People v. Garcia CA6

Filed 12/18/13 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039092 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1223717)

v.

RONALD ALLAN GARCIA,

Defendant and Appellant.

Defendant Ronald Allan Garcia pleaded no contest to possession of marijuana for sale (Health & Saf. Code, § 11359), three counts of possession of a dirk or dagger (Pen. Code, § 21310), possession of burglary tools (Pen. Code, § 466), possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1), and false representation of his name to a peace officer (Pen. Code, § 148.9). The sentencing court imposed a 32-month prison term in accord with a plea agreement, plus several fees and penalty assessments, including drug program fees under Health and Safety Code section 11372.7. That section requires the sentencing court to determine whether a defendant has the ability to pay drug program fees before imposing them. The court made no explicit finding of defendant’s ability to pay the fees. Defendant, however, lodged no objection to the trial court’s imposition of the fees.

On appeal, defendant challenges the drug program fees even though he had not objected to them in the trial court. He claims the evidence was insufficient to show his ability to pay the fees. Defendant further contends the minutes and abstract of judgment incorrectly state the amounts of various fees and penalty assessments. Because defendant did not object to the imposition of drug program fees in the trial court, he did not preserve his claim on appeal that the evidence was insufficient to show his ability to pay them. However, we order the minutes and abstract of judgment corrected to state the proper amounts of fees and penalty assessments as reflected in the record of the sentencing hearing. I. FACTUAL AND PROCEDURAL BACKGROUND In January 2012, a San José police officer stopped defendant in a high crime area suffering from a recent increase in thefts, robberies, and burglaries. Defendant, wearing dark clothes, a black beanie and two backpacks, was sitting on a bicycle in the back alley of a business complex. Defendant gave the officer a false name and birth date. As the officer questioned defendant, the officer smelled marijuana. The officer patted down defendant and found wire cutters, a folding knife, a steak knife, an axe, and a switch blade. After defendant consented to a search of his backpacks, the officer found a half-pound of marijuana and several small, empty, plastic baggies. The officer also found a hypodermic needle. Defendant pleaded no contest to: (1) possession of marijuana for sale (Health & Saf. Code, § 11359); (2) three counts of possession of a dirk or dagger (Pen. Code, § 21310); (3) possession of burglary tools (Pen. Code, § 466); (4) possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1); and (5) false representation of identity to a peace officer (Pen. Code, § 148.9). Defendant also admitted a prior “strike” conviction and three prior prison terms. (Pen. Code, § 667, subds. (b) & (e).) At sentencing, the court reduced the three counts of possession of a