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Filed 3/25/13 P. v. Austin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Amador)

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THE PEOPLE,

Plaintiff and Respondent,

v.

PAMELA AUSTIN,

Defendant and Appellant.

C071327

(Super. Ct. No. 12CR19513)

Following her plea of guilty to bringing an illegal substance or alcohol into a jail 

facility (Pen. Code, § 4573.5), defendant Pamela Austin was ordered to pay a $63.50 

criminal justice administration fee (Gov. Code, § 29550.2). On appeal she contends the 

order must be reversed, as there was no determination she had the ability to pay the fee 

and no evidence supporting that finding. We affirm.

BACKGROUND

Because of the nature of the claim on appeal, a detailed recitation of the 

underlying facts and procedural history is not necessary.
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Defendant entered Mule Creek State Prison with a beer, a straw to consume 

methamphetamine, and .4 gram of methamphetamine. She was charged with bringing 

drugs into a state prison (Pen. Code, § 4573), bringing alcohol into a state prison (Pen. 

Code, § 4573.5), and misdemeanor being under the influence of a controlled substance 

(Health & Saf. Code, § 11550, subd. (a)). It was also alleged she had sustained a prior 

strike conviction. (Pen. Code, §§ 667, subds. (b) - (i), 1170.12, subd. (a)-(d).) Defendant 

pleaded guilty to bringing an illegal substance or alcohol into a jail facility in exchange 

for the midterm sentence. The plea form she signed indicated defendant understood, and 

agreed, that she would be ordered to pay a criminal justice administration fee.

In accordance with the plea, defendant was sentenced to the midterm of two years 

and awarded 25 days of presentence custody credits. Among the various fines and fees, 

the court imposed a $63.50 criminal justice administration fee pursuant to Government 

Code section 29550.2. Defendant did not object to the imposition of the fee. The court 

struck the prior strike conviction and the remaining counts were dismissed.

DISCUSSION

Defendant contends there is insufficient evidence of her ability to pay the criminal 

justice administration fee, and thus the fee must be stricken. She contends her claim is

cognizable on appeal despite her guilty plea, because she is challenging the sufficiency of 

the evidence, a challenge not forfeited by her failure to object in the trial court. The 

Attorney General disagrees, arguing defendant’s failure to object below forfeited her 

claim on appeal. We agree with the Attorney General.

The right to appellate review of a nonjurisdictional sentencing issue is forfeited if 

it is not raised in the trial court. (People v. Gonzalez (2003) 31 Cal.4th 745, 751–755; 

People v. Scott (1994) 9 Cal.4th 331, 356.) We have previously applied this rule and held 

an objection must be made in the trial court to the imposition of fines based on the 

defendant's ability to pay or any claim of error on this basis is forfeited for purposes of 

appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine—Pen. 
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Code, § 1202.5, subd. (a)]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail 

booking fee—Gov. Code, § 29550.2].) As noted by defendant, the Sixth Appellate 

District has reached a contrary conclusion (People v. Pacheco (2010) 187 Cal.App.4th 

1392, 1397), and the California Supreme Court has agreed to resolve the conflict (see 

People v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29, 2011, 

S192513). However, until the Supreme Court issues further guidance, we continue to 

adhere to our previous holdings that a failure to object to a fee or fine in the trial court 

forfeits the issue. Accordingly, we deem the issue forfeited here.

DISPOSITION

The judgment is affirmed.

 RAYE , P. J.

We concur:

 NICHOLSON , J.

 DUARTE , J.