August 6,
1 All further statutory references are to the Penal Code unless otherwise specified.
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2012, she pleaded guilty to petty theft with three prior convictions and admitted she had
served one prior prison term.
On September 4, 2012, the court sentenced Perez in accordance with her plea
agreement. The court ordered her to pay the following fees and fines: (1) a $154 criminal
justice administration fee (Gov. Code, § 29550.1); (2) a $25 administrative screening fee
(§ 1463.72); (3) a $38 theft fine (§ 1202.5); (4) a $960 restitution fine (§ 1202.4, subd.
(b)); (5) a $40 court security fee (§ 1465.8); and (6) a $30 Immediate Critical Needs
Account fee (Gov. Code, § 70373). The court sentenced Perez to a term of four years,
with two years of local confinement and two years of mandatory supervision. (Pen.
Code, § 1170, subd. (h)(5)(B).) The terms of mandatory supervision included alcohol-
related conditions.
At the sentencing hearing, Perez requested that some of the fines imposed be
converted into volunteer work. She also objected to the alcohol-related conditions of
mandatory supervision. The court considered the requests but imposed the fees, fines,
and alcohol conditions as recommended by the probation department.
DISCUSSION
I
Booking Fee
Perez contends the court erred by imposing the $154 criminal justice
administration fee, also known as a booking fee, under Government Code section
2 The citation to section 1463.7 was presumably to section 1463.07, and for the
purposes of this opinion, we treat it as such.
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29550.1 because she was cited and released, not arrested, and the fee was therefore
unauthorized. The People agree the court erred by imposing a fee under Government
Code section 29550.1, and contend the judgment should be modified to reflect the
appropriate fee under Government Code section 29550, subdivision (f), imposed on
convicted individuals who are cited and released.
Government Code sections 29550 and 29550.1 govern the imposition of booking
fees. (Gov. Code, §§ 29550, 29550.1.) Government Code section 29550.1 authorizes the
imposition of a criminal justice administration fee if a person is arrested and then
convicted of a criminal offense related to the arrest. (Gov. Code, § 29550.1.) Section
29550, subdivision (f), imposes a mandatory $10 citation processing fee for "each person
cited and released by any peace officer in the field or at a jail facility upon conviction of
any criminal offense . . . related to the criminal offense cited in the notice to appear."
(Gov. Code, § 29550, subd. (f).)
In general, "only those claims properly raised and preserved by the parties are
reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) There is a
narrow exception to the waiver rule for unauthorized sentences that "could not lawfully
be imposed under any circumstance in the particular case." (Ibid.) "A claim that a
sentence is unauthorized . . . may be raised for the first time on appeal, and is subject to
judicial correction whenever the error comes to the attention of the reviewing court."
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 (Dotson).) Further, "obvious legal
errors at sentencing that are correctable without referring to factual findings in the record
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or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal.4th
849, 852 (Smith).)
The court ordered Perez to pay a booking fee of $154 under Government Code
section 29550.1 and she did not object to imposition of that fee. However, Government
Code section 29550.1 applies only to individuals who are arrested, and Perez was not
arrested. (Gov. Code, § 29550.1.) Therefore, the booking fee was unauthorized because
it could not lawfully be imposed in this case and is correctable without referring to
factual findings, so it can be raised for the first time on appeal. (Scott, 9 Cal.4th at
p. 354; Smith, supra, 24 Cal.4th at p. 852; Dotson, supra, 16 Cal.4th at p. 554, fn. 6.)
Government Code section 29550.1 does not apply to Perez and the $154 criminal justice
administration fee was improper.
The People correctly point out that the appropriate booking fee in Perez's case is
set forth in Government Code section 29550, subdivision (f), which imposes a mandatory
$10 processing fee on conviction of a person cited and released but not arrested. (Gov.
Code, § 29550, subd. (f).) We conclude the abstract of judgment should be amended to
provide the proper $10 booking fee under Government Code section 29550, subdivision
(f), and the $154 criminal justice administration fee under Government Code section
29550.1 should be stricken.
II
Administrative Screening Fee
Perez contends the court erred by imposing the $25 administrative screening fee
because it exceeded the applicable fee allowed under section 1463.07. She further
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contends the court abused its discretion when it imposed the fee because it did not
consider her ability to pay. The People agree the court incorrectly imposed the $25
administrative screening fee, and argue the correct fee under section 1463.07 is $10. The
People further argue that Perez's abuse of discretion claim is forfeited because she did not
properly raise the issue of her ability to pay in the trial court.
Section 1463.07 governs the imposition of administrative screening fees.
(§ 1463.07.) It imposes a $25 mandatory fee on each person arrested on conviction of a
criminal offense related to the arrest, and a $10 mandatory fee on each person cited and
released by a police officer on conviction of a criminal offense related to the crime for
which the person was cited. (Ibid.) The statute permits consideration of ability to pay,
stating "the court may determine a lesser fee than otherwise provided in this subdivision
upon a showing that the defendant is unable to pay the full amount." (Ibid.)
A. The Amount of the Administrative Screening Fee
The court imposed a $25 administrative screening fee on Perez. Perez did not
object to the fee during the sentencing hearing. However, we review the imposition of
the $25 administrative screening fee because it was unauthorized and failure to raise the
issue does not forfeit the claim on appeal. (Scott, supra, 9 Cal.4th at p. 354; Dotson,
supra, 16 Cal.4th at 554, fn. 6.)
Perez was cited and released by police officers after she was caught shoplifting.
Accordingly, the appropriate fee under section 1463.07 is $10 because Perez was cited
and released. (§ 1463.07.) The imposition of the $25 fee applicable to persons arrested
was improper because Perez was not arrested. (Ibid.) We conclude the abstract of
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judgment should be amended to provide the appropriate $10 administrative screening fee
for persons cited and released under section 1463.07.3
B. Ability to Pay Determination
The court imposed the full administrative screening fee under section 1463.07,
which gives the court discretion to impose a lesser fee where there is a showing that the
defendant is unable to pay the full amount. (§ 1463.07.) Perez contends the court did not
exercise its discretion because it did not consider her financial circumstances when it
imposed the fee. The People argue Perez forfeited her claim because she did not
specifically object to the fee at the sentencing hearing.
The administrative screening fee under section 1463.07 is mandatory, but the
court's consideration of a defendant's ability to pay the fee is discretionary. (§ 1463.07.)
Discretionary sentencing choices, including those requiring the trial court to consider the
defendant's ability to pay a fine, are not reviewable on appeal if the party did not raise the
objection in the trial court. (Smith, supra, 24 Cal.4th at p. 853; People v. Gibson (1994)
27 Cal.App.4th 1466, 1468 (Gibson).) 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;
Gibson, at pp. 1468-1469.)
At the sentencing hearing, Perez made a general request that some of the fines
imposed be converted into volunteer work, but did not specifically object to the
3 The abstract of judgment should also be corrected to reflect the applicable section,
1463.07, not 1463.7.
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administrative screening fee. Her general request was insufficient to preserve the issue.
We conclude Perez waived her right to challenge the court's discretionary sentencing
decision to impose the fee in full without considering her ability to pay.
III
Theft Fine
Perez contends the court abused its discretion by not considering her ability to pay
before imposing the $38 theft fine under section 1202.5.4 She contends the court should
have lowered the fine because of her financial situation. The People argue Perez
forfeited her claim because she did not object to the imposition of the theft fine at the
sentencing hearing.
Section 1202.5 imposes a mandatory theft fine for individuals convicted of various
theft offenses, including petty theft. (§ 1202.5, subd. (a).) The statute provides for an
inquiry into a defendant's ability to pay, stating: "[i]f the court determines that the
defendant has the ability to pay all or part of the fine, the court shall set the amount to be
reimbursed and order the defendant to pay that sum to the county in the manner in which
the court believes reasonable and compatible with the defendant's financial ability."
(Ibid.)
An issue requiring consideration of a defendant's ability to pay a fine cannot be
raised for the first time on appeal. (Gibson, supra, 27 Cal.App.4th at p. 1468.) A trial
4 The minutes include the theft fine imposed under section 1202.5, but the abstract
of judgment does not reflect the fine. The abstract of judgment should be corrected to
reflect this fine.
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court's failure to make a finding as to a defendant's ability to pay a theft fine does not
require reversal if the defendant did not raise the issue in the trial court. (People v.
Crittle, supra, 154 Cal.App.4th at p. 371.)
The court imposed a $38 theft fine on Perez. At the sentencing hearing, Perez did
not specifically object to the imposition of theft fine, but she did ask if some of the fines
could be converted into volunteer work. She contends this general request was sufficient
to preserve the issue of the ability to pay the theft fine on appeal. We conclude Perez's
general request was insufficient to preserve the issue for review on appeal and Perez
waived her right to challenge the amount of the theft fine imposed by the court.
IV
Restitution Fine
Perez contends the court abused its discretion by imposing a $960 restitution fine
without giving adequate consideration of her ability to pay.5 The People argue the court
acted within its discretion by setting the amount of the restitution fine within the statutory
range.
Section 1202.4 governs the imposition of restitution fines. (§ 1202.4.) Where a
person is convicted of a crime, a court must impose a restitution fine "unless it finds
compelling and extraordinary reasons for not doing so and states those reasons on the
record." (§ 1202.4, subd. (b).) "A defendant's inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine. Inability to pay
5 Perez's request for judicial notice of the San Diego County inmate worker pay in
detention facilities is denied.
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may be considered only in increasing the amount of the restitution fine in excess of the
minimum fine . . . ." (§ 1202.4, subd. (c).) The statute also dictates that the amount of
the fine will be set at the court's discretion and commensurate with the seriousness of the
offense, but within the range of $240 to $10,000 for a person convicted of a felony.
(§ 1202.4, subd. (b)(1).) If the court sets the amount of the fine in excess of the minimum
fine, "the court shall consider any relevant factors, including, but not limited to, the
defendant's inability to pay . . . ." (§ 1202.4, subd. (d).) "Consideration of a defendant's
inability to pay may include his or her future earning capacity. A defendant shall bear the
burden of demonstrating his or her inability to pay." (Ibid.)
A defendant must object to a restitution fine at the sentencing hearing to preserve
the issue on appeal. (People v. Gamache (2010) 48 Cal.4th 347, 409.) A defendant
cannot "assert for the first time on appeal a procedural defect in imposition of a
restitution fine, i.e., the trial court's alleged failure to consider defendant's ability to pay
the fine." (Gibson, supra, 27 Cal.App.4th at p. 1468.) A "defendant's failure to object in
the trial court to the imposition of a restitution fine constitutes a waiver of the right to
complain thereof on appeal." (Gibson, at p. 1469.)
Perez forfeited her objection to the restitution fine by not asserting it at the
sentencing hearing. (People v. Gamache, supra, 48 Cal.4th at p. 409; Gibson, supra, 48
Cal.App.4th at p. 1469.) Although Perez made a general request that the court convert
some of her fines into volunteer work, this request was not sufficiently specific to
preserve the issue of the calculation of the restitution fine on appeal. Additionally, the
court did not abuse its discretion in imposing the fine because it was within the statutory
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limit and Perez did not show her inability to pay. (§ 1202.4, subds. (b)(1) & (d).) The
record establishes that Perez is capable of being a productive member of society: she has
maintained employment in her recent past and obtained her GED and other certificates
while in prison. We conclude the court acted within its discretion in imposing the $960
restitution fine and Perez waived her right to challenge the amount of the restitution fine
on appeal.
At the sentencing hearing the court ordered the defendant "to pay the fines and
fees set forth on page 12" of the probation report. Page 12 included the condition that
"the defendant pay an additional restitution fine pursuant to . . . [section] 1202.45 in the
amount of $960 to be stayed and remain so unless defendant's parole is revoked."
Defendant and the People at oral argument both agreed that this requirement is
unauthorized in this case involving mandatory supervision. We therefore strike
imposition of that restitution fine. However, the abstract of judgment does not include
that fine and no further action is required of the trial court in connection with the fine.
V
Alcohol-Related Terms of Mandatory Supervision
Perez contends the court abused its discretion by imposing the following alcohol-
related conditions of mandatory supervision: do not knowingly use or possess alcohol if
directed not to by the probation officer; attend self-help meetings if directed by the
probation officer; submit to any blood, breath or urine tests whenever requested by the
probation officer, law enforcement officer, or court-ordered treatment program; do not be
in places, except in the course of employment, where alcohol is the main item for sale;
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and participate in and bear all costs of a continuous alcohol monitoring device if so
directed by the probation officer. The People argue the trial court acted within its
discretion by imposing alcohol-related conditions of mandatory supervision because the
conditions are reasonably related to preventing future criminality.
Section 1170 gives a court discretion to "suspend execution of a concluding
portion of the term selected in the court's discretion, during which time the defendant
shall be supervised by the county probation officer in accordance with the terms,
conditions, and procedures generally applicable to persons placed on probation . . . ."
(§ 1170, subd. (h)(5)(B)(i).) The sentencing court has broad discretion to decide whether
probation is suitable and under what conditions to "foster rehabilitation and to protect
public safety." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, the
determination may not be arbitrary or exceed the bounds of reason, considering the
surrounding circumstances. (Id. at p. 1121.) A probation condition is invalid if it " ' "(1)
has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . ." ' " (People v. Olguin (2008) 45 Cal.4th
375, 379 (quoting People v. Lent (1975) 15 Cal.3d 481, 486.) All three prongs must be
met for a reviewing court to invalidate a probation condition. (Olguin, at p. 379.)
The alcohol-related conditions restrict conduct that is not criminal, and Perez's
current crime was not alcohol-related. However, the record supports the conclusion the
conditions are reasonably related to preventing future criminality. The probation report
shows that Perez has numerous convictions for petty theft and other offenses starting in
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1988 and continuing to the present offence in 2012. Her offenses include being under the
influence of controlled substances and driving under the influence, and she has been
judicially determined to suffer from drug addiction. She told the probation officer that
she used LSD and PCP as a teenager, she smoked methamphetamine but stopped several
years ago; she used heroin and cocaine intravenously until 2008; she "was taking
methadone and had been clean for 3 1/2 years"; and she is on a waiting list to enter a drug
program offered at the jail. Specifically for alcohol, she told the probation officer that
she had "issues with alcohol consumption" from 1999 until 2004 when she stopped
drinking. Further, she stated she suffers from bipolar and other mental disorders for
which she takes psychotropic medications, although at the time of the current offense she
was not taking her medications "as instructed or in a consistent [manner]."
The record reflects that Perez has faced serious substance abuse issues for many
years, including alcohol abuse, and she has repeatedly demonstrated a lack of ability to
refrain from committing petty theft and other offenses. Although she claims she has not
consumed alcohol since 2004 and may currently be free of illegal drug usage, the court
could reasonably assess that her past history of serious addiction, her mental disorder,
and her ongoing criminality warrants imposition of the alcohol-related conditions.
Because Perez is at risk for substance abuse, and alcohol use can decrease impulse
control and result in criminality, the court did not abuse its discretion by conditioning her
release on prohibitions and monitoring related to alcohol.
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DISPOSITION
The $154 criminal justice administration fee imposed under Government Code
section 29550.1 is stricken and replaced with a $10 fee under Government Code section
29550, subdivision (f). The $25 administrative screening fee imposed under section
1463.07 is stricken and replaced by a $10 fee. In all other respects, the judgment is
affirmed. The trial court is directed to amend the abstract of judgment to set forth the
provisions of this opinion and to forward a copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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