Filed 3/25/15 P. v. Hurst CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PATRICK DORIAN HURST, Defendant and Appellant. D065352

(Super. Ct. No. SCS266869)

APPEAL from a judgment of the Superior Court of San Dieg o County, Alvin E. Green, Jr., Judge. Affirm ed as modified and remanded with directions. Coughlan, Semmer, Fitch & Pott and Ear ll M. Pott; David K. Rankin, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, De puty Attorneys General, for Plaintiff and Respondent.2 A jury convicted Patrick Do rian Hurst of importation of a controlled substance. (Health & Saf. Code, § 11379, subd. (a).) The co urt sentenced him to four years in state prison and imposed different fi nes and fees, including a $615 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) and a $1 54 criminal justice administration fee (booking fee; Gov. Code, § 29550 et seq.) Hurst contends: (1) the court violated his constitutional right to due process by failing to make a finding regarding his ability to pay the booking fee and drug program fee, or to ensure the booking fee did not exceed actual admi nistrative costs incurred; (2) his counsel provided ineffectiv e assistance by failing to obj ect to imposition of the fees without the statutorily required factual finding s; and (3) the court erroneously calculated his actual custody credits. We find merit in the last contention only, and modify his custody credits. As so modified, we affirm the judgment and remand with directions.
FACTUAL AND PROCEDUR AL BACKGROUND Hurst was convicted based on testimony that he tried to cross the border from Mexico to the United States carryi ng 861.4 grams of methamphetamine. At sentencing, the court followed the pr obation department's recommendation and ordered Hurst to pay the booki ng fee and a drug program fee. Hurst did not object to the fees in his sentencing brief or at the se ntencing hearing. The court awarded Hurst 131 actual days and 130 conduct cr edits under Penal Code secti on 4019, for a total of 261 days of presentence credit.3 DISCUSSION
I.
A. Booking Fee Hurst contends that the trial court's failure to find he was able to pay the booking fee was a violation of his procedural due pro cess rights. He further contends that the error was prejudicial and reversible because the record does not contain substantial evidence that he had the means to pay the $154 booking fee.
Hurst relies on Penal Code sec tion 987.8, subdivision (g), 1 which outlines criteria for a court to make an ability to pay determination. He also attempts to distinguish this case from People v. McCullough (2013) 56 Cal.4th 589 ( McCullough ), in which the California Supreme Court held that a defend ant forfeits an appella te challenge to the sufficiency of evidence supporting a jail booking fee imposed under Government Code section 29550.2, subdivision (a) if the fee is not first challenged in the trial court. ( McCullough, at p. 597.)

1 Penal Code section 987.8, subdivision (g)(2) states that a defendant's ability to pay refers to his or her overall capability to re imburse the costs of the legal assistance received, and shall include: "( A) The defendant's present fina ncial position. [¶] (B) The defendant's reasonably discernible future fina ncial position. In no event shall the court consider a period of more than six months from the date of the hearing for the purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defe ndant sentenced to state prison shall be determined not to have a reas onably discernible future fina ncial ability to reimburse the costs of his or her defense. [¶] (C) The lik elihood that the defend ant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear u pon the defendant's fi nancial capability to reimburse the county for the costs of the lega l assistance provided to the defendant."4 Hurst specifically argues: " McCullough . . . is not dispositive of the instant case. First, the Supreme Court only considered the insufficiency of the ev idence of ability to pay under Government Code sec tion[ ] 29550.2, subdivision (a), not the statute's further requirement that the fee not exceed the actual costs [of] a defendant's arrest and booking." While this case was pending on appeal, the California Supreme Court decided People v. Aguilar (2015) 60 Cal.4th 862, which addre ssed the same issue presented here of whether appellate forfeiture rules applied in a case where the "def endant contended the court imposed these [booking] fees without maki ng a finding of his ability to pay (and, in the case of the booking fee, w ithout evidence in the record of the actual costs of the governmental services to be reimbursed throu gh such fees) as required by [case law]." ( Aguilar, at p. 865.) The Aguilar court summarized the defendant's contention as follows: "[D]efendant here relies on the sp ecification in . . . [Penal C ode section] 987.8 of certain procedural requirements not contained in the book ing fee statutes [citati on] in an effort to distinguish our decision in [ McCullough, supra, 56 Cal.4th 589], wh ich held that challenges to the imposition of booking fees ar e forfeited unless made at sentencing. . . . [T]he effort is unavailing." ( Aguilar, supra, 60 Cal.4th at pp. 866-867.) In rejecting the defendant's arguments, the court reasoned that the defendant had an opportunity to object to the fees "when the court, at sentencing , announced the fees it was imposing, which largely tracked those recommended in the pr esentence investigation report"; but the defendant did not avail hims elf of the opportunity. ( Aguilar, at pp. 867-868.)5 McCullough and Aguilar control this case, and therefor e Hurst's appellate claim is forfeited because he likewise failed to first obj ect to the booking fee in the trial court.
B. Drug Program Fee Health and Safety Code section 11372.7 governs the imposition of mandatory drug program fees. The statute requires a court to consider whether the defendant has an ability to pay the drug progra m fee. (Health & Saf. Code, § 11372.7, subd. (b).) If a court finds the defendant does not have an ability to pay th e drug program fee, he or she will not be required to pay it. ( Ibid .) For a defendant to challenge a trial court' s determination of his or her ability to pay a fee on appeal, the defendant must raise the issue in the trial court to preserve the objection on appeal. ( McCullough, supra, 56 Cal.4th at p. 597.) To preserve a challenge to a fee or fine based on ability to pay, a defe ndant must object in the trial court; failure to raise the issue waives the right to contest it on appeal. ( People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Gibson (1994) 27 Cal.App.4t h 1466, 1468-1469.) Where the court's imposition of a fee is based on "factual determinations, a defendant who fails to challenge the sufficiency of the evidence at the proceed ing when the fee is imposed may not raise the challenge on appeal." ( McCullough , at p. 597.) Hurst forfeited his objection to the drug program fee by not asserting it at the sentencing hearing. ( McCullough, supra, 56 Cal.4th at p. 597.)
II. Hurst alternatively argues that he received ineffective assistance of counsel. "To establish ineffective assist ance of counsel, a defendan t must show (1) counsel's6 performance was deficient and fell below an objective standard of reasonableness and (2) it is reasonably probable that a more favorable result would have been reached absent the deficient performance. [Citation.] A reasonabl e probability is a 'proba bility sufficient to undermine confidence in the outcome.' " ( People v. Jones (2013) 217 Cal.App.4th 735, 746-747.) Hurst must show ineffec tive assistance by a prepo nderance of the evidence. ( People v. Powell (2011) 194 Cal.App.4t h 1268, 1298.) " 'Failu re to object rarely constitutes constitutionally ineffec tive legal representation.' " ( People v. Gray (2005) 37 Cal.4th 168, 207.) In consideration of a claim of ineffective assistance of counsel, we are limited to the matters illuminate d by the record on appeal. ( Ibid .) Nothing in the record explains why defense counsel did not object to the imposition of the booking and drug program fees . We disagree that the only satisfactory explanation for trial counsel's failure to obje ct and request a hearing on ability to pay is ineffective assistance. At sentencing, de fense counsel requested the court strike defenant's strike convictions. It is reas onable to conclude that defense counsel was arguing the point important to his client—a re duced prison stay—and that Hurst was not concerned with the fees involve d here. We also note that th e record supports an implied finding of an ability to pay. "Ability to pay does not necessarily require existing employment or cash on hand." ( People v. Staley (1992) 10 Cal.App.4th 782, 785.) In determining whether a defendant has the ab ility to pay a court is not limited to considering a defendant's pres ent ability, but may consider a defendant's ability to pay in the future. This includes the de fendant's ability to obtain prison wages and to earn money7 after his release from custody. (Accord, People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Hurst was 23 years old at the tim e of the hearing, and he had obtained his GED in 2008. There is no basi s in the record for concluding Hurst was unable to work in prison to pay the fees. We c onclude he has not met his burden of establishing ineffective assistance of counsel.
III. Hurst and the People agree that for purpos es of calculating his custody credits, he was incarcerated in county ja il from September 1, 2013, until January 10, 2014, when he was sentenced; however, they disagree on ho w many custody credits he was entitled to receive. We conclude the cour t should have awarde d Hurst credit for 132 days of actual custody and corresponding conduct credits, a nd it should do so on remand. (Pen. Code, § 4019, subd. (f); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)8 DISPOSITION We modify Patrick Dorian Hu rst's custody credits to reflect that he is entitled to 132 actual custody days and corresponding conduct credits under Penal Code section 4012. As so modified, th e judgment is affirmed. On remand, the trial court is directed to amend the abstract of judgment in accordance with this opinion and to forward a certified copy of the amended abstract to the Depart ment of Corrections and Rehabilitation.

O'ROURKE, J. WE CONCUR:
NARES, Acting P. J.

IRION, J.