People v. Tolosa CA3

Filed 1/16/24 P. v. Tolosa CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C098381

v. (Super. Ct. No. 22FE019505)

LOPE ELWIN TOLOSA,

Defendant and Appellant.

In March 2023, defendant Lope Elwin Tolosa pleaded no contest to second degree burglary (Pen. Code, § 459)1 and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to state prison for the low term of 16 months, doubled to 32 months for the strike, and indicated that at the conclusion of the prison term, defendant would be placed on parole for up to three years. Defense counsel noted that defendant was indigent and asked that all discretionary fines and fees be reduced to their minimum. The abstract of judgment reflects a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine (§ 1202.45), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends the trial court should have considered his ability to pay the fines and assessments, and if the issue is forfeited because it was not asserted in the trial court, his trial counsel was ineffective. He further contends that because the maximum period of parole is now two years under section 3000.01, the judgment must be clarified to reflect current law. We will affirm the judgment. DISCUSSION I Defendant contends the trial court should have considered his ability to pay the fines and assessments, and if the issue is forfeited because it was not asserted in the trial court, his trial counsel was ineffective. Defendant’s trial counsel did not request an ability to pay hearing in the trial court. Rather, trial counsel asked that discretionary fines and fees be reduced to the minimum. Defendant’s challenges based on ability to pay, including his arguments based on People v. Dueñas (2019) 30 Cal.App.5th 1157, are forfeited. Anticipating forfeiture, defendant argues his trial counsel was ineffective. On direct appeal, a judgment will be reversed for ineffective assistance “only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) The record does not establish that defendant lacked the ability to pay the fines and assessments. Defendant’s trial counsel generally stated that defendant was indigent but asked for minimum discretionary fines and fees. Defense counsel may have had information regarding defendant’s resources that does not appear in the record on appeal. The record does not affirmatively disclose that counsel had no tactical purpose in declining to request a hearing on ability to pay. “[I]t is inappropriate for an appellate