Filed 12/16/14 P. v. Romancorrea CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                   DIVISION TWO



    THE PEOPLE,

         Plaintiff and Respondent,                                       E059568

    v.                                                                   (Super.Ct.No. RIF1210548)

    ANTONIO ROMANCORREA,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.

(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part and remanded with

directions.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.




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       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

       Defendant and appellant Antonio Romancorrea pled guilty to five counts of lewd

acts with a minor under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).) The trial

court sentenced defendant to an aggregate determinate term of 50 years in state prison,

comprised of 10 years for each count, to run consecutively. It also imposed various fees

and fines.

       On appeal,1 defendant contends the court lacked jurisdiction to increase the

amount of certain fines from what was orally pronounced at the sentencing hearing, and

also lacked jurisdiction to impose fees on the abstract of judgment that were not orally

pronounced by the court. The People concede the amount of the fines could not be

increased but contend the court properly imposed the mandatory booking fee. The

People also request modification of the abstract of judgment to correct a clerical error.

We affirm the judgment in part, reverse in part, and remand for further proceedings.

                   FACTUAL AND PROCEDURAL BACKGROUND

       At the sentencing hearing, the trial court orally imposed a conviction restitution

fine of $1,000, or $200 for each count (Pen. Code, § 1202.4), imposed and stayed a

       1  Defendant attempted to appeal on grounds that would affect the validity of his
plea, but the trial court denied his request for a certificate of probable cause. Defendant
responded by filing an amended notice of appeal and indicated he would challenge only
matters not affecting the plea.



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$1,000 parole revocation restitution fine, required to be in the same amount as the

conviction restitution fine (Pen. Code, § 1202.45), and imposed a court facilities, criminal

conviction assessment of $150, or $30 for each count (Gov. Code, § 70373).2 However,

approximately one week after the sentencing hearing, the trial court issued a minute order

that increased the two restitution fines to $5,000 each. The minute order from the

sentencing hearing and the abstract of judgment both reflect a criminal conviction

assessment fee of $120, not $150, and both of these documents also show the parole

revocation restitution fine as being imposed in the amount of $5,000 rather than $1,000.

As to the stayed conviction restitution fine, the sentencing minute order indicates an

amount of $50, while the abstract of judgment indicates defendant is to pay $5,000.

Finally, the sentencing minute order and the abstract of judgment both include a $450.34

booking fee (Gov. Code, § 29550), even though the court made no mention of such a fee

at sentencing.

       Defendant challenges the trial court’s attempt to increase the restitution fees and to

add a booking fee. The People concede that the trial court could not increase the

restitution fees from what it had originally ordered, but contend the court properly

imposed the mandatory booking fee. Further, the People request modification of the

abstract of judgment to correct a clerical error of the amount of the $150 criminal


       2 All further statutory references are to the Government Code, unless otherwise
indicated.




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assessment fee pursuant to section 70373. Defendant concedes the latter point in his

reply brief.

                                        ANALYSIS

       Three fees are at issue in this appeal. We agree that there are problems in each of

these areas, which we separately discuss below for clarity.

       1. Amount of restitution fines

       As indicated ante, the People concede that the trial court could not increase the

amount of either restitution fine in a minute order created after the sentencing hearing.

This is because “[t]he record of the oral pronouncement of the court controls over the

clerk’s minute order.” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 (Farell).)

Because the court orally announced that defendant was to pay $1,000 for each of the

restitution fines, the court lacked the ability to increase those amounts to $5,000. We

therefore direct the superior court to amend the sentencing minute order and abstract of

judgment to correctly reflect the oral pronouncement of the judgment relating to the

$1,000 restitution fines.

       2. Imposition and amount of a booking fee

       The trial court imposed no booking fee at the sentencing hearing. The People

contend a fee may nonetheless be imposed because the court is not prohibited from later

adding mandatory fees. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v.

Voit (2011) 200 Cal.App.4th 1353, 1373.) Defendant concedes the court has the

authority to add mandatory fees, but contends the record on appeal does not show that the



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fee at issue here was mandatory, and that no evidence supports the amount of the fee the

court did imposed.

       Resolution of this dispute requires us to examine the statutory scheme governing

booking fees.

       Sections 29550, 29550.1, and 29550.2 govern fees for processing, or “booking,”

arrested persons into a county jail. To a certain extent, the fees vary depending on the

identity of the arresting agency and the eventual disposition of the person arrested.

       Arrests made by an agent of a city or college, “or other local arresting agency” are

governed by sections 29550, subdivision (a)(1), and 29550.1. Under section 29550,

subdivision (a)(1), the county “may” charge the local arresting agency a booking fee.

When it does so, the arresting agency, provided it qualifies as a city or one of the other

entities described in subdivision (a) of section 29550.1, “is entitled to recover any

criminal justice administration fee imposed by a county from the arrested person if the

person is convicted of any criminal offense related to the arrest.” (§ 29550.1.) Together,

these provisions seem to indicate that a county has discretion regarding whether to

demand a fee from a city or other local agency, but that, if it does impose such a

requirement, the court must order reimbursement of the amount actually imposed. In

addition, “[t]he court shall, as a condition of probation, order the convicted person to

reimburse the [local agency].” (§ 29550.1, italics added.) Section 29550.1 contains no

requirement that the court consider the defendant’s ability to pay.




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       Arrests made by a county agent or officer are governed by section 29550,

subdivision (c). Under this provision, if the person is convicted of a crime related to the

arrest, the county is entitled to recover a booking fee from the arrestee, but the fee may

not exceed the county’s actual administrative costs, including “applicable overhead costs

incurred in booking or otherwise processing arrested persons.” (§ 29550, subd. (c).) As

is also true of section 29550.1, the ability to pay is not mentioned in subdivision (c) of

section 29550.

       Section 29550, subdivision (d)(1) and (2), specify what a court is to do when it has

been notified that the county is entitled to a booking fee. Under subdivision (d)(1), the

judgment of conviction “may” include an order imposing the booking fee. However,

under subdivision (d)(2), if the person convicted is granted probation, the fee becomes

mandatory, although subject to a finding of an ability to pay: “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 . . . fee.” (§ 29550, subd. (d)(2), italics added.)

       Finally, arrests made by “any governmental entity not specified in Section 29550

or 29550.1” are governed by section 29550.2, subdivision (a). In general, with one subtle

difference, the language of this provision is consistent with the language of the others.

The difference is that, under section 29550.2, all convicted persons—those sent to prison

as well as those granted probation—are subject to a mandatory booking fee conditioned

upon their ability to pay. The county may be entitled to recover a booking fee, but

whether it can get an order for the fee depends on the arrestee’s financial condition.



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(§ 29550.2, subd. (a) [judgment to include order for payment of booking costs, “[i]f the

[arrested] person has the ability to pay”].)

       In this case, the People insist that defendant was arrested by the Riverside Police

Department and is therefore subject to section 29550.1, which is phrased in mandatory

language. However, the only evidence they offer to prove this contested fact is the

notation in the upper right-hand corner of the complaint against defendant that the

arresting agency was “P12150797/RPD.” In the absence of some evidence of what this

alphanumeric code signifies, we are hard-pressed to ascertain what agency performed the

arrest. Because the record on appeal does not clearly indicate what agency executed the

arrest and booking of defendant, we cannot know whether the fee is mandatory pursuant

to sections 29550.1 or 29550, subdivision (c), or whether it is discretionary under

subdivisions (a) and (d)(1) of section 29550.3

       In addition, we cannot know in what amount a booking fee is authorized, if one

was authorized at all. Section 29550.1 contains no language limiting the amount of the

fees it authorizes to a city or similar body’s actual expenditures. In contrast, subdivisions

(a) and (c) of section 29550 and subdivision (a) of section 29550.2 all prevent the trial

court from imposing a booking fee that “exceed[s] the actual administrative costs . . . in

booking or otherwise processing arrested persons.” Even if section 29550.1 governs, that


       3Defendant did not receive probation. He therefore cannot be subjected to a
mandatory booking fee under the portions of sections 29550.1 and 29550, subdivision
(d)(2).



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statute only allows the trial court to order the defendant to reimburse a city or similar

local agency for “any criminal justice administration fee imposed by a county.” The

record on appeal contains no evidence of what this amount, if any, might be.

       Finally, if we cannot discern what agency arrested and booked defendant, we

cannot know whether the trial court was obligated to consider his ability to pay. As we

have set forth, section 29550.2 imposes an ability to pay requirement, while sections

29550.1 and 29550, subdivisions (c) and (d)(1), do not.

       For these reasons, we will reverse the judgment with respect to the booking fee.

On remand, the trial court will determine what entity arrested defendant and which of the

above-discussed Government Code sections apply. If a booking fee is discretionary, the

trial court will exercise its judgment as to whether defendant should have to pay this type

of fee and, if so, in what amount. If a booking fee is instead mandatory, the trial court is

to impose one in an amount that is substantiated by evidence in the record. In making

this decision, the trial court is to conduct an inquiry into defendant’s ability to pay if one

is required by the statute that governs based on the trial court’s findings regarding the

arresting agency. The trial court may conduct whatever proceedings are necessary to

accomplish these tasks and make these decisions.

       3. Amount of criminal conviction assessment

       The record reflects, and defendant concedes, that the trial court announced an oral

criminal conviction assessment of $150 total, but that the sentencing minute order and the

abstract of judgment both impose a total assessment of only $120. We have the inherent



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power to correct clerical errors to make records reflect the true facts. (People v. Mitchell

(2001) 26 Cal.4th 181, 185.) As discussed ante, the judgment consists of the court’s oral

pronouncement at the sentencing hearing, not of what a later written recordation might

indicate. (Farell, supra, 28 Cal.4th at p. 384, fn. 2.) Therefore, we direct the superior

court to amend the sentencing minute order and the abstract of judgment to correctly

reflect the orally pronounced judgment and impose the criminal conviction assessment in

the sum of $150.

                                      DISPOSITION

       The amounts of the restitution fines, the omission of a booking fee, and the total

amount of the criminal conviction assessments are reversed. The superior court is

directed to set the restitution fines at $1,000 each; to determine whether and in what

amount to impose a booking fee, as discussed ante; and to increase the criminal

conviction assessment from $120 to $150. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                RAMIREZ
                                                                                         P. J.
We concur:


McKINSTER
                           J.


MILLER
                           J.

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