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Filed 3/7/16 P. v. Ayala CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN AYALA,

Defendant and Appellant.

E061947

(Super.Ct.Nos. RIF1201379 and 

 RIF1409704)

OPINION

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. 

Affirmed in part; reversed in part with directions.

Helen S. Irza, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Kristen 

Chenelia, Parag Agrawal and Kristen A. Hernandez, Deputy Attorneys General, for 

Plaintiff and Respondent.
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INTRODUCTION

Defendant Benjamin Ayala appeals following his plea of guilty to possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and transportation of 

methamphetamine for sale (Health & Saf. Code, § 11379, subd (a)), and his admission of 

associated prior allegations (Health & Saf. Code, § 11370.2, subd. (c), Pen. Code, 

§ 667.5, subd. (b)).

Defendant contends the booking fee imposed must be stricken because the trial 

court did not orally pronounce it at sentencing. He further asserts that a condition of his 

mandatory supervision limiting him to a residence approved by the probation officer 

violates his constitutional rights to travel and free association. In his reply brief, 

defendant asserts for the first time that the booking fee violated constitutional equal 

protection principles, in that defendants who are criminally convicted are similarly 

situated with regard to booking fees regardless of whether they were arrested by a city, 

county, or other law enforcement agency.

We reverse the order imposing the booking fee, and we remand for further 

proceedings on the issue. We find no other error and, in all other respects, we affirm the 

judgment.

FACTS AND PROCEDURAL BACKGROUND

On March 16, 2012, in case No. RIF1201379, defendant pled guilty to possession 

of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted four prison 

priors (Pen. Code, § 667.5, subd. (b)). The trial court advised defendant that his exposure 

would be eight years in state prison; however, the court suspended criminal proceedings, 
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granted formal probation for 36 months, and accepted defendant into a substance abuse 

program under Proposition 36.

On July 23, 2014, a complaint and petition to revoke probation pursuant to Penal 

Code section 1203.2, subdivision (b) was filed in case No. RIF1201379. Defendant was 

charged with one count of possession of methamphetamine (Health & Saf. Code, 

§ 11377, subd. (a)), and six prior prison term allegations (Pen. Code, § 667.5, subd. (b)).

On the same date, a second complaint and petition to revoke probation was filed in 

case No. RIF1409704. Defendant was charged with one count of possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and six prior prison term 

allegations (Pen. Code, § 667.5, subd. (b)).

On July 24, 2014, in case No. RIF1409704, defendant pled guilty to the amended 

charge of transporting methamphetamine for sale (Health & Saf. Code, § 11379, 

subd (a)), and admitted a prior conviction (Health & Saf. Code, §§ 11379.6, 11370.2, 

subd. (c)). He also admitted that his offense was a violation of probation in case 

No. RIF1201379.

That same date, in case No. RIF1409704, defendant was sentenced to six years in 

county jail pursuant to Penal Code section 1170, subdivision (h), with two years 

suspended and two years of mandatory supervision. In case No. RIF1201379, defendant 

was sentenced to 16 months in county jail to be served concurrently to case 

No. RIF1409704.

Additional facts are set forth in the discussion of the issues to which they pertain.
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DISCUSSION

Booking Fee

Defendant contends the booking fee in case No. RIF1409704 must be stricken

because the trial court did not orally pronounce it at sentencing. In his reply brief, 

defendant asserts for the first time that the booking fee violated constitutional equal 

protection principles.

Additional Background

In case No. RIF1409704, defendant signed a sentencing memorandum that 

reflected the imposition to “[p]ay booking fees of $434.08 (GC § 29550).” The 

sentencing memorandum stated, “THE FOLLOWING CHECKED TERMS AND 

CONDITIONS ARE ORDERED BY THE COURT.” In signing the sentencing 

memorandum, defendant acknowledged, “I have read, I understand, and I accept these 

terms and conditions of mandatory supervision on pages one and two.”

Defendant initialed the statement on his plea form, under the heading, 

“CONSEQUENCES OF PLEA,” which stated that he would be ordered to pay a 

restitution fine and that “[t]here are several other fines and fees that will be imposed as a 

result of this guilty plea.” The trial court did not pronounce or refer to any fee at the 

sentencing hearing, but it did impose a prison term in the county jail to be followed by 

“two years of mandatory supervision on the terms indicated.” The minute order in case 

No. RIF1409704 of the sentencing hearing provides that defendant must “[p]ay booking 

fees of $434.08 (GC 29550).”
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Analysis

Defendant argues that the fee award must be stricken because the trial court did 

not orally pronounce it at the hearing, and “[i]t is unlawful for the clerk to include fines 

on a sentencing order that were not expressly orally imposed by the judge. (People v. 

Zackery (2007) 147 Cal.App.4th 380, 387-389.)” However, failure to impose a 

mandatory fee results in an unauthorized sentence that may be corrected on appeal. 

(See People v. Voit (2011) 200 Cal.App.4th 1353, 1373.) Defendant concedes the court 

has the authority to add mandatory fees, but contends the record does not show that the 

fee at issue here was mandatory.

“Three statutes address defendants’ payment of jail booking fees, Government 

Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant 

depends on which governmental entity has arrested a defendant before transporting him 

or her to a county jail. The factors a court considers in determining whether to order the 

fee payment also vary depending on whether or not the court sentences the defendant to 

probation or prison. (See Gov. Code, §§ 29550, subd. (d)(1) & (2), 29550.1, 29550.2, 

subd. (a).)” (People v. McCullough (2013) 56 Cal.4th 589, 592.) Defendant did not 

receive probation; rather, he was sentenced to a term of imprisonment in county jail and 

to a term of mandatory supervision under Penal Code section 1170, subdivision (h). 

A mandatory booking fee under Government Code sections 29550.1 and 29550, 

subdivision (d)(2), therefore does not apply.
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The People note that the complaints and petitions to revoke probation in both 

cases indicate “AGENCY#: P14110678/RPD.” Based on those notations, the People 

assert that the arresting agency was the Riverside Police Department, and a booking fee 

was therefore mandatory under Government Code sections 29550.1 or 29550, 

subdivision (c).

Defendant argues that this court is not authorized to interpret the letters “RPD” as 

standing for the Riverside Police Department. We agree. The selection of the applicable 

statute is “a fact-specific determination.” (People v. McCullough, supra, 56 Cal.4th at 

p. 592.) In the absence of some evidence of what those letters signify, we are hardpressed to ascertain what agency performed the arrest.

Because the record on appeal does not clearly indicate what agency executed the 

arrest and booking of defendant, we cannot know whether a booking fee is mandatory 

under Government Code sections 29550.1 or 29550, subdivision (c), or discretionary 

under Government Code section 29550, subdivisions (a) and (d)(1). We will therefore 

reverse the judgment with respect to the booking fee. On remand, the trial court will 

determine what entity arrested defendant and which Government Code sections apply.

Defendant Has Forfeited His Equal Protection Challenge to the Booking Fee

As noted, defendant raised his equal protection challenge for the first time in his 

reply brief. “Withholding a point until the reply brief deprives the respondent of an 

opportunity to answer it . . . . Hence, a point raised for the first time therein is deemed 

waived and will not be considered, unless good reason is shown for failure to present it 

before. [Citations.]” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.) 
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Defendant has shown no reason for his failure to timely raise the issue. It is therefore 

deemed forfeited. (Ibid.)

Mandatory Supervision Condition

Defendant contends that a condition of his mandatory supervision limiting him to 

a residence approved by the probation officer violates his constitutional rights to travel 

and free association.

Additional Background

Among the conditions of defendant’s mandatory supervision were the following: 

“Inform the probation officer of your place of residence and reside at residence approved 

by the probation officer”; and “[g]ive written notice to the probation officer 24 hours 

before changing your residence and do not move without the approval of the probation 

officer.”

Forfeiture

The People contend that defendant forfeited his objection to the residence 

condition because he did not raise any objection in the trial court.

As a general rule, a defendant must object at sentencing to the reasonableness of a 

probation condition before he may challenge the condition on appeal. However, an 

exception applies when the condition is challenged as unauthorized or in excess of the 

court’s jurisdiction, and the issue involves a pure question of law that can be resolved 

without reference to the trial court record. (People v. Welch (1993) 5 Cal.4th 228, 235.) 

We will address the issue on the merits because it is easily resolved.
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Analysis

Preliminarily, we note that the issue of the validity of a residence-approval 

probation condition is pending in the California Supreme Court. (People v. Schaeffer 

(2012) 208 Cal.App.4th 1, review granted Oct. 31, 2012, S205260 [Fourth Dist., 

Div. Two].)

Mandatory supervision operates like probation and includes the imposition of 

probation- and parole-like conditions. (§ 1170, subd. (h); People v. Martinez (2014) 226 

Cal.App.4th 759, 763-764 [Fourth Dist., Div. Two].) “Trial courts have broad discretion 

to set conditions of probation in order to ‘foster rehabilitation and to protect public safety 

pursuant to Penal Code section 1203.1.’ [Citations.] If it serves these dual purposes, a 

probation condition may impinge upon a constitutional right otherwise enjoyed by the 

probationer, who is ‘not entitled to the same degree of constitutional protection as other 

citizens.’ [Citation.] [¶] However, the trial court’s discretion in setting the conditions of 

probation is not unbounded. A term of probation 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. Lopez (1998) 66 Cal.App.4th 615, 624.)

“If a probation condition serves to rehabilitate and protect public safety, the 

condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, 

who is “not entitled to the same degree of constitutional protection as other citizens.”’ 

[Citation.]” (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) “[W]here an 

otherwise valid condition of probation impinges on constitutional rights, such conditions 
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must be carefully tailored, ‘“reasonably related to the compelling state interest in 

reformation and rehabilitation . . . .”’ [Citations.]” (People v. Bauer (1989) 211 

Cal.App.3d 937, 942 (Bauer).)

In Bauer, upon which defendant relies, the court struck a residence-approval 

condition, which seemed designed to prevent the defendant from living with his parents 

because they were overprotective. Nothing in the record suggested that the defendant’s 

home life contributed to the crimes of which he was convicted (false imprisonment and 

simple assault), or that his home life was reasonably related to future criminality. (Bauer, 

supra, 211 Cal.App.3d at p. 944.) The court concluded that the residence approval 

condition impinged on the right to travel and freedom of association, and it was 

extremely broad since it gave the probation officer the power to forbid the defendant 

from living with or near his parents. (Ibid.)

The present case is distinguishable from Bauer. Defendant pled guilty to 

possessing methamphetamine and transporting methamphetamine for sale. Further, he 

admitted prior drug convictions and that the offenses violated his probation. Defendant 

had an extensive history of prior drug-related convictions, including possession and 

transportation of controlled substances. Under these circumstances, where he lives may 

directly affect his rehabilitation. For example, without any limitations, he could choose 

to live in a residence where drugs are used or sold. Thus, the state’s interest in 

defendant’s rehabilitation is properly served by the residence-approval condition. 

Moreover, probation conditions “should be given ‘the meaning that would appear to a 

reasonable, objective reader.’” (People v. Olguin (2008) 45 Cal.4th 375, 382.) We 
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presume a probation officer will not withhold approval of a residence for an irrational or 

capricious reason. (Id. at p. 383.)

We conclude that the trial court did not abuse its discretion in imposing the 

conditions that defendant, as a term of his mandatory supervision, reside at a residence 

approved by the probation officer and not move without the officer’s prior approval.

DISPOSITION

The booking fee imposed in case No. RIF1409704 is reversed, and the superior 

court is directed to determine whether and in what amount to impose a booking fee.

In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

CODRINGTON

J.