Filed 5/23/14 P. v. Turner CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067073

                   v.                                         (Super. Ct. Nos. BF145491A, BF145497A,
                                                                             BF145531A)
HAZEL MAE TURNER,
                                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT
         APPEAL from the judgments of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


        Before Levy, Acting P.J., Cornell, J., and Franson, J.
        Hazel Mae Turner appeals from the trial court’s imposition of fees in the amount
of $45 pursuant to former Penal Code section 1205, subdivision (d)1 (now subdivision
(e)).2 Turner contends the $45 fees were unauthorized because they exceed $30, the
maximum amount allowable under the statute. She further contends the court was only
authorized to impose a single $30 fee because she was sentenced in multiple cases on the
same day.
        The Attorney General concedes the maximum allowable fee under the statute is
$30 and requests that the $45 fee be stricken. The Attorney General, however, does not
agree that the trial court erred in imposing a fee in each case. We will order the three $45
fees stricken and corrected to reflect a $30 fee in each case. In all other respects, we
affirm the judgment.
                     FACTUAL AND PROCEDURAL SUMMARY
        On December 5, 2012, the Kern County District Attorney filed a complaint in case
number BF145491A charging Turner with two counts of second degree burglary (§ 460,
subd. (b)) and two counts of forgery (§ 470, subd. (d)) related to offenses that occurred in
July 2012. On December 6, 2012, the district attorney filed a complaint in case number
BF145497A charging Turner with second degree burglary and two counts of forgery
(§ 470, subds. (a) & (d)) related to offenses that occurred in December 2012. On
December 7, 2012, the district attorney filed a complaint in case number BF145531A
charging Turner with second degree burglary related to an offense committed in June
2012.




1       All further statutory references are to the Penal Code unless otherwise indicated.
2     Section 1205, as amended in 2012, redesignated subdivision (d) as subdivision (e)
with no changes. (Stats. 2012, ch. 49, § 1, pp. 2203-2204.)


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       In February 2013, Turner appeared at a plea and sentencing hearing on all three
cases and pled no contest to two counts of forgery in case number BF145491A, to two
counts of forgery in case number BF145497A, and to one count of second degree
burglary in case number BF145531A in exchange for a total term of three years in jail,
dismissal of the remaining charges in the three cases as well as the charges in a fourth
case (BF145905A).
       After entering her no contest pleas, Turner requested immediate sentencing in all
three cases. Pursuant to the plea agreement, the trial court denied Turner’s application
for probation and orally pronounced judgment separately in each case. The trial court
selected one of the forgery convictions in case number BF145491A as the principal term
and imposed the upper term of three years. The court sentenced Turner to the upper term
of three years for the remaining convictions to be served concurrently. The court also
imposed restitution fines (§ 1202.4, subds. (b) & (f)) and fees including an accounts
receivable fee of $45 pursuant to section 1205, subdivision (d) as to each case.
       This appeal ensued.
                                      DISCUSSION
       Turner contends the trial court was not authorized under section 1205,
subdivision (d) to impose multiple fees in excess of $30. Former section 1205,
subdivision (d) (now subdivision (e)) (hereinafter referred to as subdivision (e)),
authorizes the $30 fee to cover the clerical and administrative costs required to process a
defendant’s fine payments. Subdivision (e) provides in part:

       “The defendant shall pay to the clerk of the court or the collecting agency a
       fee for the processing of installment accounts. This fee shall equal the
       administrative and clerical costs, as determined by the board of supervisors,
       or by the court, depending on which entity administers the account. The
       defendant shall pay to the clerk of the court or the collecting agency the fee
       established for the processing of the accounts receivable that are not to be
       paid in installments. The fee shall equal the administrative and clerical
       costs, as determined by the board of supervisors, or by the court, depending
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       on which entity administers the account, except that the fee shall not exceed
       thirty dollars ($30).”
       The parties agree the trial court erred when it imposed $45 fees. We concur and
will order the fee amount reduced to $30.
       The parties disagree, however, on whether the trial court was authorized to impose
a $30 fee for each case. Turner contends subdivision (e) should be construed as
permitting the imposition of a single $30 fee when a defendant is sentenced in multiple
cases on the same day. She reasons that other fee-imposing statutes specify whether the
fee applies to “every conviction” or “per count.” If the Legislature intended for
subdivision (e) to apply to each case, she contends, it knows how to force such a
requirement by express terms. As examples, she cites section 1465.8 which imposes a
court operations charge for “every conviction for a criminal offense” and Government
Code section 70373 which imposes a court facilities “assessment … on every conviction
for a criminal offense.” Since the Legislature did not specify that the fee in subdivision
(e) should be applied to “every conviction” or “in any case,” she further contends,
subdivision (e) is ambiguous and under the doctrine of lenity should be construed in her
favor. Construing it in her favor would authorize the trial court to apply the fee “once to
an aggregate judgment .… ”
       We find no ambiguity in the language of subdivision (e). It requires a $30 fee to
fund the clerical and administrative costs of processing accounts receivable that are not
paid in installments. Unlike the statutes Turner cited as examples, subdivision (e) relates
to accounts, not convictions. Conceivably the person or entity collecting the fee would
set up an account by case number. Where, as here, the criminal cases are not
consolidated under one case number but instead treated separately for purposes of
sentencing, there would be three separate accounts and a separate $30 fee payable for
each account.



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          Our conclusion the trial court properly imposed separate fees for each of Turner’s
three criminal cases is bolstered by the California Supreme Court’s holding in People v.
Soria (2010) 48 Cal.4th 58 (Soria) which─though it pertains to restitution fines under
sections 1202.4, subdivision (b) and 1202.45─is instructive for our purposes. “Section
1202.4(b) requires the [trial] court to impose ‘a separate and additional restitution fine’
… ‘[i]n every case where a person is convicted of a crime,’ absent ‘compelling and
extraordinary reasons for not doing so.’ Section 1202.45 similarly requires ‘an additional
parole revocation restitution fine in the same amount as that imposed pursuant to
subdivision (b) of Section 1202.4,’ ‘[i]n every case where a person is convicted of a
crime and [the] sentence includes a period of parole .…”’ (Soria, supra, 48 Cal.4th at
p. 62.)
          In Soria, the defendant was separately charged in three different cases. He entered
negotiated pleas in all three cases at a single hearing and the trial court ordered restitution
fines in each case. The defendant appealed, arguing that imposing separate fines in each
case was unauthorized. The Court of Appeal agreed. It found the “statutory term ‘in
every case’ to be ambiguous as applied to a plea bargain resolving separately filed
charges.” (Soria, supra, 48 Cal.4th at p. 62.) It also found that “the resolution of
multiple charges in a single plea bargain amounts to an ‘effective consolidation.’” (Id. at
pp. 63-64.) Thus, it held that the “phrase ‘in every case’ in sections 1202.4 and 1202.45
‘may reasonably be construed to include multiple cases that are fully and completely
resolved at the same time under a package plea bargain’” (Soria, supra, 48 Cal.4th at
p. 62) and therefore only one set of restitution fines could be imposed. (Id. at p. 61.)
          The Soria court rejected the Court of Appeal’s conclusion and held: “When
separate pleas are entered in separately charged cases, ‘every case’ plainly means each
case filed against the defendant.” (Soria, supra, 48 Cal.4th at pp. 62-63.) The Court
stated:

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      “When several cases are resolved by a single plea bargain in which the
      defendant enters separate pleas, it is plain that there is one bargain but
      multiple cases.” (Soria, supra, 48 Cal.4th at p. 65.) Absent consolidation,
      “separately filed cases remain separate for purposes of the restitution
      statutes, even when they are jointly resolved at the plea and sentencing
      stages. In the context of sections 1202.4(b) and 1202.45, a ‘case’ is a
      formal criminal proceeding, filed by the prosecution and handled by the
      court as a separate action with its own number.” (Id. at pp. 64-65.)
      “Defendants who commit multiple crimes, and are consequently before the
      court in multiple cases when their pleas are taken, are properly subject to
      multiple fines.” (Id. at p. 66.)
      In our view, the rationale enunciated in Soria applies to the fees imposed under
subdivision (e) in this case. Turner entered into a plea agreement which resolved three
unconsolidated cases at the same hearing. In its oral pronouncement, the trial court
identified each case by its case number in rendering Turner’s sentence. As to each case,
the court imposed a fee under subdivision (e) which it was authorized to do.
                                     DISPOSITION
      The judgments set forth in the minute orders of February 13, 2013, in case
numbers BF145491A, BF145497A, and BF145531A are modified by striking the
accounts receivable fee of $45 in each case and imposing an accounts receivable fee
under Penal Code section 1205, subdivision (e) in the amount of $30 in each case. As
amended, the judgments are affirmed.




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