Filed 3/6/15 P. v. Trujillo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040865
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1360776)

         v.

MICHAEL JAMES TRUJILLO,

         Defendant and Appellant.



                                              I. INTRODUCTION
         Defendant Michael James Trujillo pleaded no contest to possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of
burglar’s tools (Pen. Code, § 466),1 and misdemeanor possession of controlled substance
paraphernalia (former Health & Saf. Code, § 11364.1). He also admitted that he had
served four prior prison terms (§ 667.5, subd. (b)). The trial court found that defendant
had one prior strike (§§ 667, subds. (b)-(i), 1170.12). After granting defendant’s Romero
motion,2 the court sentenced defendant to two years in prison and ordered him to pay a
restitution fine of $240 plus an administrative fee of 10 percent for a total of $264.



         1
             All further statutory references are to the Penal Code unless otherwise indicated.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
       On appeal, defendant contends that the 10 percent administrative fee, or $24, is
unauthorized and should be stricken. For reasons that we will explain, we will affirm the
judgment but order the correction of clerical errors in the sentencing minutes and the
abstract of judgment.
                                    II. BACKGROUND
       In 2013, defendant was charged by complaint with possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), possession of
burglar’s tools (§ 466; count 2, a misdemeanor), and possession of controlled substance
paraphernalia (former Health & Saf. Code, § 11364.1; count 3, a misdemeanor). The
complaint further alleged that he had a prior strike (§§ 667, subds. (b)-(i), 1170.12), and
that he had served four prior prison terms (§ 667.5, subd. (b)).
       In January 2014, defendant pleaded no contest to all three counts and admitted that
he had served four prior prison terms. Defendant waived his right to a jury trial on the
issue of whether he had a prior strike.
       On March 14, 2014, the trial court found that defendant had a prior conviction that
qualified as a strike. Upon defendant’s oral Romero motion, the court struck the strike.
The court sentenced defendant to two years in prison for the felony count and imposed
and then stayed the one-year punishment for each of his four prison priors. The court
ordered concurrent 180-day terms for the misdemeanor counts. The court also ordered
defendant to pay various amounts, including a restitution fine of $240 plus an
administrative fee of 10 percent for a total of $264. The minutes from the sentencing
hearing and the abstract of judgment, however, reflect a total restitution fine of $254.
                                     III. DISCUSSION
       Defendant contends that the 10 percent administrative fee, or $24, added by the
trial court to the restitution fine is unauthorized when a defendant, such as him, is
sentenced to prison. He argues that when a defendant is placed on probation and ordered
to pay a restitution fine as a condition of probation, the county is entitled to recover its

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administrative costs of collecting the fine pursuant to section 1202.4, subdivision (l).
According to defendant, when a person is sentenced to prison, the restitution fine is
collected by the Department of Corrections and Rehabilitation from the prisoner’s trust
account (see § 2085.5, subd. (a)), and therefore the county will not incur any costs in
collecting the fine from a defendant sentenced to prison. Defendant further contends that
he has not waived his challenge to the administrative fee by failing to raise it below.
       The Attorney General contends that defendant has waived his claim by failing to
object in the trial court. The Attorney General further contends that the court properly
imposed the fee.
       Without deciding whether defendant has forfeited his claim by failing to raise it
below, we determine that defendant fails to establish that the administrative fee is
unauthorized in this case.
       Section 1202.4, subdivision (b) provides for the imposition of restitution fine in
every case where a person is convicted of a crime. Subdivision (l) of section 1202.4
authorizes the imposition of an administrative fee as follows: “At its discretion, the
board of supervisors of a county may impose a fee to cover the actual administrative cost
of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be
paid, to be added to the restitution fine and included in the order of the court, the
proceeds of which shall be deposited in the general fund of the county.”
       Section 2085.5, subdivision (a) states in relevant part: “In any case in which a
prisoner owes a restitution fine imposed pursuant to . . . subdivision (b) of
Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall
deduct a minimum of 20 percent or the balance owing on the fine amount, whichever is
less, up to a maximum of 50 percent from the wages and trust account deposits of a
prisoner, unless prohibited by federal law, and shall transfer that amount to the California
Victim Compensation and Government Claims Board for deposit in the Restitution Fund



                                              3
in the State Treasury. The amount deducted shall be credited against the amount owing
on the fine. The sentencing court shall be provided a record of the payments.”
       Defendant argues that the administrative fee in subdivision (l) of section 1202.4
may not be added to the restitution fine in his case because the county will not incur any
collection costs with respect to the ordered restitution fine. Defendant’s argument is
based on the collection costs specific to his case. However, consideration of the
particular collection costs in an individual defendant’s case is inconsistent with the
statutorily-provided procedure for adding an administrative fee to a restitution fine.
Pursuant to subdivision (l) of section 1202.4, when a county board of supervisors has
imposed the administrative fee, the trial court must add the administrative fee to the
restitution fine at the time of sentencing. The statute does not require proof in an
individual case that the county will incur collection costs or the amount of those costs
before the trial court orders the administrative fee. The trial court must order the fee at
the time of the defendant’s sentencing, which is necessarily before the county has
incurred any collection costs as to a defendant’s restitution fine.
       Further, although section 2085.5, subdivision (a) requires that the Department of
Corrections and Rehabilitation deduct a percentage “from the wages and trust account
deposits of a prisoner” and that the amount be credited against the restitution fine,
defendant fails to show that this is the only means by which the restitution fine may be
collected once a defendant is sentenced to prison, or that a county will otherwise be
uninvolved in collecting the restitution fine for a defendant sentenced to prison.
Defendant also does not identify a statutory exemption barring the trial court from adding
an administrative fee pursuant to section 1202.4, subdivision (l) where a defendant is
sentenced to prison. Consequently, based on the limited legal authority cited by
defendant, and in the absence of evidence presented below regarding, for example, the
circumstances of the county’s collection of restitution fines, we are not persuaded by
defendant’s contention that a prison sentence necessarily precludes restitution fine

                                              4
collection costs or an administrative fee under section 1202.4, subdivision (l) by the
county.
       Finally, we observe that defendant does not dispute that the Santa Clara County
Board of Supervisors has imposed a 10 percent administrative fee under subdivision (l) of
section 1202.4. Pursuant to this subdivision, we determine that the trial court was
authorized to order defendant to pay an administrative fee of $24 on the $240 restitution
fine. (See People v. Robertson (2009) 174 Cal.App.4th 206, 210 [stating that § 1202.4,
subd. (l) “clearly and unambiguously provides for a 10 percent administrative fee to be
imposed on any ‘restitution fine’ ordered pursuant to section 1202.4, subdivision (b)”].)
We will therefore order the minutes from the sentencing hearing and the abstract of
judgment, both of which reflect a total restitution fine of $254 rather than $264, corrected
accordingly.
                                    IV. DISPOSITION
       The judgment is affirmed. The minutes of the March 14, 2014 sentencing hearing
and the abstract of judgment are ordered corrected to reflect that the restitution fine of
$240 plus the administrative fee of 10 percent under Penal Code section 1202.4 totals
$264. The clerk of the superior court is ordered to send a copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.
