Filed 9/27/13 P. v. Allison CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS MALCOLM ALLISON,

Defendant and Appellant.

 H038605

 (Santa Clara County

 Super. Ct. No. C1121959)

Defendant Dennis Malcolm Allison pleaded no contest to failure to register as a 

sex offender. (Pen. Code, § 290.011, subd. (a).)1 He also admitted an enhancement 

allegation that he was out of custody on bail at the time of the offense. (§ 12022.1.) The 

trial court imposed felony probation that included a one-year term in county jail deemed 

served since defendant had already earned 404 days of presentence custody credits. The 

court ordered defendant’s release and, in accordance with the plea agreement, terminated 

his probation. As part of the judgment, the court imposed various fees, including a 

criminal justice administration “booking fee” of $129.75. 

On appeal, defendant contends the booking fee must be stricken because the 

evidence was insufficient to show his ability to pay. Because defendant failed to object 

 

1

Subsequent undesignated statutory references are to the Penal Code.
2

to the fee at his sentencing hearing, however, we conclude he has forfeited his claim 

under People v. McCullough (2013) 56 Cal.4th 589 (McCullough).

2

 

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 12, 2011, Los Gatos police arrested defendant on a bench warrant. 

Evidence presented at his preliminary hearing showed defendant had been notified of his 

duty to register as a sex offender following his conviction for a prior offense. A 

custodian of records testified that database records showed defendant had failed to 

register with any law enforcement agency in California. 

Defendant pleaded no contest to the charge, and admitted an allegation that he was 

out of custody on bail at the time of the offense. At sentencing, the trial court imposed, 

inter alia, a criminal justice administration booking fee of $129.75. (Gov. Code, 

§ 29550.1.) Defendant lodged no objection to this fee.

II. DISCUSSION

Defendant contends the evidence is insufficient to show his ability to pay the 

criminal justice administration booking fee.3 Respondent contends he forfeited his claim 

by failing to object. Defendant concedes he failed to object, but argues his claim is not 

forfeited, relying on People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco) (claim of 

 

2 Defendant filed his opening brief before the California Supreme Court issued 

McCullough. Defendant’s brief acknowledged that McCullough was pending. Defendant 

did not file a reply brief.

3 Government Code section 29550.1 contains no explicit requirement of a finding 

of ability to pay. (Cf. Gov. Code, §§ 29550, subd. (d)(2) [booking fee shall be based on 

defendant’s ability to pay] and 29550.2 [“If the person has the ability to pay, a judgment 

of conviction shall contain an order for payment of the amount of the criminal justice 

administration fee by the convicted person”].) Defendant contends an ability-to-pay 

requirement is implicit in section 29550.1 because defendants under that statute are 

similarly situated to defendants who are required to pay booking fees under sections 

29550(d)(2) and 29550.2, two similar statutes that contain explicit ability-to-pay 

requirements. Because we find his claim forfeited, we need not reach that issue.
3

insufficient evidence of ability to pay criminal justice administration booking fee is not 

forfeited by failure to object). 

Subsequent to Pacheco, the California Supreme Court held that a failure to object 

to a booking fee for insufficient evidence of the ability to pay constitutes a forfeiture of 

the claim. (McCullough, supra, 56 Cal.4th at p. 600 [disapproving Pacheco].) 

Defendant identifies no basis for distinguishing his case from that of McCullough; nor do 

we. Accordingly, we must reject defendant’s claim.

III. DISPOSITION

The judgment is affirmed.

_______________________________

Márquez, J.

WE CONCUR:

______________________________

 Elia, Acting P. J.

____________________________________________

 Bamattre-Manoukian, J.