People v. Garcia CA2/7

Filed 6/25/21 P. v. Garcia CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B297549

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA149179) v.

DANIEL ERNEST GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Judgment of conviction affirmed; remanded with directions. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, David Glassman and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent. ______________________

INTRODUCTION A jury convicted Daniel Ernest Garcia of carrying a dirk or dagger. The trial court sentenced Garcia to three years in state prison, and imposed a $30 court facilities assessment, a $40 court operations assessment, and a $300 restitution fine. Pursuant to this court’s opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and following appointment of appellate counsel, Garcia moved in the trial court to “waive” the assessments and restitution fine. The trial court did not hold a hearing on Garcia’s ability to pay the assessments and fine, and denied Garcia’s motion to waive them. We reverse the trial court’s ruling and remand for the court to hold a hearing on Garcia’s ability to pay the assessments and fine. FACTUAL AND PROCEDURAL BACKGROUND A. The Information The information charged Garcia with one count of carrying a dirk or dagger (Pen. Code,1 § 21310). The information alleged Garcia had been previously convicted of two serious or violent felonies within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and had served four prior prison terms within the meaning of section 667.5, subdivision (b). Garcia pleaded not guilty to the charge and denied the special allegations.2