The People v. Aguilar

Filed 8/28/13; pub order 9/19/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A135516 v. OCTAVIO AGUILAR, (Contra Costa County Super. Ct. No. 51202696) Defendant and Appellant.

Octavio Aguilar appeals from a judgment entered following a felony domestic violence conviction. He does not challenge that conviction on appeal, but instead he contends the trial court imposed various fees, including attorney fees, without making the requisite finding of ability to pay. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged with inflicting corporal injury (Pen. Code, § 273.5, subd. (a))1 on Erika T., a woman who had lived with appellant for 14 years and was the mother of his child. The information further alleged a prior conviction for battery (§ 243) within seven years of the charged offense. (§ 273.5, subd. (e).) A jury found appellant guilty of inflicting corporal injury on Erika T. Separately, the trial court found true the prior battery conviction allegation. The court, after declining to reduce the conviction to a misdemeanor, placed petitioner on probation on the condition that he serve 300 days in county jail. The court imposed, inter alia, the

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

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following fees: (1) Attorney fees of $500 (§ 987.8, subd. (b)); (2) a probation supervision fee not to exceed $75 per month (§ 1203.1b, subd. (a)); and, (3) a “Criminal Assessment fee” of $564. There appears to be no dispute the last item was the “criminal justice administration” fee found in the Government Code. (See Gov. Code, §§ 29550-29550.3.) The trial court noted that appellant might not be required to pay the full amount of these fees and costs. The court stated: “Many of these fees are going to be based on his ability to pay. When he contacts the probation office, he’ll fill out [a] fiscal financial assessment form and he can talk with the probation deputy about his ability to pay these various fees.” (See e.g., § 987.8, subd. (b) [court may order defendant to appear before a county officer to make an inquiry into the ability of the defendant to pay all or a portion of legal assistance provided].) Appellant did not object to any of the fees or to the court’s statement regarding the probation department’s involvement in determining ability to pay. II. DISCUSSION Appellant contends the trial court’s order to pay attorney fees, the probation supervision fee, and the criminal justice administration fee must be reversed because the trial court made no finding of his ability to pay those fees and costs. Each of the pertinent statutes condition imposition of those fees on a finding of ability to pay. Appellant further contends there is no evidence in the record supporting the amount of probation supervision fee and the criminal justice administration fee, which are both limited to the actual costs thereof. (See § 1203.1b, subd. (a) [reasonable cost of probation services and supervision shall not exceed actual average cost thereof]; Gov. Code, § 29550, subd. (a) [fee imposed by county shall not exceed actual administrative costs].) For both contentions appellant relies on People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399. Our Supreme Court recently decided People v. McCullough (2013) 56 Cal.4th 589 (McCullough), in which it held a defendant who failed to contest a booking fee in the trial