Opinion
E052658 Super.Ct.No. FBA100760 Super.Ct.No. FSB1003034
08-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES A. MURILLO, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest, Judge. Affirmed with directions.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
Following a guilty plea, defendant James Anthony Murillo was convicted of one count of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), and was placed on formal probation. Defendant appealed, and a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, was filed. We requested supplemental briefing to address whether the superior court was authorized to impose a 10 percent administrative fee respecting a restitution fine ordered pursuant to section 1202.4. The parties have done so, and agree that the imposition of an administrative fee violates section 1202.4, subdivision (e). We modify the judgment to strike the administrative fee, and, as modified, we affirm.
All further statutory references are to the Penal Code, unless otherwise specified.
BACKGROUND
On May 16, 2010, a police officer was dispatched to an area of Rialto where numerous signs, curbs, walls and electrical boxes had been freshly tagged with the letters "EKC." The graffiti refers to a tagging crew. During an area check, defendant and two companions were spotted walking in the middle of the street. The officer observed the defendant drop a black object on the ground as they walked. When stopped, the officer noticed fresh black ink stains on defendant's hands and forearms. The officer returned to the spot where defendant had been seen to drop the black object and found a black permanent marker. On May 17, 2010, the defendant was charged with one count of vandalism in case No. FVA1000760. (§ 594, subd. (b)(1).)
On July 20, 2010, defendant and other male subjects were seen running from two parked cars. One of the vehicles was still running, but did not have a key in the ignition. When contacted, the registered owners of the vehicles confirmed the vehicles were stolen. Defendant admitted he was a passenger in one of the vehicles. On July 22, 2010, a felony complaint was filed in case No. FSB1003034, alleging two counts of driving or taking a vehicle without the owner's permission (Veh. Code, §10851, subd. (a), counts 1, 3), and two counts of receiving a stolen vehicle. (§ 496d, subd. (a), counts 2, 4.)
On August 3, 2010, defendant waived his right to a preliminary hearing in case No. FSB1003034, and entered a change of plea, disposing of both cases. In case No. FSB1003034, defendant pled guilty to count 2, receiving a stolen vehicle (§ 496d, subd. (a)), in return for a grant of probation and dismissal of remaining counts on that case, as well as dismissal of case No. FVA1000760, with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754, held that it is improper to consider any of the facts of a dismissed count for purposes of aggravating or enhancing defendant's sentence. In this case, the Harvey waiver was intended to provide restitution for the costs of the removal of graffiti in case No. FVA1000760.
On September 14, 2010, the court suspended imposition of sentence and placed defendant on formal probation, subject to the condition that he serve 180 days in local custody with credit for 15 days served. Among the other probation conditions, the court ordered defendant to pay a restitution fine in the amount of $200, plus a 10 percent administrative fee, through central collections. The remaining counts in case No. FSB1003034 were dismissed, and a restitution hearing was set.
Orally, the court reduced the restitution fine, as well as the probation revocation restitution fine, to $200, without mentioning the administrative fee. However, condition No. 23 of the proposed probation conditions contained in the probation officer's report recommendation included the administrative fee, which was later recorded in the minute order as condition No. 21.
On November 24, 2010, defendant agreed to pay restitution to the City of Rialto in the amount of $5,281.43, for the vandalism in case No. FVA1000760, pursuant to the Harvey waiver in the related case. In addition to the victim restitution, the court imposed a 10 percent administrative fee to be paid through central collections.
On December 17, 2010, defendant appealed from the sentence or other matters occurring after the plea.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (See People v. Wende, supra, 25 Cal.3d 436.) We requested supplemental briefing to determine whether the trial court was authorized to impose a 10 percent administrative fee for the collection of the restitution fine. Defendant submitted a supplemental brief arguing that the imposition of the administrative fee was not authorized, and the People have conceded. We agree.
Section 1202.4 provides that when a person is convicted of any crime, in addition to any other penalty provided or imposed by law, the court shall order the defendant to pay: (a) a restitution fine, and (b) restitution to the victim, if any. (§ 1202.4, subd. (a)(3).) The restitution fine is not subject to penalty assessments or the state surcharge authorized by section 1465.7, and is deposited in the Restitution Fund in the State Treasury. (§ 1202.4, subd. (e).)
However, "[a]t 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." (§ 1202.4, subd. (l).)
In People v. Eddards (2008) 162 Cal.App.4th 712, 717, the Third District Court of Appeal held that the statutory scheme permitted the collection of the administrative fee when restitution is ordered paid to the victim. That court later clarified its holding in People v. Robertson (2009) 174 Cal.App.4th 206, in which the court held that the holding in Eddards did not preclude a trial court from imposing a 10 percent administrative fee to cover the county's cost of collecting a restitution fine.
However, that court did not address the issue of whether the Board of Supervisors of the County of Shasta had adopted an ordinance or other regulation to authorize the collection of the administrative fee. For that reason, while the case properly noted that section 1202.4 does not preclude the collection of an administrative fee to cover the cost of collecting a restitution fine, it does not address the question of whether an administrative fee may be imposed without authorization from the county board of supervisors.
In interpreting a statute, if the language of the statute is not ambiguous, the plain meaning controls. (People v. Eddards, supra, 162 Cal.App.4th at p. 717.) We begin with the statutory language because it is generally the most reliable indication of legislative intent. (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063.) If the statutory language is unambiguous, we presume the Legislature meant what it said. (People v. Hudson (2006) 38 Cal.4th 1002, 1009.) Significance should be attributed to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. (Agnew v. State Bd. Of Equalization (1999) 21 Cal.4th 310, 330.) A construction making some words surplusage is to be avoided. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.)
The plain language of subdivision (l) of section 1202.4, requires some expression by the county board of supervisors that it has exercised discretion regarding the collection of an administrative fee to cover the costs of collection. After researching the San Bernardino County Code of Ordinances, we have found no indication that the San Bernardino County Board of Supervisors has exercised its discretion to collect an administrative fee to cover the cost of collecting a restitution fine. However, the county has adopted administrative fees to cover booking or other processing services (see San Bernardino County Code, § 16.0207A [covering only fresh arrests]), as well as probation and other court-related costs. (See San Bernardino County Code, § 16.0219 [reimbursement of probation costs, investigation fees, substance abuse testing fees, adult supervision fees, etc].)
Because the County of San Bernardino has demonstrated that it is capable of expressing discretion to collect fees through its code of ordinances, the absence of any ordinance covering the administrative fee in question speaks volumes: inclusio unius est exclusio alterius [inclusion of one excludes others]: the County of San Bernardino has not exercised the discretion to which section 1202.4, subdivision (l), refers.
Only the Legislature has the power to impose a mandatory fee or penalty because the power to define crimes and fix penalties is vested exclusively in the legislative branch. (People v. Farley (2009) 46 Cal.4th 1053, 1119.) Superior courts have certain inherent powers respecting the conduct of proceedings (Code Civ. Proc., § 128), and a court may order a party to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous, or that are solely intended to cause delay. (Code Civ. Proc., § 128.5.) However, a superior court lacks authority to impose an administrative fee that has not been authorized by the Legislature or the board of supervisors. Therefore, we direct the superior court clerk to strike the term from the clerk's minutes and from the probation order.
DISPOSITION
Probation condition No. 21 is modified to strike the collection of an administrative fee for the cost of collecting the restitution fine. Except as modified, the judgment is affirmed.
In the probation officer's report recommendation, the term is listed as condition No. 23.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur: Richli
J.
King
J.