Filed 3/6/14 P. v. Perez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. TAMMI MILES PEREZ, Defendant and Appellant. D062876

(Super. Ct. No. SCE320784)

APPEAL from a judgment of the Superi or Court of San Diego County, John M. Thompson, Judge. Reversed in part, affirm ed in part, and remanded with directions. Michael P. Goldstein, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, William M. Wood, Meagan J. Beale, and Felicity Senoski, De puty Attorneys General, fo r Plaintiff and Respondent.2 Tammi Miles Perez pleaded guilty to pett y theft with three prior convictions in
violation of Penal Code 1 sections 484 and 666, subdiv ision (a). The court imposed various fees and fines, and sentenced Perez to a four-year split sent ence, with two years of local custody and two years of mandatory supervision. Pe rez appeals, contending: (1) the criminal justice administration fee was unauthorized; (2) the administrative screening fee exceeded the applicable ma ximum and the court abused its discretion by imposing the fee without considering her ability to pay; (3 ) the court abused its discretion by imposing the theft fine without consider ing her ability to pay; (4) the court abused its discretion in setting the amount of the restitution fine with out adequately consid ering her ability to pay; and (5) the court abused its discreti on in imposing alcohol -related conditions of mandatory supervision. FACTUAL AND PROCEDUR AL BACKGROUND On April 28, 2012, a loss prevention security guard at a Wal-Mart store in El Cajon observed Perez enter th e store. The security guar d watched her conceal various items in her purse as she wa lked through the store, and then leave the store without attempting to pay for the concealed merchandis e. After she was ou tside, the security guard detained her. Police officers arrived, c ited Perez, then released her. All of the stolen merchandise, valued at $187.84, was recovered. Perez was charged with petty theft in viol ation of section 484 and petty theft with a prior theft-related conviction in violation of section 666. ( §§ 484, 666.) On August 6,

1 All further statutory references are to the Penal Code unless otherwise specified.3 2012, she pleaded guilty to petty theft with three prior convictions and admitted she had served one prior prison term. On September 4, 2012, the court senten ced Perez in accordance with her plea agreement. The court ordered her to pay the following fees and fines: (1) a $154 criminal justice administration fee (Gov. Code, § 29550 .1); (2) a $25 administrative screening fee (§ 1463.7 2 ); (3) a $38 theft fine (§ 1202.5); (4) a $960 restitution fine (§ 1202.4, subd. (b)); (5) a $40 court security fee (§ 1465. 8); and (6) a $30 Immediate Critical Needs Account fee (Gov. Code, § 70373). The court se ntenced Perez to a term of four years, with two years of local confinement and tw o years of mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)(B).) The terms ofmandatory supervision included alcoholrelated conditions. At the sentencing hearing, Perez request ed that some of the fines imposed be converted into volunteer work. She also objected to the alcohol-related conditions of mandatory supervision. The court considered the requests but imposed the fees, fines, and alcohol conditions as recomme nded by the probation department. DISCUSSION
I Booking Fee Perez contends the court erred by imposing the $154 criminal justice administration fee, also known as a bo oking fee, under Govern ment Code section

2 The citation to section 1463.7 was pres umably to section 1463.07, and for the purposes of this opinion, we treat it as such.4 29550.1 because she was cited and released , not arrested, and the fee was therefore unauthorized. The People agree the court erred by imposing a fee under Government Code section 29550.1, and contend the judg ment should be modified to reflect the appropriate fee under Government Code section 29550, subdiv ision (f), imposed on convicted individuals who are cited and released. Government Code secti ons 29550 and 29550.1 gover n the imposition of booking fees. (Gov. Code, §§ 29550, 29550.1.) Govern ment Code section 29550.1 authorizes the imposition of a criminal justice administrati on fee if a person is arrested and then convicted of a criminal offense related to th e arrest. (Gov. Code, § 29550.1.) Section 29550, subdivision (f), imposes a mandatory $10 citation pro cessing fee for "each person cited and released by a ny peace officer in the field or at a jail facility upon conviction of any criminal offense . . . related to the crimin al offense cited in the notice to appear." (Gov. Code, § 29550, subd. (f).) In general, "only those claims properl y raised and preserve d by the parties are reviewable on appeal." ( People v. Scott (1994) 9 Cal.4th 331, 354 ( Scott ).) There is a narrow exception to the waiver rule for unaut horized sentences that "could not lawfully be imposed under any circumstance in the particular case." ( Ibid. ) "A claim that a sentence is unauthorized . . . may be raised fo r the first time on appeal, and is subject to judicial correction whenever th e error comes to the attenti on of the reviewing court." ( People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 ( Dotson ).) Further, "obvious legal errors at sentencing that are correctable without referring to factual findings in the record5 or remanding for further findings are not waivable." ( People v. Smith (2001) 24 Cal.4th 849, 852 ( Smith ).) The court ordered Perez to pay a bookin g fee of $154 under Government Code section 29550.1 and she did not object to im position of that fee. However, Government Code section 29550.1 applies only to individuals who are arrested, and Perez was not arrested. (Gov. Code, § 29550.1.) Theref ore, the booking fee was unauthorized because it could not lawfully be imposed in this ca se and is correctable without referring to factual findings, so it can be raised for the first time on appeal. ( Scott, 9 Cal.4th at p. 354; Smith, supra, 24 Cal.4th at p. 852; Dotson, supra, 16 Cal.4th at p. 554, fn. 6.) Government Code section 29550.1 does not appl y to Perez and the $154 criminal justice administration fee was improper. The People correctly point out that the appropriate book ing fee in Perez's case is set forth in Government Code section 29550 , subdivision (f), which imposes a mandatory $10 processing fee on conviction of a person cited and released but not arrested. (Gov. Code, § 29550, subd. (f).) We conclude the abstract of ju dgment should be amended to provide the proper $10 booking fee under Go vernment Code section 29550, subdivision (f), and the $154 criminal ju stice administration fee under Government Code section 29550.1 should be stricken.
II Administrative Screening Fee Perez contends the court erred by impos ing the $25 administrative screening fee because it exceeded the applic able fee allowed under section 1463.07. She further6 contends the court abused its discretion when it imposed the fee because it did not consider her ability to pay. The People ag ree the court incorrectly imposed the $25 administrative screening fee, and argue the correct fee under section 1463.07 is $10. The People further argue that Pere z's abuse of discretion claim is forfeited because she did not properly raise the issue of her ab ility to pay in the trial court. Section 1463.07 governs the imposition of administrative screening fees. (§ 1463.07.) It imposes a $25 mandatory fe e on each person arrested on conviction of a criminal offense related to the arrest, and a $10 mandatory fee on each person cited and released by a police officer on conviction of a criminal offense related to the crime for which the person was cited. ( Ibid. ) The statute permits consid eration of ability to pay, stating "the court may determine a lesser fee than otherwise provide d in this subdivision upon a showing that the defendant is unable to pay the full amount." ( Ibid. ) A. The Amount of the Ad ministrative Screening Fee The court imposed a $25 administrative sc reening fee on Perez. Perez did not object to the fee during the sentencing heari ng. However, we review the imposition of the $25 administrative screening fee because it was unauthorized and failure to raise the issue does not forfeit the claim on appeal. ( Scott, supra, 9 Cal.4th at p. 354; Dotson,
supra, 16 Cal.4th at 554, fn. 6.) Perez was cited and released by police offi cers after she was caught shoplifting. Accordingly, the appropriate fee under sec tion 1463.07 is $10 because Perez was cited and released. (§ 1463.07.) The imposition of the $25 fee applicable to persons arrested was improper because Perez was not arrested. ( Ibid. ) We conclude the abstract of7 judgment should be amended to provide the appropriate $1 0 administrative screening fee for persons cited and releas ed under section 1463.07. 3 B. Ability to Pay Determination The court imposed the full administrativ e screening fee under section 1463.07, which gives the court discretion to impose a le sser fee where there is a showing that the defendant is unable to pay the full amount. (§ 1463.07.) Perez conte nds the court did not exercise its discretion because it did not co nsider her financial circumstances when it imposed the fee. The People argue Pere z forfeited her claim because she did not specifically object to the fee at the sentencing hearing. The administrative screening fee under section 1463.07 is mandatory, but the court's consideration of a defe ndant's ability to pay the fee is discretionary. (§ 1463.07.) Discretionary sentencing choices, including those requiring the trial court to consider the defendant's ability to pay a fine, are not reviewab le on appeal if the party did not raise the objection in the trial court. ( Smith, supra, 24 Cal.4th at p. 853; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 ( Gibson ).) To preserve a challenge to a fee or fine based on ability to pay, a defendant must object in the trial court; failu re to raise the issue waives the right to contest it on appeal. ( People v. Crittle (2007) 154 Cal.A pp.4th 368, 371; Gibson, at pp. 1468-1469.) At the sentencing hearing, Perez made a general request that some of the fines imposed be converted into volunteer work, but did not specifically object to the

3 The abstract of judgment sh ould also be corrected to re flect the applicable section, 1463.07, not 1463.7.8 administrative screening fee. Her general requ est was insufficient to preserve the issue. We conclude Perez waived her right to ch allenge the court's discretionary sentencing decision to impose the fee in full with out considering her ability to pay.
III Theft Fine Perez contends the court abused its disc retion by not considering her ability to pay before imposing the $38 theft fine under section 1202.5. 4 She contends the court should have lowered the fine because of her fina ncial situation. The People argue Perez forfeited her claim because she did not object to the impositi on of the theft fine at the sentencing hearing. Section 1202.5 imposes a mandatory theft fi ne for individuals convicted of various theft offenses, including petty theft. (§ 12 02.5, subd. (a).) The st atute provides for an inquiry into a defendant's ability to pay, stating: "[i]f th e court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability." ( Ibid. ) An issue requiring consideration of a de fendant's ability to pa y a fine cannot be raised for the first time on appeal. ( Gibson, supra, 27 Cal.App.4th at p. 1468.) A trial

4 The minutes include the theft fine impos ed under section 1202 .5, but the abstract of judgment does not reflect the fine. The ab stract of judgment should be corrected to reflect this fine.9 court's failure to make a finding as to a de fendant's ability to pay a theft fine does not require reversal if the defendant did not raise the issue in the trial court. ( People v. Crittle, supra, 154 Cal.App.4th at p. 371.) The court imposed a $38 theft fine on Per ez. At the sentencing hearing, Perez did not specifically object to the imposition of theft fine, but she did ask if some of the fines could be converted into volunteer work. She contends this general request was sufficient to preserve the issue of the ab ility to pay the theft fine on appeal. We conclude Perez's general request was insufficient to preserve the issue for review on appeal and Perez waived her right to challenge the amount of the theft fine imposed by the court.
IV
Restitution Fine Perez contends the court abused its disc retion by imposing a $960 restitution fine without giving adequate consid eration of her ability to pay. 5 The People argue the court acted within its discretion by setting the amount of the restitution fine within the statutory
range. Section 1202.4 governs the imposition of restitution fine s. (§ 1202.4.) Where a person is convicted of a crim e, a court must impose a res titution fine "unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b ).) "A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitu tion fine. Inability to pay

5 Perez's request for judicial notice of th e San Diego County inmate worker pay in detention facilities is denied.10 may be considered only in in creasing the amount of the res titution fine in excess of the minimum fine . . . ." (§ 1202.4, subd. (c).) The statute also dictates that the amount of the fine will be set at the court's discreti on and commensurate with the seriousness of the offense, but within the range of $240 to $10,000 for a person convicted of a felony. (§ 1202.4, subd. (b)(1).) If th e court sets the amount of the fine in excess of the minimum fine, "the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay . . . ." (§ 1202.4, su bd. (d).) "Consideration of a defendant's inability to pay may include his or her future earning capacity . A defendant shall bear the burden of demonstra ting his or her inability to pay." ( Ibid. ) A defendant must object to a restitution fi ne at the sentencing hearing to preserve the issue on appeal. ( People v. Gamache (2010) 48 Cal.4th 347, 409.) A defendant cannot "assert for the first time on appeal a procedural defect in imposition of a restitution fine, i.e., the trial court's alleged failure to consider de fendant's ability to pay the fine." ( Gibson, supra, 27 Cal.App.4th at p. 1468.) A "d efendant's failure to object in the trial court to the imposition of a restituti on fine constitutes a waiver of the right to complain thereof on appeal." ( Gibson, at p. 1469.) Perez forfeited her objection to the re stitution fine by not asserting it at the sentencing hearing. ( People v. Gamache, supra, 48 Cal.4th at p. 409; Gibson, supra, 48 Cal.App.4th at p. 1469.) Although Perez ma de a general request that the court convert some of her fines into volunteer work, this request was not sufficiently specific to preserve the issue of the calculation of the restitution fine on appeal. Additionally, the court did not abuse its discretion in imposing the fine because it was within the statutory11 limit and Perez did not show he r inability to pay. (§ 1202. 4, subds. (b)(1) & (d).) The record establishes that Perez is capable of being a productive member of society: she has maintained employment in her recent past a nd obtained her GED a nd other certificates while in prison. We conclude the court acte d within its discretion in imposing the $960 restitution fine and Perez waived her right to challenge the am ount of the restitution fine on appeal. At the sentencing hearing the court orde red the defendant "to pay the fines and fees set forth on page 12" of the probation report. Page 12 included the condition that "the defendant pay an additiona l restitution fine pursuant to . . . [section] 1202.45 in the amount of $960 to be stayed and remain so unless defendant's parole is revoked." Defendant and the People at oral argument both agreed that this requirement is unauthorized in this case involving mandato ry supervision. We therefore strike imposition of that restitution fine. However, the abstract of judgment does not include that fine and no further action is required of the trial court in co nnection with the fine.
V Alcohol-Related Terms of Mandatory Supervision Perez contends the court abused its di scretion by imposing the following alcoholrelated conditions of mandatory supervision: do not knowingly use or possess alcohol if directed not to by the probation officer; a ttend self-help meetings if directed by the probation officer; submit to any blood, breath or urine tests whenev er requested by the probation officer, law enforcement officer, or court-ordered treatm ent program; do not be in places, except in the course of employment, where alcohol is the main item for sale;12 and participate in and bear all costs of a continuous alcohol monitoring device if so directed by the probation offi cer. The People argue the tr ial court acted within its discretion by imposing alcohol -related conditions of mandato ry supervision because the conditions are reasonably related to preventing future criminality. Section 1170 gives a court discretion to "suspend ex ecution of a concluding portion of the term selected in the court's discretion, dur ing which time the defendant shall be supervised by the county probatio n officer in accordance with the terms, conditions, and procedures genera lly applicable to persons placed on probation . . . ." (§ 1170, subd. (h)(5)(B)(i).) Th e sentencing court has broad discretion to decide whether probation is suitable and under what conditi ons to "foster rehabilitation and to protect public safety." ( People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, the determination may not be arbitrary or exce ed the bounds of reason, considering the surrounding circumstances. ( Id. at p. 1121.) A probation cond ition 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. Olguin (2008) 45 Cal.4th 375, 379 (quoting People v. Lent (1975) 15 Cal.3d 481, 486.) All three prongs must be met for a reviewing court to invalidate a probation condition. ( Olguin, at p. 379

. ) The alcohol-related conditions restrict c onduct that is not cr iminal, and Perez's current crime was not alcohol-related. Howe ver, the record supports the conclusion the conditions are reasonably related to preventi ng future criminality. The probation report shows that Perez has numerous convictions for petty theft and other offenses starting in13 1988 and continuing to the present offence in 2012. Her offenses include being under the influence of controlled substances and driv ing under the influence, and she has been judicially determined to suffer from drug addi ction. She told the probation officer that she used LSD and PCP as a teenager, she smoked methamphetamine but stopped several years ago; she used heroin and cocaine intravenously until 2008; she "was taking methadone and had been clean for 3 1/2 years"; and she is on a waiting list to enter a drug program offered at the jail. Specifically for alcohol, she told the probation officer that she had "issues with alcoho l consumption" from 1999 until 2004 when she stopped drinking. Further, she stated she suffers from bipolar and other mental disorders for which she takes psychotropic medications, alth ough at the time of th e current offense she was not taking her medications "as instru cted or in a consistent [manner]." The record reflects that Perez has face d serious substance abuse issues for many years, including alcohol abuse, and she has re peatedly demonstrated a lack of ability to refrain from committing petty theft and other o ffenses. Although she claims she has not consumed alcohol since 2004 and may currently be free of illegal drug usage, the court could reasonably assess that he r past history of serious addi ction, her mental disorder, and her ongoing criminality warrants imposition of the al cohol-related conditions. Because Perez is at risk for substance a buse, and alcohol use can decrease impulse control and result in criminality , the court did not abuse its discretion by conditioning her release on prohibitions and monitoring related to alcohol.14 DISPOSITION The $154 criminal justice administration fee im posed under Government Code section 29550.1 is stricken and replaced w ith a $10 fee under Government Code section 29550, subdivision (f). The $25 administra tive screening fee imposed under section 1463.07 is stricken and replac ed by a $10 fee. In all othe r respects, the judgment is affirmed. The trial court is directed to ame nd the abstract of judgment to set forth the provisions of this opinion and to forward a copy of the amended abstract of judgment to the Department of Correc tions and Rehabilitation.

McDONALD, J. WE CONCUR:
HALLER, Acting P. J.

IRION, J.