Filed 12/11/13 P. v. Labiano CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039297
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. B1259861)

         v.

RODOLFO CUARESMA LABIANO,

         Defendant and Appellant.



         Pursuant to a plea bargain, defendant Rodolfo Cuaresma Labiano pleaded no
contest to 12 charges: 10 counts of lewd and lascivious acts upon a child under the age of
14 (Pen. Code, § 288, subd. (a))1 and two counts of lewd and lascivious acts upon a child
of 14 or 15 years and at least 10 years younger than him (§ 288, subd. (c)(1)). The plea
agreement provided for a total prison term of 27 years and four months. At the time of
sentencing, the trial court imposed the agreed-upon sentence. The court also imposed a
$200 "restitution fund fine" and imposed, but suspended, an "additional restitution fine"
in the "same amount." The sentencing minute order, however, reflects a restitution fine
of $264 (impliedly $240 plus a 10 percent administrative fee of $24) and an additional
restitution fine, suspended, of $240.


1
         All further statutory references are to the Penal Code unless otherwise stated.
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          On appeal, defendant asserts that the restitution fines must be reduced to $200,
consistent with the court's oral pronouncement of judgment. He also insists that the
impliedly-included administrative fee must be entirely eliminated because it was
unauthorized.
          The People agree that the amount of the restitution fine must be reduced to $200.
They maintain, however, that an administrative fee was properly imposed but it should
have been only $20 (10 percent of $200).
          We agree with defendant Labiano that the base restitution fine (§ 1202.4, subd.
(b)) and the corresponding parole revocation restitution fine (§ 1202.45) must be reduced
to $200. We also agree with the People, however, that the trial court was required to add
an administrative fee of $20 to the restitution fine imposed pursuant to section 1202.4,
subd. (b). (§ 1202.4, subd. (l).) Accordingly, we modify the judgment and, as modified,
affirm.
                                           Discussion
A. Amount of Restitution Fine
          During the period of the charged crimes and until January 1, 2012, section 1202.4,
subdivision (b), required courts to ordinarily order a defendant to pay a minimum
restitution fine of $200 if the defendant was convicted of a felony.
          Beginning on January 1, 2012 and throughout 2012, section 1202.4, subdivision
(b), required courts to ordinarily impose a minimum restitution fine of $240 on a person
convicted of a felony.2 Even though defendant pleaded guilty in 2012, "[i]t is well

2
       Section 1202.4, subdivision (b), now states in part: "In every case where a person
is convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the person is convicted of
a felony, the fine shall not be less than two hundred forty dollars ($240) starting on
January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three
                                                2
established that the imposition of restitution fines constitutes punishment, and therefore is
subject to the proscriptions of the ex post facto clause and other constitutional provisions.
[Citations.]" (People v. Souza (2012) 54 Cal.4th 90, 143; see People v. Saelee (1995) 35
Cal.App.4th 27, 31 [1992 increase in the minimum restitution fine from $100 to $200
was inapplicable to defendant whose offenses were committed before the statutory
amendment's effective date].) Accordingly, the trial court correctly imposed a $200
restitution fine pursuant to section 1202.4, subdivision (b).
       At all relevant times, section 1202.45 required the trial court, where a convicted
person would be subject to parole, to impose an additional restitution fine (denominated a
"parole revocation restitution fine" since the amendment of that section in 2004) "in the
same amount as that imposed pursuant to subdivision (b) of Section 1202.4" but required
that additional restitution fine to be "suspended unless the person's parole is revoked."
(Stats. 2007, ch. 302, § 15, p. 3079, italics added; Stats. 2004, ch. 223, § 4, p. 2433, eff.
Aug. 16, 2004, italics added; Stats. 1995, ch. 313, § 6, p. 1758, eff. Aug. 3, 1995, italics
added; see § 1202.45, subds. (a) & (c).) In this case, the trial court correctly imposed and
suspended an additional restitution fine in the "same amount" as the restitution fine that
the court had imposed, in other words an additional restitution fine of $200.
       The minute order does not accurately reflect the amounts of those restitution fines.
Where there is a discrepancy, the record of the court's oral pronouncement of judgment
ordinarily controls over the clerk's minute order. (See People v. Mitchell (2001) 26
Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; see §§ 1207, 1213, 1213.5.)
We agree with defendant's claim that the base restitution fine (§ 1202.4, subd. (b)), and
the corresponding parole revocation restitution fine (§ 1202.45), must be reduced and the
abstract of judgment must be corrected.


hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand
dollars ($10,000). . . ."
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B. Administrative Fee
       At all relevant times, subdivision (l) of section 1202.4 provided: "At its discretion,
the board of supervisors of any 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."
(Italics added.) Subdivision (l) impliedly refers to the restitution fine imposed pursuant
to subdivision (b) of that section. This language was substantively unchanged during the
period of the charged offenses to which defendant pleaded no contest.
       Defendant argues that an administrative fee of $24 should not have been added to
the $200 restitution fine because the trial court did not orally impose such a fee at
sentencing. Defendant further contends that, since he was sentenced to prison, "the
county will incur zero costs because the restitution fine will be collected by the
Department of Corrections." He reasons that, therefore, no fee to cover the county's
administrative cost of collecting the restitution fine may be imposed.
       Section 2085.5, subdivision (a), provides 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 in the
State Treasury. Any amount so deducted shall be credited against the amount owing on




                                              4
the fine. . . ."3 (See Cal. Code Regs., tit. 15, § 3097 [Inmate Restitution Fine and Direct
Order Collections].)
       Defendant's reasoning is flawed. First, his argument is predicated on the
particulars of his case, which is not consistent with the statutorily-provided procedure for
imposing such fees. If a county board of supervisors imposes an administrative fee to
defray the costs of collecting a restitution fine pursuant to section 1202.4, subdivision (l),
the subdivision specifies that the fee is added to a defendant's restitution fine at the time
of sentencing, which is necessarily before a county has actually incurred any collection
cost as to that defendant's fine. A county's administrative cost of collecting a restitution
fine in a particular case presumably varies, depending upon such factors as a defendant's
assets, resources, and willingness to comply. As can be seen, the statute does not require
proof that the county will incur collection costs before the trial court assesses the
administrative fee at the time of sentencing. In our view, subdivision (l) of section
1202.4 is in essence a revenue provision. As written, it does not limit the amount of the
administrative fee in the case of a particular defendant to the county's real cost of
collecting that defendant's restitution fine, not to exceed 10 percent of that fine.
       Second, the authority of the California Department of Corrections and
Rehabilitation (CDCR) to collect outstanding restitution fines from prisoners under the
statutory provision cited by defendant Labiano is limited to deducting certain amounts
from prisoners' wages and trust account deposits. (§ 2085.5, subd. (a).) Defendant has
not shown that counties, or the County of Santa Clara (County) in particular, will not
incur administrative costs collecting and processing a restitution fine payment from a


3
        The CDCH may also impose an administrative fee. Subdivision (e) of section
2085.5 provides in part: "The secretary shall deduct and retain from the wages and trust
account deposits of a prisoner, unless prohibited by federal law, an administrative fee that
totals 10 percent of any amount transferred to the California Victim Compensation and
Government Claims Board pursuant to subdivision (a) . . . ."
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defendant and remitting it to the Restitution Fund once a defendant is sentenced to
prison.4 Defendant has not identified any statutory exemption barring trial courts from
adding an administrative fee pursuant to section 1202.4, subdivision (l), where a
defendant is sentenced to prison. Thus, defendant has not established by reference to
existing law, or evidence presented in the court below, that the administrative fees
imposed by the CDCR and the County to defray costs of collecting unpaid restitution
fines are mutually exclusive or the County will necessarily be uninvolved in collecting
defendant's restitution fine because he has been sentenced to prison.5
       In counties that have imposed an administrative fee pursuant to section 1202.4,
subdivision (l), trial courts are statutorily obliged to add that administrative fee to the
restitution fine they impose. (See People v. Robertson (2009) 174 Cal.App.4th 206, 210.)
There has been no suggestion in this case that the County's Board of Supervisors has not
imposed an administrative fee of 10 percent to cover its administrative cost of collecting
restitution fines pursuant to section 1202.4, subdivision (l).6
       A trial court's failure to add a mandatory administrative fee results in an
unauthorized sentence subject to correction on appeal. (See People v. Talibdeen (2002)
27 Cal.4th 1151, 1157.) "[O]bvious legal errors at sentencing that are correctable without
referring to factual findings in the record or remanding for further findings are not


4
        Section 1202.4, subdivision (e), states in part: "The restitution fine . . . shall be
deposited in the Restitution Fund in the State Treasury."
5
        The appellate record does not reveal the usual steps taken by the County to collect
restitution fines. Conceivably, a county's collection services might be directed at assets
that a defendant may have, or acquire, in the county of conviction while a defendant is in
prison or after his release.
6
        We take judicial notice of the June 8, 2004 "Resolution of the Board of
Supervisors of the County of Santa Clara Imposing a Fee to Cover the Actual
Administrative Cost of Collecting Restitution Fines Ordered by the Courts." (See Evid.
Code, §§ 452, subds. (b) & (c), 459; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 7, fn.
2 [judicial notice of city council resolution].)
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waivable." (People v. Smith (2001) 24 Cal.4th 849, 852 [imposition of a parole
revocation fine that was less than the imposed restitution fine could be corrected on
appeal even though no objection at sentencing].) Accordingly, we modify the judgment.
                                       DISPOSITION
       The judgment is modified to reflect a restitution fine of $200 plus an
administrative fee of $20 (10 percent of $200), a total of $220, and a parole revocation
restitution fee of $200, which is suspended. As modified, the judgment is affirmed. The
trial court is directed to correct the abstract of judgment and to forward a certified copy to
the California Department of Corrections and Rehabilitation.




                                           ________________________________
                                           ELIA, Acting P. J.
WE CONCUR:




______________________________
MIHARA, J.




______________________________
GROVER, J.




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