People v. Garcia CA6

Filed 11/25/13 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039147 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1119979)

v.

STEVEN MICHAEL GARCIA,

Defendant and Appellant.

In re STEVEN MICHAEL GARCIA, H039962

on Habeas Corpus.

Defendant Steven Michael Garcia appeals from his conviction for two methamphetamine-related drug offenses. On appeal, Garcia contends—and the government concedes—the trial court erred by (1) ordering Garcia to pay attorney’s fees without conducting a hearing or finding unusual circumstances as required by Penal Code section 987.8, and (2) imposing a concurrent sentence rather than staying one of the sentences as required by Penal Code section 654. In a petition for a writ of habeas corpus, which we have ordered considered together with the appeal, Garcia asserts that his trial counsel rendered ineffective assistance of counsel by advising Garcia not to testify at trial.

I. FACTUAL AND PROCEDURAL BACKGROUND An information filed on June 22, 2012, charged Garcia with two related felony counts for violations of the Health and Safety Code based on a single incident in which police found plastic baggies of methamphetamine in Garcia’s pocket. Count 1 charged Garcia with possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 2, with transportation, sale, and distribution of methamphetamine (id., § 11379, subd. (a)). The information also alleged numerous prior convictions for arson, possession of a controlled substance, and transportation/sale of a controlled substance. At trial the arresting officer testified that, on the way to the police station following the arrest, Garcia stated “I’m not a big dealer. I just deal to support my habit. Could you just give me possession.” The officer also testified that he believed Garcia intended to sell the methamphetamine based on the way it was prepackaged into multiple smaller portions or “bindles.” Garcia did not take the stand. A jury convicted Garcia of both counts on August 24, 2012. The trial court found all of the alleged prior convictions to be true. At Garcia’s sentencing hearing, the trial court imposed a six-year sentence on count 2 and a concurrent four-year sentence on count 1. The court also ordered Garcia to pay attorney’s fees without holding a hearing regarding his ability to pay. Initially, the court ordered Garcia to pay $1,000 in attorney’s fees, but reduced the amount to $100 after Garcia’s trial counsel objected on the basis of Garcia’s “lengthy impending incarceration and lack of ability to pay.” II. DISCUSSION A. Attorney’s Fees Penal Code “[s]ection 987.8 authorizes the [trial] court to order criminal defendants to pay all or part of the cost of their appointed counsel after the trial court determines the defendant has a present ability to pay.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) The court is authorized to make an ability to pay determination