People v. Labiano CA6

Filed 12/11/13 P. v. Labiano CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039297 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. B1259861)

v.

RODOLFO CUARESMA LABIANO,

Defendant and Appellant.

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. 1

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