F iled 9/27/13 P. v. A llison CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

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 cus tody 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 defen dant’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 bookin g 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. F ACTUAL AND P ROCEDURAL B ACKGROUND

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 offende r 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 al legation 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. D ISC USSION

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 c laim 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 2 9550.2 [“ 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 fin d 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 Ca lifornia 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 f or distinguishing his case from that of McCullough ; nor do

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

III. D ISPOSITION

The judgment is affirmed.

_______________________________ Márquez, J.

WE CONCUR:

______________________________ Elia, Acting P. J.

____________________________________________ Bamattre

- Manoukian, J.