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The People v. Christopher Michael Spray

December 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHRISTOPHER MICHAEL SPRAY, DEFENDANT AND APPELLANT.



(Super. Ct. No. S07CRF0175)

The opinion of the court was delivered by: Butz , J.

P. v. Spray

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Christopher Michael Spray pleaded no contest to grand theft (Pen. Code, § 484g, subd. (a).)*fn1 The trial court sentenced him to three years in state prison and ordered that he pay victim restitution.

On appeal, defendant requests that an administrative fee of 10 percent of the restitution owed (§ 1203.1, subd. (l)) be deleted from the abstract of judgment, as inconsistent with the court's oral pronouncement of sentence. We shall modify the judgment to delete the errant reference to section 1203.1 and order the judgment amended to insert the proper collection fee set forth in section 2085.5.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with grand theft (count I) and grand theft by embezzlement (count II), with special allegations that he served a prior prison term (§ 667.5, subd. (f)) and was convicted of a prior felony in Oregon that qualified as a strike (§ 667.5, subds. (b)-(i)).

Pursuant to a negotiated plea bargain, defendant pleaded no contest to count I, and received a stipulated three-year prison sentence; the remainder of the charges and special allegations were dismissed. The trial court also imposed a $200 restitution fine and continued the matter for further hearing on victim restitution.

At a further hearing, the court reviewed documentary evidence and determined that defendant should reimburse Lowe's in the amount of $2,313 for unauthorized use of its credit card. The court then began to order an additional 10 percent administrative fee, but stopped itself, as shown in the following excerpt.

"[THE COURT]: . . . The Court does believe that . . . [defendant] is, in fact, responsible for those [credit card] charges either himself or jointly and severally with other unnamed participants, and so the Court will order restitution to Lowe's in the amount of two thousand three hundred thirteen dollars and . . . .

"[DEFENSE COUNSEL]: We will stipulate to fifty-six cents. "THE COURT: Fifty-six cents. And then he's also to pay a 10 percent administrative fee of--oh, actually, he went to prison, so never mind. So that's to become a civil judgment to Lowe's." (Italics added.)

Despite the court's oral cancellation of the administrative fee, the minutes of the court recite that defendant is to pay "a 10 [percent] administrative collection fee for victim restitution in the amount of $231.36 ([ยง 1203.1])." Likewise, the "Order for Restitution and Abstract of Judgment" (Order for Restitution) directs defendant to pay restitution to Lowe's in the amount of $2,313.56, ...


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