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California Supreme Court: Challenge to Booking Fee Order Forfeited Due to Failure to Object in Trial Court

On April 22, 2013, the Supreme Court of California, resolving a conflict among lower state courts, held that a defendant who fails to contest a jail booking fee order when it is imposed forfeits the right to challenge the order on appeal.

After pleading no contest to being a convicted felon in possession of a firearm, Antoine J. McCullough was sentenced to a state prison term of four years. When imposing the sentence, the trial court also ordered McCullough to pay a jail booking fee of $270.17.

On appeal, McCullough argued that although he had not objected when the trial court imposed the booking fee, he was entitled to challenge it for the first time on appeal because the evidence was insufficient to support a finding that he was able to pay the fee.

The Court of Appeal affirmed the booking fee order, holding that McCullough’s failure to object in the trial court meant he had forfeited his right to challenge the imposition of the fee on appeal. The California Supreme Court granted review to resolve a split among the appellate courts on this question.

The Supreme Court initially held, as a matter of statutory construction, that the state law which authorizes the imposition of a booking fee – Government Code § 29550.2, subd. (a) – requires the trial court, before ordering payment, to determine the defendant’s ability to pay. The Court then cited the general rule that a right may be forfeited if the defendant fails to timely assert it, and found no reason to deviate from that rule with respect to McCullough’s challenge to the booking fee order.

Accordingly, the judgment of the Court of Appeal was affirmed. See: People v. McCullough, 56 Cal. 4th 589, 298 P.3d 860 (Cal. 2013).

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