People v. Garcia CA1/1

Filed 3/29/23 P. v. Garcia CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A163498 v. JOSE ANTONIO GARCIA, (Contra Costa County Super. Ct. No. 5-200457-0) Defendant and Appellant.

Defendant Jose Garcia pleaded no contest to several charges and received probation. The trial court also imposed a restitution fine and two assessments over Garcia’s objection that he could not afford to pay them. Garcia’s only claim on appeal is that his constitutional rights were violated because the court imposed the monetary charges without first holding a hearing on his ability to pay them. We conclude that Garcia failed to comply with Penal Code1 section 1237.2, which requires a defendant to seek correction in the trial court before bringing an appeal in which “the sole issue” raised is “the erroneous imposition or calculation” of fines and fees. Therefore, we dismiss the appeal.

All further statutory references are to the Penal Code unless 1

otherwise noted.

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I. FACTUAL AND PROCEDURAL BACKGROUND In February 2020, Garcia was pulled over while driving a vehicle. A records check revealed that the vehicle had been reported stolen by its owner, who did not give Garcia permission to drive it. In addition, burglary tools and a small bag of methamphetamine were discovered inside the vehicle. Garcia was charged with felony counts of driving or taking a vehicle without consent and receiving a stolen motor vehicle, as well as misdemeanor counts of possessing a controlled substance and possessing burglary tools. A prior strike was also alleged.2 After Garcia pleaded no contest to all the charges and admitted the strike, the trial court suspended imposition of the sentence and placed him on probation for two years, with the condition that he serve 180 days in jail. In addition, the trial court imposed a restitution fine of $300 under section 1202.4, a $40 court operations assessment under section 1465.8, and a $30 criminal conviction assessment under Government Code section 70373. Noting that he was “currently unemployed” and had “no income or cash savings,” Garcia asked the court to waive or stay the monetary charges under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) based on his inability to pay them. The court declined to do so, stating, “Your request is noted. But . . . I’m going to impose the minimum restitution fine, which is 300 bucks.