People v. Zavala CA3

Filed 6/28/22 P. v. Zavala CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C095179

Plaintiff and Respondent, (Super. Ct. No. 20CF06250)

v.

PEDRO LYBRAND ZAVALA,

Defendant and Appellant.

Defendant Pedro Lybrand Zavala appeals the trial court’s imposition of court fees and a restitution fine after denying his request for an ability to pay hearing. We affirm. BACKGROUND Due to the limited scope of issues presented on appeal, a full recital of the facts is unnecessary. It suffices to say that after the victim broke out the rear window of defendant’s car, defendant drove his car into the victim, causing injuries that resulted in the amputation of the victim’s leg.

1

The People filed a complaint charging defendant with mayhem (Pen. Code, § 203)1 and assault with a deadly weapon. (§ 245, subd. (a)(1).) The complaint also alleged defendant inflicted great bodily injury on the victim in the assault. (§ 12022.7, subd. (a).) On September 9, 2021, pursuant to a plea agreement, defendant pleaded no contest to assault with a deadly weapon and admitted he inflicted great bodily injury in exchange for a sentence of seven years. (§§ 245, subd. (a)(1), 12022.7, subd. (a).) The remaining charge was dismissed pursuant to a Harvey2 waiver. The same day, the trial court sentenced defendant to seven years in prison. It also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 parole revocation restitution fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment. (Gov. Code, § 70373.) Defendant did not object to any of the fees or fines. Two months later, on November 8, 2021, defendant filed a notice of appeal. Five months after sentencing, defendant’s counsel wrote a letter to the trial court asking it to stay the restitution fine in order for the prosecution to demonstrate defendant had the ability to pay it and strike the assessments pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court acknowledged receipt of the communication and denied the request. DISCUSSION Defendant contends the trial court abused its discretion in failing to stay the restitution fine and strike the assessments. The Attorney General responds that defendant forfeited this contention by failing to raise a contemporaneous objection at sentencing. We agree with the Attorney General.