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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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
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he was sentenced” and notes the court had not determined restitution at the
time of the sentencing hearing and the prosecution was seeking a multi-
million dollar restitution award.
The People respond that the record on appeal discloses “there has been
neither claim nor finding of indigence or inability to pay. [Defendant] is in
good health and has been steadily employed as an electrician.” Moreover,
“[t]he lack of any evidence of inability to pay these assessments precludes any
implied reduction in them due to People v. Dueñas (2019) 30 Cal.App.5th
1157 or People v. Son (2020) 49 Cal.App.5th 565.”
Ultimately, we agree with the People. Son involved a defendant
convicted for committing voluntary manslaughter in 2011. (Son, supra, 49
Cal.App.5th at p. 576.) At sentencing, the trial court imposed a $30 court
facilities assessment pursuant to Government Code section 70373 (now called
a conviction assessment), and a $40 court operations assessment pursuant to
section 1465.8. (Son, at p. 577.) On appeal, relying on the then-recent
opinion in People v. Dueñas, supra, 30 Cal.App.5th 1157, the defendant
argued it was error to impose the assessments without a hearing regarding
his ability to pay them. (Son, at p. 575.) The appellate court agreed,
concluding that “courts must give defendants an opportunity to request an
ability to pay hearing for purposes of showing they are in fact unable to pay
these assessments.” (Id. at p. 591.) But the court also stated: “[the
defendant] did not have an opportunity to request an ability to pay hearing to
make a showing that he could not pay the court assessments imposed at
sentencing. Accordingly, ‘no evidence exists in the record from which to infer
any findings in this regard.’ ” (Ibid.)2
2 Presently, the issue of whether a court must consider a defendant’s
ability to pay before imposing or executing fines, fees, and assessments, is
3
This case is distinguishable from Son. Defendant’s sentencing hearing
occurred in October 2021, well after Dueñas and even Son. Defendant
neither objected on the ground of inability to pay nor requested an ability to
pay hearing below, though he had ample opportunity to do so, such as when
probation recommended the aforementioned assessments and other fines be
imposed, or when the sentencing court actually imposed the aforementioned
assessments, along with a $300 restitution fine, $7,500 in restitution to the
California Victim Compensation Board, and a $1723 DUI fine.
We do not read Son as requiring a new opportunity to request an
ability to pay hearing when correcting relatively small assessment amounts,
such as in this case, when a defendant has already had the opportunity to
object to greater fines, fees, and assessments on the ground of ability to pay.
And, in this case, we note that the total amount at issue is $70. There is no
evidence in the record that defendant is unable to pay this amount. Various
statements submitted at sentencing, including defendant’s, indicate he
remained gainfully employed at the time of sentencing. Defendant—still a
fairly young person— relayed to the probation department that he had no
physical or mental health issues. We will modify the judgment to correct the
amounts of the assessments imposed.
DISPOSITION
The judgment is modified to impose a total of $120 in court operations
assessments (§ 1465.8, subd. (a)(1)) and a total of $90 in conviction
assessments (Gov. Code, § 70373, subd. (a)(1)). The trial court is ordered to
prepare an amended abstract of judgment and forward a certified copy to the
before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th
47, review granted Nov. 13, 2019, S257844.)
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Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
RODRÍGUEZ, J.
People v. Lindstrom (A164246)
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