1

Filed 2/22/24 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN ALEXANDER GARCIA,

Defendant and Appellant.

C098813

(Super. Ct. Nos. 20CR003156, 

21CR002691, 23CR000581)

Appointed counsel for defendant Brian Alexander Garcia asked this court 

to review the record and determine whether there are any arguable issues on appeal. 

(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, 

we will modify the judgment to strike a theft fine and associated penalty assessments that 

should not have been imposed, and affirm the judgment as modified. We will also direct 

the trial court to amend and correct the abstract of judgment.

I

This appeal involves three separate cases. In case No. 20CR003156 (case No. 

156), police responded to a reported gunshot and found defendant with a short-barreled 
2

shotgun after he accidentally shot himself in the leg. In case No. 21CR002691

(case No. 691), police stopped defendant and found him driving a stolen vehicle. 

And in case No. 23CR000581 (case No. 581), defendant threatened a victim with a knife 

over money allegedly owed.

In case No. 156, defendant pleaded guilty to possession of a firearm as a convicted 

felon. (Pen. Code, § 29800, subd. (a)(1).)

1 In case No. 691, he pleaded guilty to 

receiving a stolen motor vehicle. (§ 496d.) And in case No. 581, he pleaded guilty to 

attempted robbery. (§§ 664, 211.) The parties agreed to a sentencing lid of three years

four months and to dismissal of the remaining charges.

At the sentencing hearing, defendant asked to be placed on probation, but the trial 

court rejected the request based on defendant’s conduct in the attempted robbery offense

and the fact defendant had been on post-release community supervision at the time of the 

offense. Consistent with the plea agreement, the trial court imposed an aggregate 

sentence of three years four months, consisting of two years for the attempted robbery, 

a consecutive eight months for receiving a stolen motor vehicle, and a consecutive eight 

months for possession of a firearm. The trial court imposed $600 restitution fines 

(§ 1202.4) and $600 parole revocation fines (§ 1202.45) in each case, and imposed 

$40 court operations assessments (§ 1465.8) and $30 criminal conviction assessments 

(Gov. Code, § 70373) for each conviction. The trial court also imposed a $10 theft fine 

(§ 1202.5) plus applicable penalty assessments, for a total of $39. The abstract of 

judgment also lists $600 probation revocation fines (§ 1202.44) for each case.

Defendant’s notice of appeal indicated his appeal is based on the sentence or other 

matters occurring after the plea that does not affect the validity of the plea. He did not 

obtain a certificate of probable cause.

1 Undesignated statutory references are to the Penal Code.
3

II

Appointed counsel filed an opening brief setting forth the facts of the case and 

asking this court to review the record and determine whether there are any arguable 

issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of 

the right to file a supplemental brief within 30 days of the date of filing the opening brief. 

More than 30 days elapsed and we received no communication from defendant.

Based on our review of the record, we have determined that the theft fine and 

associated penalty assessments should not have been imposed and the abstract of 

judgment must be amended and corrected.

The trial court imposed a theft fine under section 1202.5 for the attempted robbery 

conviction. Section 1202.5 requires imposition of a $10 fine for an enumerated list of 

offenses, including robbery, but it does not encompass attempted robbery. (People v. 

Jefferson (2016) 248 Cal.App.4th 660, 663.) We will modify the judgment to strike the 

theft fine and associated penalty assessments.

In addition, although not orally imposed by the trial court, the abstract of judgment 

listed a $600 probation revocation fine under section 1202.44 for each case, for a total of 

$1,800. “Where there is a discrepancy between the oral pronouncement of judgment and 

the minute order or the abstract of judgment, the oral pronouncement controls.” (People 

v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstract of judgment must be 

amended and corrected to reflect the orally imposed judgment as modified.

Having undertaken an examination of the entire record, we find no other arguable 

error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to strike the section 1202.5 theft fine and associated 

penalty assessments. The judgment is affirmed as modified. The trial court is directed to 

prepare an amended and corrected abstract of judgment reflecting the orally imposed 

judgment as modified (omitting the theft fine and associated penalty assessments and the
4

probation revocation fines) and to send a certified copy of the amended and corrected 

abstract of judgment to the Department of Corrections and Rehabilitation.

 /S/

MAURO, Acting P. J.

We concur:

 /S/

BOULWARE EURIE, J.

 /S/

MESIWALA, J.