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People v. Robertson

May 26, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEVEN MARK ROBERTSON, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Shasta County, James Ruggiero, Judge. Affirmed. (Super. Ct. No. 06F9073).

The opinion of the court was delivered by: Davis, J.*fn3

CERTIFIED FOR PARTIAL PUBLICATION*fn1

We publish this decision to correct a misunderstanding by the parties, not the trial court, concerning this court's decision in People v. Eddards (2008) 162 Cal.App.4th 712 (Eddards), which held that when, as a condition of probation, a defendant is ordered to pay "restitution to the victim or the Restitution Fund" (Pen. Code, § 1203.1, subd. (b)), an administrative fee of up to 10 percent of the amount may be imposed to cover a county's cost of collecting "restitution to be made to the victim" (Pen. Code, § 1203.1, subd. (l)) but not when the payment is to be made to the Restitution Fund. (Eddards, supra, 162 Cal.App.4th at pp. 716-717.)

As we will explain, the holding in Eddards does not preclude a trial court from imposing a 10 percent administrative fee to cover a county's cost of collecting a "restitution fine" (Pen. Code, § 1202.4, subd. (l)) ordered pursuant to Penal Code section 1202.4, subdivision (a)(3)(A).

Here, defendant Steven Mark Robertson pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378), admitted an allegation that he was personally armed with a firearm during the commission of the offense (Pen. Code, § 12022, subd. (c)), and further admitted that he had two prior convictions for narcotics offenses (Health & Saf. Code, § 11370.2, subd. (b)). The trial court sentenced him to 13 years in state prison and imposed other orders, including a restitution fine of $1,200 pursuant to Penal Code section 1202.4, subdivision (b), with a 10 percent "administrative fee."

On appeal, defendant contends that the administrative fee imposed in connection with the restitution fine is unauthorized and must be stricken. Defendant also requests that we correct a clerical error in the abstract of judgment to reflect his 91 days of presentence custody credit. We will affirm the judgment, including the administrative fee, and will direct the trial court to correct the abstract of judgment. We also note that the abstract of judgment fails to include the $20 court security fee imposed by the court pursuant to Penal Code section 1465.8, subdivision (a)(1); we will direct the trial court to correct this error as well.

FACTUAL AND PROCEDURAL BACKGROUND

We dispense with a detailed recitation of the underlying facts as they are unnecessary to the resolution of this appeal. Suffice it to say that defendant was discovered in his residence with over seven ounces of methamphetamine, digital scales, three glass methamphetamine pipes, Ziploc baggies, two semiautomatic handguns (a .45-caliber Ruger P-90 with a filed-off serial number and a stolen nine-millimeter Sig Sauer T-232 SL), and $5,725 in cash.

Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378), maintaining a place for sale or use of methamphetamine (Health & Saf. Code, § 11366), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), receiving stolen property (Pen. Code, § 496, subd. (a)), possession of a smoking device (Health & Saf. Code, § 11364), and possession of a firearm with the identification removed (Pen. Code, § 12094). The information also alleged that defendant was personally armed with a firearm during the commission of the offense of possession of methamphetamine for sale (Pen. Code, § 12022, subd. (c)), and that he had two prior convictions for narcotics offenses (Health & Saf. Code, § 11370.2, subd. (b)).

Pursuant to negotiated agreement, defendant pleaded no contest to possession of methamphetamine for sale, admitted the arming enhancement allegation, and further admitted his prior narcotics convictions. In exchange for his plea, the remaining charges were dismissed, and the People also agreed to dismiss the arming enhancement allegation if defendant timely appeared for sentencing.

Defendant failed to appear for sentencing. After issuing a bench warrant to compel defendant's appearance, the trial court sentenced him to 13 years in state prison (upper term of three years on the possession for sale, plus four years for the arming enhancement, plus three years for each prior narcotics conviction), and imposed other orders (including a restitution fine of $1,200 with a 10 percent "administrative fee" attached, a restitution fine of $1,200 (stayed pending successful completion of parole), a criminal lab fee of $162.50, and a $20 court security fee). Defendant was also awarded 91 days of presentence custody credit.

DISCUSSION

I.

Defendant contends, and the Attorney General concedes, that the 10 percent "administrative fee" added to the $1,200 restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (a)(3)(A)*fn2 is unauthorized and must be ...


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