P. v. Cosey CA3

Filed 5/20/13 P. v. Cosey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE, C071253

Plaintiff and Respondent, (Super. Ct. No. 10F03099)

v.

STEFAN DWAYNE COSEY,

Defendant and Appellant.

Convicted of oral copulation with a young minor (Pen. Code, § 288.7) and having served two prior prison terms (Pen. Code, § 667.5, subd. (b)), defendant Stefan Dwayne Cosey was sentenced to 15 years to life in prison. He contends on appeal that the trial court erred in ordering him to pay booking and classification fees (Gov. Code, § 29550.2) without first finding he had the ability to pay those fees. He further contends the People failed to prove the fees were actually incurred. Finally, he argues that he was entitled to a jury determination of both his ability to pay the fees and whether they were actually incurred.

1

Given the nature of defendant‟s claims and the lack of objection below, we dispense with a summary of the facts of defendant‟s conviction and proceed directly to our discussion of his claims. As we will explain, we decline to address his first two contentions and disagree with his last. Accordingly, we shall affirm the judgment. DISCUSSION I Forfeiture Defendant complains of two fees imposed by the trial court at sentencing--a main jail booking fee of $270.17 and a main jail classification fee of $51.34 (see Gov. Code, § 29550.2). At the time of sentencing, defendant did not object to the fees‟ imposition. He now contends these fees must be stricken because the trial court failed to assess and find his ability to pay, and also because the record lacks evidence of proof of “actual” costs. The People argue defendant has forfeited these challenges to the fees at issue because he raised no objection to their imposition or amount in the trial court. We agree. We have repeatedly held that failure to object in the trial court based on lack of ability to pay forfeits the contention of error. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; see also People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [defendant knowledgeable about his ability to pay, and his failure to object to fine recommended by probation officer or offer contrary evidence forfeited claim].) Recently, our Supreme Court agreed with this view. (People v. McCullough (Apr. 22, 2013, S192513) ___ Cal.4th ___.)