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Filed 8/28/15 P. v. Monteer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY MONTEER,

Defendant and Appellant.

 A140297

 (Contra Costa County

 Super. Ct. No. 41768571)

After defendant Ricky Monteer pleaded guilty to felony possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the trial court placed him on 

three years’ formal probation and imposed various fines and fees. On appeal, defendant

contends the court improperly delegated to the probation department the responsibility 

for determining the amount of the probation supervision fee (Pen. Code, § 1203.1b) and 

erred in imposing a criminal justice administration (booking) fee (Gov. Code, § 29550, 

subd. (d)(2)) and attorney fees (Pen. Code, § 987.8) without determining his ability to 

pay. 

The California Supreme Court has recently addressed these fees in a trilogy of 

cases: People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar), People v. Trujillo (2015) 

60 Cal.4th 850 (Trujillo) and People v. McCullough (2013) 56 Cal.4th 589 

(McCullough). In light of these cases, we conclude defendant forfeited any complaint 

about the referral of the probation supervision fee because he failed to raise it in the trial 

court. He did, however, object to the imposition of the booking and attorney fees on 

ability to pay grounds. He therefore preserved the issues for appeal, and we now reverse 
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in light of the Supreme Court’s clear directive that a trial court must make an ability to 

pay determination before imposing an unconditional payment obligation. 

BACKGROUND

We recite only the facts relevant to the fee issues defendant raises on appeal. 

At the outset of what became the sentencing hearing, counsel advised the trial 

court that the parties had reached a negotiated disposition of a probation revocation 

matter and the instant criminal case. Defense counsel recited the principal terms of the 

agreement and then objected to the imposition of any fines and fees the court could waive 

on the ground defendant lacked ability to pay. The court responded, “Well, what I’ll do 

is I’ll go through them in the sentencing, and then tell me which actual ones you object 

to, and then my understanding is the probation department is doing the task of gathering 

the information, making a recommendation just like they do for attorney’s fees, we’ll—

whoever does it for attorney’s fees, same process, and then it goes back to a judge and he 

can ask for a hearing if he doesn’t agree with what they are.” 

The court then took defendant’s plea, suspended imposition of sentence, and 

placed defendant on three years of formal probation subject to numerous terms and 

conditions, including that he serve 180 days in the county jail term with credit for time 

served.

The court additionally imposed numerous fines and fees. As to the booking fee, 

the court stated: “There is a criminal justice administration fee of $564. Contact Court 

Collections and Alliance One in order to set up a payment plan for any of these fees and 

fines, and do that as soon as you’re able to.” As to probation costs, the court stated: 

“The cost of probation services to be determined by the probation officer.” As to 

attorney fees, the court stated: “As far as attorney’s fees for the Public Defender, this is 

pre-preliminary hearing, so $200 is assessed. That paperwork will tell you the process to 

go through if, in fact, you want to have a hearing on ability to pay on that.” 

The court then returned to defense counsel’s objection to the fees, asking “as to 

those terms and fees and fines, which specific ones are you objecting to?” Counsel 

replied: “Well, I’m objecting to the 280 [restitution and probation revocation fine 
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amounts], the 564 [booking fee], and the $200 of attorney’s fees based on Mr. Monteer 

not having a present ability to pay.” Counsel made no objection to the referral of the 

probation supervision fee. 

Turning to defendant, the court engaged in the following colloquy:

“The Court: As far as the 564, Mr. Monteer, do you have a job waiting for 

you when you get out?

“The Defendant: No, I don’t. Not currently.

“The Court: When was the last time you worked?

“The Defendant: Uh, long time ago.

“The Court: Okay.

“The Defendant: I’ve been doing time since I was 18 years old, ma’am.

“The Court: Not a lot of expenses then.

“The Defendant: Well. . .

“The Court: Okay. Because you do have, it sounds like, a complicated 

history, I’m going to leave that up to Probation then. I’ll refer you for all 

fees and fines over to Probation to determine ability to pay, and—

“The Defendant: Thank you.

“The Court: —you are ordered to appear before the probation officer 

within 20 days of your release from custody so that the probation officer 

can inquire into your ability to pay these fees.

[¶] . . . [¶]

“The Court: Okay. If you disagree with the probation officer’s 

determination of your ability to pay, you have the right to a hearing before 

this Court. [¶] So do you understand the terms? 

“The Defendant: Yes, ma’am.

“The Court: Do you accept them?

“The Defendant: Yes, ma’am.

“The Court: They will be the order of this Court.” 

The felony order of probation and clerk’s minutes reflect what transpired at the 

hearing—that defendant must pay a fee for “Probation services as determined by 

Probation” and must also pay a $564 booking fee and $200 in attorney fees, the latter not 

being a condition of probation but separately ordered. The felony order of probation 

further notes under “Additional Terms” of probation, that defendant is to “report to 

C.P.O. within 5 days of release from custody.” The clerk’s minutes state in the 

“waiver/plea” section (not the “fines/fees” section) that defendant is to “report to C.P.O. 
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W/I 5 days of release from jail. As to fines and fees must report to CPO W/I 20 days 

from release from jail.” 

DISCUSSION

Probation Supervision Fee

Penal Code section 1203.1b governs probation supervision fees and authorizes the 

trial court to order a defendant to appear before the probation officer for a determination 

of both the amount and manner of payments based on the defendant’s ability to pay. 

(Pen. Code, § 1203.1b, subd. (a).) 

Although the issue of forfeiture for failing to object in the trial court to the 

imposition of probation fees under Penal Code section 1203.1b was unsettled at the time 

the parties submitted their briefs, the Supreme Court recently held in Trujillo and Aguilar

that the forfeiture rule applies. (Trujillo, supra, 60 Cal.4th at p. 858 [“Notwithstanding

the statute’s procedural requirements, we believe to place the burden on the defendant to 

assert noncompliance with [Penal Code] section 1203.1b in the trial court as a 

prerequisite to challenging the imposition of probation costs on appeal is appropriate.”]; 

Aguilar, supra, 60 Cal.4th at pp. 867–868 [applying forfeiture rule “is especially 

appropriate” under Penal Code section 1203.1b, given the multiple chances to object 

during the statutory procedure for determining the appropriate amount of fees].)

Since defendant failed to voice any objection to the referral of probation fees to 

the probation department, he has, under Trujillo and Aguilar, forfeited any complaint 

about the referral on appeal.

Booking Fee

Government Code sections 29550, 29550.1, and 29550.2 authorize the imposition 

of a criminal justice administration fee—a “booking fee”—on an arrestee who is 

ultimately convicted. “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.” (McCullough, supra, 56 Cal.4th at p. 592.) The record reflects defendant was 

arrested by the Contra Costa County Sheriff’s Department. Accordingly, although the 

trial court did not recite the statutory authority for the booking fee it imposed, the parties 
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agree Government Code section 29550, applicable when the arresting agency is a county 

officer, applies in this case.

Government Code section 29550, subdivision (d)(2), provides: “The court shall, 

as a condition of probation, order the convicted person, based on his or her ability to pay, 

to reimburse the county for the criminal justice administration fee, including applicable 

overhead costs.” (Gov. Code, § 29550, subd. (d)(2).) 

In McCullough, the Supreme Court not only stated the statutory language clearly 

afforded the defendant “the right to a determination of his ability to pay the booking fee 

before the court order[s] payment” (McCullough, supra, 56 Cal.4th at pp. 592–593, 

italics added), it further stated its forfeiture ruling was supported by other statutes “where 

the Legislature has similarly required a court to determine if a defendant is able to pay a 

fee before the court may impose it.” (Id. at p. 598.) 

The Supreme Court also explained in McCullough that when a defendant 

challenges a booking fee on appeal on the ground of inability to pay, he or she is 

advancing a sufficiency of the evidence argument. (See McCullough, supra, 56 Cal.4th

at pp. 591 [“Defendant contends that he is entitled to challenge this fee order for 

sufficiency of the evidence for the first time on appeal.”], 597 [“because a court’s 

imposition of a booking fee is confined to factual determinations, a defendant who fails 

to challenge the sufficiency of the evidence at the proceeding when the fee is imposed 

may not raise the challenge on appeal”].) When a trial court orders a defendant to pay a 

specific booking fee and only thereafter refers him or her to probation for an ability to 

pay determination, there is, of course, no evidentiary record undergirding the court’s fee 

order. 

Thus, the clear import of McCullough is that when a defendant does object to the 

imposition of a booking fee, there must be some evidentiary basis before the trial court 

supporting an ability to pay determination (either express or implied)—provided, for 

example, by a sentencing report—before the court orders a defendant to pay a specified 

booking fee. 
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Here, while the trial court began to make an ability to pay inquiry, it stopped when 

it sounded like defendant had “a complicated history” and referred him to the probation 

department. Accordingly, when the court ordered defendant to pay the $564 booking fee, 

it had made no ability to pay determination, and instead, it had referred defendant for an 

after-the-fact examination of his circumstances and a possible adjustment of the imposed 

fee.1 The booking fee must therefore be stricken. (See Pacheco, supra, 187 Cal.App.4th

at pp. 1399–1400 [because trial court imposed specific booking fee without making 

ability to pay determination, no substantial evidence supported fee order; referral of 

defendant to the “ ‘Department of Revenue for a determination of his ability to pay

certain fines and fees’ ” not sufficient to comply with statute].) 

Attorney Fees

Penal Code section 987.8 authorizes the trial court to order a defendant to appear 

before a county officer to make an inquiry into the defendant’s ability to pay all or a 

portion of legal assistance provided. (Pen. Code, § 987.8, subd. (b).) Here, however, the 

trial court ordered defendant to pay a specific amount of fees—$200—before it referred 

him to the probation officer for an ability to pay determination. For essentially the same 

reasons discussed above in connection with the booking fee, the trial court erred in 

ordering defendant to pay the specified fee before any ability to pay determination was 

made.

The Supreme Court specifically discussed attorney fees in Aguilar. In fact, what 

occurred in the trial court in Aguilar is similar to what occurred here. In Aguilar, the trial 

 

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The order in this case is an unequivocal directive that defendant pay a $564 

booking fee and cannot reasonably be interpreted as a mere “conditional” order imposing 

no payment obligation on defendant. (See People v. Pacheco (2010) 187 Cal.App.4th 

1392, 1396 (Pacheco), disapproved on other grounds in McCullough, supra, 56 Cal.4th at 

p. 599 [observing specific fee amounts were not “made conditional” on a subsequent 

ability to pay determination by the Department of Revenue]; and Trujillo, supra, 

60 Cal.4th at p. 856, fn. 3 [whether trial court “actually imposed specific presentence 

investigation and probation supervision fees” might be “debatable” because defendant 

was ordered to pay fees “not to exceed” specified amounts; court nevertheless “assume[d] 

the court’s order fixed the challenged fees”].)
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court imposed numerous fines and fees of specific amounts, including $500 in appointed 

trial counsel fees. (Aguilar, supra, 60 Cal.4th at p. 865.) The court then stated: “ ‘Many 

of these fees are going to be based on his ability to pay. When he contacts the probation 

office, he’ll fill out fiscal financial assessment form [sic] and he can talk with the 

probation deputy about his ability to pay these various fees.’ ” (Id. at p. 865.) Had this 

after-the-fact ability to pay determination been an appropriate way to proceed, the 

Supreme Court would not, of course, have needed to address the issue of forfeiture of 

error. The court went on to hold “that defendant’s failure to challenge the fees in the trial 

court precludes him from doing so on appeal.” (Id. at p. 864.) Indeed, it concluded

applying the forfeiture rule was “especially appropriate” in the case before it because the 

defendant had had two opportunities to object to the fees—at the sentencing hearing 

when the trial court “announced the fees it was imposing” and thereafter at the anticipated 

meeting with the probation officer. (Id. at pp. 867–868, italics added.) 

Since the trial court here ordered defendant to pay $200 in attorney fees before any 

ability to pay determination was made and defendant did object, the fee order is not 

supported by substantial evidence and, like the booking fee, must be stricken.2

DISPOSITION

The judgment is reversed as to the $564 criminal justice administration (booking) 

fee and the $200 in attorney fees, and those fees are ordered stricken. In all other 

respects, the judgment is affirmed.

 

2

 As discussed in footnote 1, supra, the trial court’s order that defendant pay $200 

in defense attorney fees cannot reasonably be read as a mere “conditional” order. Rather, 

it is a specific directive that the court indicated might be revisited after-the-fact, once 

defendant met with the probation department and if he disagreed with its assessment as to 

his ability to pay. 
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_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.