People v. Pacheco CA6

Filed 8/26/22 P. v. Pacheco CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047843 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 213441)

v.

ROBERT PACHECO,

Defendant and Appellant.

THE COURT 1 Defendant Robert Pacheco appeals from the judgment imposed after he pleaded no contest to participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)),2 conspiracy to sell methamphetamine (§ 182, subd. (a)(1) and Health & Saf. Code, § 11379), second degree robbery (§§ 211-212.5, subd. (c)), and possession of an assault weapon (§ 30605, subd. (a)). On appeal Pacheco contends that the trial court erred in not striking certain assessments and that his counsel provided ineffective assistance of counsel. For the reasons set forth below, we affirm.

1 Before Greenwood, P. J., Grover, J. and Wilson, J. 2 Future undesignated statutory references are to the Penal Code.

I. PROCEDURAL BACKGROUND3 After Pacheco pleaded no contest in accordance with the negotiated disposition, the court sentenced him to 19 years in prison. At sentencing, the trial court ordered Pacheco to pay a $280 restitution fine (§ 1202.4, subd. (b)(2)),4 a $280 suspended parole revocation fine (§ 1202.45), a $160 court operations assessment (§ 1465.8), and a $120 criminal conviction assessment (Gov. Code, § 70373). The court stated at the sentencing hearing that it had considered Pacheco’s “ability to earn while in prison” in imposing the penalties, fines, and assessments. The court then asked whether either party had anything further to add, to which Pacheco’s counsel replied, “No, just that Mr. Pacheco was appointed counsel and he was indigent.” Pacheco’s counsel did not request a ruling on Pacheco’s ability to pay the assessments based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).5 Pacheco timely appealed. While the appeal was pending, Pacheco’s appellate counsel filed a motion in the trial court requesting that the court strike the operations assessment and criminal conviction assessment pursuant to Dueñas. Appellate counsel argued that the court should strike the assessments because a prisoner is not guaranteed employment within the California prison system, and if employed, the rate of pay is very low, such that it would take Pacheco many years to pay the assessments imposed at his sentencing. The trial court denied the motion to strike the assessments. In its order, the court stated that Pacheco had not shown that the sentencing court did not consider his ability to pay the assessments. The court further noted that Pacheco had not shown an inability to work while incarcerated, but instead contended only that it would take him years to pay the challenged assessments.