People v. Lindstrom CA1/3

Filed 1/18/23 P. v. Lindstrom CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A164246 v. GARY LEE LINDSTROM, (Napa County Super. Ct. No. 20CR001844) Defendant and Appellant.

Defendant Gary Lee Lindstrom appeals from a judgment following his plea of no contest to one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)1) and two counts of driving under the influence (DUI) causing injury (Veh. Code, § 23153, subds. (a) & (b)), plus great bodily injury enhancements as to the DUI counts (§ 12022.7, subd. (a)). The trial court imposed sentences for each count, but stayed the sentence for one of the DUI counts pursuant to section 654. Defendant filed a notice of appeal indicating this appeal is based on post-plea matters. Defendant’s court-appointed counsel filed a brief raising no issues and seeking our independent review of the record pursuant to People v. Wende

1 All further statutory references are to the Penal Code unless otherwise indicated.

1

(1979) 25 Cal.3d 436. The brief includes counsel’s declaration stating that counsel reviewed the record and determined a brief raising no issues was appropriate; counsel informed defendant of his right to file a supplemental brief within 30 days; and counsel informed defendant that he could request the court to relieve him as counsel. A proof of service accompanying the brief indicates it was served on defendant by mail on July 28, 2022. Far more than 30 days has now elapsed, and defendant has not filed a supplemental brief. We reviewed the entire record on appeal and asked for further briefing on a single issue. Specifically, we asked if the judgment must be modified to impose a $40 court operations assessment (§ 1465.8, subd. (a)(1)) and a $30 conviction assessment (Gov. Code, § 70373, subd. (a)(1)) as to each count defendant was convicted of, including the stayed count. In our letter requesting supplemental briefing, we cited to case law holding that a section 654 stay does not extend to the court operations and conviction assessments at issue in this case. (People v. Sencion (2012) 211 Cal.App.4th 480, 483–484.) We also observed the record indicates defendant was convicted of three counts, but the sentencing minute order and abstract of judgment indicate the trial court only imposed an $80 court operations assessment pursuant to section 1465.8, and a $60 conviction assessment pursuant to Government Code section 70373. We received supplemental briefs from the parties. Defendant concedes there was error and that the aforementioned assessments are required for each count a defendant is convicted of, even when punishment is stayed pursuant to section 654. But, citing People v. Son (2020) 49 Cal.App.5th 565 (Son), he argues we should remand the matter to the trial court so that he may have the opportunity to request an ability to pay hearing. He asserts his “financial circumstances have likely changed significantly for the worse since