1 Filed 12/11/13 P. v. Labiano CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. RODOLFO CUARESMA LABIANO, Defendant and Appellant. H039297 (Santa Clara County Super. Ct. No. B1259861)

Pursuant to a plea bargain, defendant Rodolfo Cuaresma Labiano pleaded no contest to 12 charges: 10 coun ts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) 1 and two counts of lewd a nd lascivious acts upon a child of 14 or 15 years and at leas t 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 "additio nal restitution fine" in the "same amount." The sentencing minute order, however, reflects a restitution fine of $264 (impliedly $240 plus a 10 percent administrative f ee of $24) and an additional restitution fine, suspended, of $240.

1 All further statutory references are to the Penal Code unless otherwise stated.2 On appeal, defendant asserts that the re stitution fines must be reduced to $200, consistent with the court's oral pronouncemen t 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 re stitution fine must be reduced to $200. They maintain, however, that an administrative fee was pr operly imposed but it should have been only $20 (1 0 percent of $200). We agree with defendant Labiano that th e base restitution fine (§ 1202.4, subd. (b)) and the corresponding parole revocation re stitution 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 restituti on fine imposed pursuant to section 1202.4, subd. (b). (§ 1202.4, subd. ( l ).) Accordingly, we modify th e judgment and, as modified,
affirm.
Discussion
A. Amount of Re stitution Fine During the period of the charged crimes and until January 1, 2012, section 1202.4, subdivision (b), required courts to ordina rily 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 throu ghout 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 pleade d 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 im pose 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 ei ghty dollars ($280) starting on January 1, 2013, and three3 established that the imposition of restitution fi nes constitutes punishment, and therefore is subject to the proscriptions of the ex post fa cto clause and other co nstitutional 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 offe nses were committed before the statutory amendment's effective date].) Accordingly, the trial cour t correctly imposed a $200 restitution fine pursuant to sec tion 1202.4, subdivision (b). At all relevant times, section 1202.45 requ ired the trial court, where a convicted person would be subject to paro le, to impose an additional re stitution fine (denominated a "parole revocation restitution fi ne" since the amendment of th at 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 "suspe nded unless the person's parole is revoked." (Stats. 2007, ch. 302, § 15, p. 3079, italics adde d; Stats. 2004, ch. 2 23, § 4, p. 2433, eff. Aug. 16, 2004, italics added; Stats. 1995, ch. 313, § 6, p. 1758, e ff. Aug. 3, 1995, italics added; see § 1202.45, su bds. (a) & (c).) In this case, th e 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 reflec t 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; se e §§ 1207, 1213, 1213.5.) We agree with defendant's clai m 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) starti ng on January 1, 2014, and not more than ten thousand dollars ($10,000). . . ."4 B. Administrative Fee At all relevant times, subdivision ( l ) of section 1202.4 provide d: "At its discretion, the board of supervisors of any count y may impose a fee to cover the actual administrative cost of collecting the res titution fine, not to ex ceed 10 percent of the amount ordered to be paid, to be added to the restitution fin e 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 re stitution fine imposed pursuant to subdivision (b) of that sect ion. This language was subs tantively unchanged during the period of the charged offenses to which defendant pleaded no contest. Defendant argues that an administrative fe e 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 re stitution fine will be collected by the Department of Corrections." He reasons th at, 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 par t: "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 a nd 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 tr ust account deposits of a prisoner, unless prohibited by federal law, and shall transf er 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 sha ll be credited against the amount owing on5 the fine. . . ." 3 (See Cal. Code Regs., tit. 15, § 3097 [Inmate Restitution Fine and Direct Order Collections].) Defendant's reasoning is flawed. First, his argumen t is predicated on the particulars of his case, which is not consistent with the st atutorily-provided procedure for imposing such fees. If a county board of su pervisors imposes an administrative fee to defray the costs of collecting a restitution fi ne pursuant to secti on 1202.4, su bdivision ( 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 fi ne. 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 in cur collection costs before the trial court assesses the
administrative fee at the time of sent encing. In our vi ew, 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 coun ty's real cost of collecting that defendant's restitution fine, not to exceed 10 perc ent of that fine. Second, the authority of the Califor nia Department of Corrections and Rehabilitation (CDCR) to coll ect outstanding res titution fines from prisoners under the statutory provision cited by defendant Labi ano is limited to deducting certain amounts from prisoners' wages and trust account depos its. (§ 2085.5, subd. (a).) Defendant has not shown that counties, or the County of Sa nta Clara (County) in particular, will not
incur administrative costs co llecting and processing a res titution fine payment from a

3 The CDCH may also impose an administra tive fee. Subdivision (e) of section 2085.5 provides in pa rt: "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 transferre d to the California Victim Compensation and Government Claims Board pursuan t to subdivision (a) . . . ."6 defendant and remitting it to the Restitution Fund once a defendant is sentenced to prison. 4 Defendant has not identified any statut ory exemption barring trial courts from adding an administrative fee pursuan t to section 1202 .4, subdivision ( l ), where a defendant is sentenced to prison. Thus, de fendant has not establis hed 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 wi ll necessarily be uninvolved in collecting
defendant's restitution fine because he has been sentenced to prison. 5 In counties that have imposed an admini strative 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 s ection 1202.4, subdivision ( l ). 6
A trial court's failure to add a manda tory 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, subdi vision (e), states in part: "The restitution fine . . . shall be deposited in the Restitution Fu nd in the State Treasury." 5 The appellate record does not reveal th e usual steps taken by the County to collect restitution fines. Conceivably, a county's coll ection services might be directed at assets that a defendant may have, or acquire, in the county of conviction wh ile 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 Clar a Imposing a Fee to Cover the Actual Administrative Cost of Collec ting 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].)7 waivable." ( People v. Smith (2001) 24 Cal.4th 849, 852 [imposition of a parole revocation fine that was less than the impos ed restitution fine could be corrected on appeal even though no objection at sentencing].) Accord ingly, we modify the judgment.
DISPOSITION The judgment is modified to reflec t a restitution fine of $200 plus an administrative fee of $20 (10 percent of $20 0), 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.