P. v. >Mendoza>















Filed 6/25/12 P. v. Mendoza CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MENDOZA, Defendant and Appellant.

E053345 (Super.Ct.No. FWV902827) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County. Mary E. Fuller,
Judge. Affirmed.

John D. O’Loughlin, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Gary W. Brozio, and William M. Wood, Deputy Attorneys
General, for Plaintiff and Respondent.

Defendant
and appellant Armando Mendoza appeals after he was convicted of grand
theft. The sole contention he raises on
appeal is that the imposition of a 10 percent administrative collection fee
with respect to his restitution and parole restitution fines was
unauthorized. We reject the contention
and affirm.

FACTS AND PROCEDURAL HISTORY

The charged offenses involved the
theft of some copper wire or cable from a scrap metal business in Montclair. In the early morning hours of October 13, 2009, a witness at a
nearby storage yard saw two men putting some copper wire or cable into the back
of a Jeep. The witness called police to
report the activity. After the Jeep had
left, the witness investigated further, and saw a hole in the fence of the
scrap metal business, and large empty wooden cable spools inside. He called the police again to report the
additional information.

After the report was broadcast, an
officer on patrol saw a dark-colored Jeep matching the general description in
the report, with a lot of heavy cable or wire protruding from the back. The officer stopped the Jeep; defendant was
in the front passenger seat. Defendant
made a number of false statements to the officer. He told the officer that he lived in Pomona,
and then said that he lived in Rancho Cucamonga, but the Jeep’s owner, Richard
Dean, was driving defendant to defendant’s girlfriend’s house in Pomona. Defendant also claimed not to know his
girlfriend’s address or telephone number.
Defendant did not tell the officer that he actually lived in a house
next door to the scrap metal yard.

The owner of the scrap metal yard
went to the police station after defendant and Dean were apprehended. He identified the cable—a distinct, heavy,
specialty cable—which had been in his yard the day before the theft. There had been no hole in the fence before
the theft, and he did not give anyone permission to take the cable. The stolen cable was worth about $1,000.

In May 2010, defendant was charged
by a first amended information with grand theft and href="http://www.fearnotlaw.com/">receiving stolen property. At trial, he testified in his own
behalf. He denied stealing the
wire. He testified that Dean, the Jeep’s
owner, had come to pick up defendant to take him to Los
Angeles to get money to fix defendant’s car. Dean came much earlier in the morning than
planned. Defendant got into the Jeep and
Dean drove off, but he soon stopped, because some wire he was carrying was
coming out of the back of the Jeep.
Defendant helped Dean shove the wire back into the Jeep, but otherwise
he had nothing to do with it, and was not curious about where Dean had gotten
it. Shortly after Dean had resumed
driving, the police stopped the Jeep.

Defendant asserted that he had not
stolen the wire, that he had not seen the hole in the fence of the scrap metal
yard next to his residence, and that he did not see the large, empty wooden wire
spools in the yard. He also stated that
the fence had had other holes in it before the theft. Defendant denied stealing the wire but
believed that Dean had stolen it.

The jury, pursuant to the court’s
instructions, returned a verdict finding defendant guilty of grand theft in
count 1, and returned no verdict on count 2, receiving stolen property.

The court found two prison term
priors (Pen. Code, § 667.5, subd. (b)) to be true. Sentencing took place on March 22, 2011.
The court sentenced defendant to four years in state prison. The court also imposed a restitution fine of
$220, consisting of a $200 restitution fine (Pen. Code, § 1202.4, subd.
(b)), plus a 10 percent collection fee, and imposed and stayed a parole
revocation restitution fine of $220, again consisting of a fine of $200 for
parole revocation (Pen. Code, § 1202.45), plus a 10 percent collection
fee.

Defendant filed a href="http://www.mcmillanlaw.com/">notice of appeal. He contends that the imposition of the 10
percent collection fees was unauthorized.


ANALYSIS

I. The
Addition of a 10 Percent Administrative Collection Fee Was Proper

Defendant contends that the
imposition of a 10 percent collection fee, with respect to the restitution and
the probation revocation restitution fines, was unauthorized. Penal Code section 1202.4, subdivision (l),
provides that, “At 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.” Defendant contends that the San Bernardino
County Code of Ordinances contains no indication that the San
Bernardino County Board of Supervisors (hereafter, the
County) had exercised its discretion to adopt any enactment to impose a
collection fee in connection with recouping the cost of collecting restitution
fines. Thus, there was no lawful basis
for the court’s order.

An “unauthorized sentence” is one
that cannot lawfully be imposed under any circumstances. (See People
v. Scott (1994) 9 Cal.4th 331, 354.)
Normally, the decision to impose a particular restitution fine is
reviewed under the abuse of discretion standard, but when the propriety of the
fine (or portion thereof) turns on the interpretation of a statute or similar
legislation, the issue is one of law, which is reviewed de novo. (People
v. Williams (2010) 184 Cal.App.4th 142, 146 [Fourth Dist., Div. Two].)

Defendant points to San Bernardino
County Code, section 16.0203B (sic: 16.0203A), subdivisions (gg) and (hh), which
provide respectively for a “Victim restitution fee” of “$10% of amount
collected,” and a “Restitution fund fee” of “$10% of amount collected.” (San Bernardino County Ordinance No. 4141,
§ 5, pp. 19-20; see
(as of June 21,
2012).) Defendant argues that, because
the 10 percent fees apply to “amount[s] collected,” the fees must be intended
to be “charged to the victim for whom ‘amounts’ are ‘collected,’ not fees to be
imposed on the defendant: at the time of the order imposing the 10% fee on the
amount of restitution, nothing would have been collected.”

The argument is without merit.

First, defendant has cited the wrong
provision. The fee schedule is presently
contained in the County’s code of ordinances at section 16.0203A, not
16.0203B.

Second, defendant has cited an
inapplicable version of the ordinance.
Ordinance No. 4141, containing the 10 percent collection fees in section
16.0203A, subdivisions (gg) and (hh), was adopted effective July 1, 2011, after
the date that defendant was sentenced.
Before that date, the version of the fee schedule in effect was pursuant
to ordinance No. 4101, effective July 1, 2010.
(Ord. No. 4101, § 42, p. 239; see
(as of June 21,
2012).) Ordinance No. 4101, section 42,
amended the County’s code of ordinances, section 16.0230, subdivisions (m) and
(n) to provide, respectively, for a “Victim restitution fee” of “10% of amount
collected,” and a “Restitution fund fee” of “10% of amount ordered.” This was the version in effect at the time of
defendant’s sentencing.

Third, and most importantly, this
history sheds light on the proper interpretation of these 10 percent fee
provisions. Defendant proposes, as to
both provisions, that the 10 percent fee is intended to be paid >by the victim, rather than by the
defendant. We disagree. Penal Code section 1203.1, subdivision (l),
provides: “If the court orders
restitution to be made to the victim, the entity collecting the restitution may
add a fee to cover the actual administrative cost of collection, but not to
exceed 15 percent of the total amount ordered to be paid. The amount of the fee shall be set by the
board of supervisors if it is collected by the county and the fee collected
shall be paid into the general fund of the county treasury for the use and
benefit of the county. The amount of the
fee shall be set by the court if it is collected by the court and the fee
collected shall be paid into the Trial Court Operations Fund or account established
by Section 77009 of the Government Code for the use and benefit of the
court.” Defendant’s construction might
apply as to former section 16.0230, subdivision (m), providing for a “Victim
restitution fee” of “10% of [the] amount collected.” (Ord. No. 4101, § 42, p. 239.) But former section 16.0230, subdivision (n),
did not address direct victim restitution; it applied a “Restitution >fund fee” of “10% of [the] amount >ordered.” (Ibid.) The reflection in the legislation of a 10
percent fee is a precise mirror of the provision in Penal Code section 1202.4,
subdivision (l), that the costs of collection, from the defendant, should “not
. . . exceed 10 percent of the amount ordered to be paid.” The legislative
intent is clear: As to the costs of
collection of fines for restitution funds (as opposed to direct victim
restitution), the County board of supervisors manifestly exercised its
discretion to add a 10 percent fee to cover the administrative costs of
collecting the restitution fines.href="#_ftn1"
name="_ftnref1" title="">^[1]

The trial court therefore properly
imposed such 10 percent cost-of-collection fees on defendant, and, under the
statutory provision, properly “added [the 10% collection fees] to the
restitution fine[s] and included [them] in the order of the court . . . .”

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



MCKINSTER

J.





We concur:



RAMIREZ

P.J.

KING

J.