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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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. 
2 

 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 
3 

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). . . ." 
4 

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 
5 

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.