Opinion
E032207.
7-8-2003
In re MICHAEL R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL R., Defendant and Appellant.
Scott M. Rand, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Rhonda L. Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, minor pleaded no contest to two counts of committing lewd and lascivious acts upon two separate victims under the age of 14 (Pen. Code, § 288, subd. (a)). In return, the remaining allegation was dismissed, and the People agreed not to file additional charges relating to other alleged victims. After a contested dispositional hearing, minor was adjudged a ward of the court and ordered placed in foster care. The court also ordered restitution to the victims in an amount to be determined later (Welf. & Inst. Code, §§ 730.6 & 730.7) and imposed an additional 10 percent administrative fee pursuant to Penal Code section 1203.1. The court further ordered that minor pay a $ 100 state restitution fine (Welf. & Inst. Code, §§ 730.6 & 730.7), with an additional 10 percent administrative fee pursuant to Penal Code section 1202.4. On appeal, minor contends the juvenile court erred in imposing the administrative fees pursuant to Penal Code sections 1203.1 and 1202.4. We reject minors contention that the juvenile court erred in imposing the administrative fees, but we find that the incorrect statutory authority is cited in the juvenile courts minute order.
I
Because our conclusion in this appeal is not dependent on the facts of the case, we will not recount those details.
DISCUSSION
Minor claims that, while the juvenile court properly ordered him to pay restitution to the victims as well as the $ 100 restitution fine, it erred by adding 10 percent fees to cover the administrative costs of collecting the ordered restitution and fine. Specifically, he asserts the court exceeded its jurisdiction by ordering the fees pursuant to Penal Code sections 1203.1 and 1202.4 because these sections only apply to criminal cases. The People respond minor waived this issue on appeal by failing to object below and, in the alternative, argue that the court lawfully imposed the administrative fees. We are inclined to agree with the People.
In People v. Scott (1994) 9 Cal.4th 331, 885 P.2d 1040, the California Supreme Court held that to prevent unnecessary appeals "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id . at p. 356.) It is well settled that failure to object and make an offer of proof at the sentencing hearing concerning a restitution order waives the claim on appeal. (In re John H. (1992) 3 Cal.App.4th 1109, 1112-1113; People v. Menius (1994) 25 Cal.App.4th 1290, 1297-1299; People v. Riccio (1996) 42 Cal.App.4th 995, 1002-1003.) We acknowledge that, when there has been no opportunity to object, the failure to object cannot constitute a waiver. (See Scott at p. 356; People v. Prewitt (1959) 52 Cal.2d 330, 335, 341 P.2d 1; People v. Delahoussaye (1989) 213 Cal. App. 3d 1, 12-13, 261 Cal. Rptr. 287.) In the present matter, however, minor had the opportunity to address the court at the sentencing hearing on the actual imposition of administrative fees but failed to do so. Thus, to the extent minor argues the court erred in imposing the administrative fees, we find that issue waived.
Furthermore, the imposition of the administrative fees in this case was not unauthorized because the juvenile court could have lawfully imposed the 10 percent fee pursuant to Welfare and Institutions Code section 730.6. Welfare and Institutions Code section 730.6, subdivision (q) contains virtually identical language to Penal Code sections 1203.1 and 1202.4 concerning a trial courts authority to impose administrative fees. Welfare and Institutions Code section 730.6, subdivision (q) states: "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."
To the extent minor argues that the administrative fees were improperly imposed pursuant to Penal Code sections 1203.1 and 1202.4, we find that minor did not have an opportunity to address the court regarding the citation of these Penal Code sections as indicated in the courts minute order, because the court never cited those sections when it imposed the administrative fees. The court specifically stated: "Court . . . orders restitution and/or restitution fine and or any other fees are to remain in effect until paid in full pursuant to Welfare & Institutions Code [sections] 730.6 and 730.7 and are not discharged upon dismissal of the petition, discharged from wardship, or termination of summary of probation."
In relevant part, the juvenile courts minute order states: "The court orders minor to pay restitution to . . . victims compensation pursuant to WIC 730.6/730.7 . . . plus a 10% administrative fee pursuant to PC 1203.1 . . . ." It goes on to state, "The court orders the minor to pay state restitution fine in the amount $ 100.00 pursuant to WIC 730.6/730.7, plus a 10% administrative fee pursuant to PC 1202.4 . . . ." (Capitalization omitted; italics added.)
This case essentially involves a correction of the juvenile courts minute order. We find that the juvenile courts minute order should have recited Welfare and Institutions Code section 730.6 in ordering minor to pay the required administrative [* 7] fees. Accordingly, the minute order must be corrected to reflect the juvenile courts oral pronouncement. (People v. Little (1993) 19 Cal.App.4th 449, 450 [if minutes fail to reflect the pronouncement by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts].)
II
DISPOSITION
The juvenile court is directed to correct the minute order to reflect that minor is ordered to pay the required administrative fees pursuant to Welfare and Institutions Code section 730.6. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., and KING J.