IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
December 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHRISTOPHER MICHAEL SPRAY, DEFENDANT AND APPELLANT.
(Super. Ct. No. S07CRF0175)
The opinion of the court was delivered by: Butz , J.
P. v. Spray
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ([§ 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, "plus an administrative fee at 10 percent of the restitution owed," citing section 1203.1, subdivision (l).
I. Administrative Fee
Defendant contends that the administrative fee ostensibly levied pursuant to section 1203.1 must be stricken because it is at variance with the court's pronouncement of sentence. It is, of course, settled that where there is a discrepancy between the abstract of judgment and the court's oral pronouncement of sentence, the oral pronouncement controls. (People v. Zachery (2007) 147 Cal.App.4th 380, 385.)
Here, there is no doubt that the court changed its mind about the administrative fee (saying "never mind") once it realized that defendant was being sent to prison. The court's comment is understandable, given that section 1203.1 applies only to defendants sentenced to probation. Thus, as the court correctly recognized, the administrative fee for victim restitution in subdivision (l) of section 1203.1,*fn2 could not be imposed on a defendant sentenced to state prison.
The People do not deny that the reference to section 1203.1 should be deleted, but propose that the judgment be amended to add an administrative collection fee under a different statute, section 2085.5. They argue the correction is needed even though the trial court never mentioned section 2085.5, because imposition of the fee under the statute is mandatory.
Subdivision (b) of section 2085.5 provides, in pertinent part, "In any case in which a prisoner owes a restitution order imposed pursuant to . . . subdivision (f) of Section 1202.4,[*fn3 ] the Secretary of the Department of Corrections and Rehabilitation shall deduct a minimum of 20 percent or the balance owing on the order 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. The Secretary shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program." This statute is akin to a wage garnishment statute, authorizing the Department of Corrections and Rehabilitation (the Department) to withhold at least 20 percent but not more than 50 percent of a prisoner's earnings or other deposits, to pay restitution amounts owed to the victim. (See In re Betts (1998) 62 Cal.App.4th 821, 825.)
The administrative fee which the People seek to have inserted into the judgment appears in subdivision (c) of section 2085.5 (section 2085.5(c)). That provision states, that the "[S]secretary [of the Department] 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) or (b). . . . The [S]secretary shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution program of [the Department]." (Italics added.)
The administrative fee is self-executing, but is not triggered until the Department withholds sums from a prisoner's earnings. No one challenges the Department's authority to collect the 10 percent fee specified in section 2085.5(c). The sole disputed issue is whether the fee must be inserted into the abstract of judgment. The answer is yes.
"Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [laboratory fee]; People v. Hong (1998) 64 Cal.App.4th 1071, 1080 [restitution fine].) The abstract of judgment form . . . provides a number of lines for 'other' financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Pen. Code, § 1205, subd. (c).) . . . As the Sanchez court explained, 'Just as a "'[r]ose is a rose is a rose is a rose' [citations]," a fine is a fine is a fine is a fine and is part of the judgment which the abstract must "'digest or summarize.'"'" (People v. High (2004) 119 Cal.App.4th 1192, 1200, italics added.)
As illustrated by its use of the word "shall," imposition of the 10 percent collection fee set forth in section 2085.5(c) is mandatory. Thus, even though the court did not mention this fee in pronouncing sentence, we may order its inclusion in the judgment on our own motion. (See, e.g., People v. Stone (1999) 75 Cal.App.4th 707, 717-718; People v. Martinez (1998) 65 Cal.App.4th 1511, 1523.)
However, as defendant correctly points out, it is improper for the judgment to reflect a specific dollar amount, since the amount of the fee depends on the amount actually collected by the Department. (§ 2085.5(c).) Accordingly, the portion of the judgment imposing a fee of $213.36 must be stricken. The fee should be 10 percent of any sums collected by the Department pursuant to section 2085.5, subdivision (b).
II. Correction of Minute Order and Abstract of Judgment
The court's August 16, 2010 minute order and June 24, 2009 abstract of judgment incorrectly list defendant's crime for count I as section "484(g)," which shall be corrected to indicate section 484g, subdivision (a). Additionally, the trial court case No. is shown incorrectly on the abstract as S0CRF0175 and shall be corrected to read S07CRF0175.
The judgment is modified to delete the statutory fee imposed under section 1203.1. The judgment is amended to order that defendant pay a 10 percent collection fee on all sums collected from his wages or trust deposits pursuant to section 2085.5, subdivisions (b) and (c).
The trial court is directed to correct the minute order, the Order for Restitution, and the abstract of judgment in accordance with this opinion. The trial court shall prepare an amended abstract of judgment and an amended Order for Restitution and forward a certified copy of each to the Department of Corrections and Rehabilitation.
So modified, the judgment is affirmed.
We concur: HULL , Acting P. J. MURRAY , J.