People v. Garcia CA3

Filed 5/27/21 P. v. Garcia 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
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THE PEOPLE, C092565
Plaintiff and Respondent, (Super. Ct. No. 20CR-001380)
v.
JOHN PETER GARCIA,
Defendant and Appellant.
Appointed counsel for defendant John Peter Garcia filed an opening brief that sets
forth the facts of the case and asks this court to review the record and determine whether
there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Our
review of the record has found sentencing errors, which we will modify the judgment to
correct. Finding no other arguable errors that would result in a disposition more
favorable to defendant, we will affirm the judgment as modified.
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FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with assault by means likely to cause great
bodily injury (Pen. Code, § 245, subd. (a)(4); count I),1 mayhem (§ 203; count II), battery
with serious bodily injury (§ 243, subd. (d); count III), and misdemeanor battery (§ 242;
count IV). The prosecution also alleged defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)) as to the assault count.
Defendant pleaded guilty to the assault count and admitted the great bodily injury
allegation for dismissal of the remaining counts. The parties stipulated the factual basis
for the plea was provided in Tehama County Sheriff’s Department case No. 20-00994.
The trial court imposed a seven-year sentence in state prison, then suspended execution
of the sentence and placed defendant on a five-year probation term. The terms of
defendant’s probation included service of 180 days in county jail. The court also ordered
defendant to pay fines and assessments as set forth in the probation order, which included
a $600 restitution fine (§ 1202.4, subd. (b)), a $600 probation revocation restitution fine
(§ 1202.44), which was “to be stayed upon successful completion of probation,” a $40
court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code,
§ 70373).
Defendant timely appealed without a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
1 Undesignated statutory references are to the Penal Code.
2
days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.
Our review has found errors in the imposition of fees and assessments. The
probation order includes a $40 court operations assessment (§ 1465.8) and a $30
conviction assessment (Gov. Code, § 70373). These fees are not punishment and cannot
be included as terms of probation; rather, they should have been separately ordered.
(People v. Kim (2011) 193 Cal.App.4th 836, 842-843; People v. Soto (2016)
245 Cal.App.4th 1219, 1237.) We will modify the judgment to reflect that the $40 court
operations assessment and $30 conviction assessment are separately imposed and are not
conditions of probation.
Further, the probation revocation restitution fine should have been imposed, then
stayed pending revocation of probation, rather than imposed and stayed only upon the
successful completion of probation. (§ 1202.44 [“[t]his additional probation revocation
restitution fine shall become effective upon the revocation of probation”]; People v.
Guiffre (2008) 167 Cal.App.4th 430, 434 [“a convicted defendant who is granted
probation will ordinarily be subject to two restitution fines—a state Restitution Fund fine
under section 1202.4 [subdivision] (b) and a probation revocation restitution fine under
section 1202.44, which is stayed unless probation is revoked”].) We will modify the
judgment accordingly.
Finally, we note that after defendant’s plea was accepted, the prosecution moved
to dismiss the outstanding counts, but the trial court did not actually grant the motion or
dismiss the counts as contemplated by the parties’ agreement.2 We will modify the
judgment to dismiss the counts. (§ 1260; see People v. Mancheno (1982) 32 Cal.3d 855,
860-861.)
2 The minute order reflects the counts were dismissed, but the oral pronouncement does
not.
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We find no other arguable error that would result in a disposition more favorable
to defendant and affirm the judgment as modified.
DISPOSITION
The judgment is modified to: (1) reflect that the $40 court operations assessment
(§ 1465.8) and $30 conviction assessment (Gov. Code, § 70373) were separately imposed
and are not conditions of probation; (2) stay the $600 probation revocation restitution fine
(§ 1202.44) pending revocation of probation; and (3) dismiss counts II through IV of the
charging document. The trial court is directed to amend the probation order consistent
with this opinion and provide a copy to the probation department. As modified, the
judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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