Filed 6/25/21 P. v. Garcia CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL ERNEST GARCIA,

Defendant and Appellant.

 B297549

 (Los Angeles County

 Super. Ct. No. VA149179)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael A. Cowell, Judge. Judgment of 

conviction affirmed; remanded with directions.

Justin Behravesh, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Noah P. Hill, David Glassman 

and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff 

and Respondent.

______________________
2

INTRODUCTION

A jury convicted Daniel Ernest Garcia of carrying a dirk or 

dagger. The trial court sentenced Garcia to three years in state 

prison, and imposed a $30 court facilities assessment, a $40 court 

operations assessment, and a $300 restitution fine. Pursuant to 

this court’s opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas), and following appointment of appellate counsel, Garcia 

moved in the trial court to “waive” the assessments and restitution 

fine. The trial court did not hold a hearing on Garcia’s ability to 

pay the assessments and fine, and denied Garcia’s motion to waive 

them. We reverse the trial court’s ruling and remand for the court 

to hold a hearing on Garcia’s ability to pay the assessments and 

fine.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information

The information charged Garcia with one count of carrying a 

dirk or dagger (Pen. Code,1 § 21310). The information alleged 

Garcia had been previously convicted of two serious or violent 

felonies within the meaning of the three strikes law (§§ 667, 

subds. (b)-(j), 1170.12) and had served four prior prison terms

within the meaning of section 667.5, subdivision (b). Garcia

pleaded not guilty to the charge and denied the special 

allegations.2

1 All further undesignated statutory references are to the 

Penal Code.

2 The trial court bifurcated the trial on the prior conviction 

and prior prison term allegations from the trial on the underlying 

charge. Garcia waived his right to a jury trial on the allegations, 

and the court found them true. 
3

B. The Evidence at Trial

On November 1, 2018 at approximately 6:31 a.m. Whittier 

Police Officer Edgar Cabral responded to a call that a person with 

a machete was causing a disturbance at a gas station. When 

Officer Cabral arrived, other police officers had detained Garcia. 

As the officers handcuffed Garcia, an officer retrieved a 21-inch 

machete from the inside of Garcia’s left pant leg. 

Garcia testified he had been released from jail three days 

before his arrest and was waiting for daybreak to meet with his 

parole officer. Garcia was homeless. Garcia testified he had been 

assaulted twice in the three days since his release from jail, each 

time by a different group of three people. Garcia was carrying the

machete for self-defense. Garcia initially placed the machete on a 

wall near the gas station’s convenience store, but the store clerk 

directed Garcia to put it away, so Garcia put the machete in his 

pants. 

C. The Jury Verdict, the Sentencing, and Garcia’s Postjudgment

Motion 

The jury found Garcia guilty of carrying a dirk or dagger.

The trial court struck Garcia’s prior convictions and prior prison 

term allegations. The court sentenced Garcia to the upper term of 

three years in state prison. The court imposed a $30 court 

facilities assessment (Gov. Code, § 70373), a $40 court operations 

assessment (Pen. Code, § 1465.8), and a $300 restitution fine (id. § 

1202.4, subd. (b)).

3 

Garcia filed a timely appeal on April 5, 2019. This court 

appointed appellate counsel for Garcia on July 1, 2019. 

3 The court also imposed and suspended a $300 parole 

revocation restitution fine. (§ 1202.45.)
4

On July 31, 2019, at a trial court hearing requested by 

Garcia’s defense counsel, counsel informed the court that Garcia’s 

appellate counsel had identified “only two issues that are viable on 

appeal.” The first issue pertained to the court’s miscalculation of 

Garcia’s presentence custody credits, which the court corrected at 

the hearing.4

The second issue was defense counsel’s failure to object at 

Garcia’s sentencing hearing to the court’s imposition of the court 

assessments and restitution fine without holding an ability-to-pay 

hearing. Defense counsel stated: “[T]here was an issue with 

respect to my failure to object to the imposition of fines and fees 

without an ability to pay hearing under People v. Dueñas. I guess 

the defendant was homeless if I remember correctly. So I believe 

the request is in essence to waive all fees and fines.” 

The court responded, “I can see that you didn’t make that 

request, but is there any reason why he couldn’t get a job while in

state prison? That’s the standard. Everybody goes in there and—

very few of them are paying that out of wealthy relatives. It’s 

based upon what they earn while in prison.” Defense counsel 

continued: 

“I understand, Your Honor, but I think the issue that 

[Garcia’s appellate counsel] has is that I was 

supposed to make the objection that before the court 

can assess any fees and fines [Garcia] has to have an 

ability to pay hearing and, in essence, one should 

have been had. And at that specific moment in time 

[Garcia] had no ability to pay. So under those 

4 The court subsequently corrected the calculation of Garcia’s 

presentence custody credits again. 
5

circumstances, I would ask the court to waive fees 

and fines.” 

The trial court denied the request, stating, “The record will reflect 

that you have made the request to reduce the fines. The court is 

denying that request. It was a statutory minimum imposed. 

Thank you.” 

Garcia filed a timely appeal from the trial court’s denial of 

his postjudgment motion.5

DISCUSSION

In Dueñas this court found “the assessment provisions of 

Government Code section 70373 and Penal Code section 1465.8, if 

imposed without a determination that the defendant is able to pay, 

are . . . fundamentally unfair; imposing these assessments upon 

indigent defendants without a determination that they have the 

present ability to pay violates due process under both the United 

States Constitution and the California Constitution.”6 (Dueñas, 

supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 

42 Cal.App.5th 647, 654-655 (Belloso), review granted Mar. 11, 

2020, S259755.) A restitution fine under Penal Code section 

1202.4, subdivision (b), however, “is intended to be, and is 

5 This court consolidated Garcia’s appeals. Garcia’s appellate 

counsel subsequently filed a brief pursuant to People v. Wende

(1979) 25 Cal.3d 436 raising no appellate issues. We relieved 

Garcia’s appellate counsel and appointed new appellate counsel for 

Garcia on March 9, 2020.

6 In People v. Kopp (2019) 38 Cal.App.5th 47, review granted 

November 13, 2019, S257844, the Supreme Court has directed the 

parties to brief the following issues: “Must a court consider a 

defendant’s ability to pay before imposing or executing fines, fees, 

and assessments? If so, which party bears the burden of proof 

regarding defendant’s inability to pay?”
6

recognized as, additional punishment for a crime.” (Dueñas, at p. 

1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), 

provides a defendant’s inability to pay a restitution fine may not 

be considered a “compelling and extraordinary reason” not to 

impose the statutory minimum fine. As this court held in Dueñas, 

to avoid a serious constitutional question if a restitution fine were 

to be imposed on an indigent defendant, “the court must stay the 

execution of the fine until and unless the People demonstrate that 

the defendant has the ability to pay the fine.” (Dueñas, at p. 1172; 

accord, Belloso, at p. 655.)

The Attorney General argues Garcia’s $300 restitution fine 

should be analyzed under the excessive fines clause of the Eighth 

Amendment. He maintains the restitution fine is not grossly 

disproportionate to the gravity of Garcia’s offense, and thus the 

fine is not unconstitutionally excessive. The Attorney General also 

asserts the restitution fine does not violate due process because it 

does not implicate a fundamental liberty interest and is rationally 

related to the State’s interest in punishing criminal defendants 

and deterring unlawful conduct. He concedes that imposition of 

the court assessments without an ability-to-pay hearing violates 

due process, but contends any error here was harmless because no 

evidence demonstrates Garcia cannot pay the assessments.7

In Belloso this court rejected the argument “a constitutional 

challenge to imposition of fines and fees on an indigent defendant 

should be analyzed under an excessive fines analysis instead of a 

7 The Attorney General does not contend Garcia forfeited the 

argument that we should remand the case for an ability-to-pay 

hearing, either by not requesting an ability-to-pay hearing at

sentencing or by defense counsel’s arguments at the July 31, 2019 

hearing.
7

due process framework,” and “affirm[ed] this court’s due process 

analysis in Dueñas.” (Belloso, supra, 42 Cal.App.5th at pp. 656, 

660.) The Attorney General does not address Belloso.

Further, we cannot conclude that any error in imposing the 

court assessments against Garcia without an ability-to-pay 

hearing was harmless beyond a reasonable doubt. Garcia argues 

he is indigent and was unemployed when he was arrested. The 

Attorney General argues Garcia’s age at sentencing (47 years old) 

“suggest[s] that he was able-bodied and capable of performing 

work,” and we therefore can “presume” Garcia could pay the 

assessments through “his prison wages and future earnings.”

Prison wages are an appropriate factor for the trial court to 

consider in determining a defendant’s ability to pay assessments 

and fines. (People v. Santos (2019) 38 Cal.App.5th 923, 934 [“in 

weighing the defendant’s ability to pay the fee at issue, the trial 

court may consider, if applicable, the defendant’s ability to earn 

wages such as while serving his or her prison sentence”]; People v. 

Castellano (2019) 33 Cal.App.5th 485, 490 [in evaluating a 

defendant’s ability to pay, the court may consider “potential prison 

pay during the period of incarceration to be served by the 

defendant”].) 

Here, however, the trial court did not hold a hearing on 

Garcia’s ability to pay the assessments and fine. Defense counsel 

observed that an ability-to-pay hearing should have occurred

before the court imposed the assessments and fine, but did not

occur. Defense counsel then asked the court to waive the 

assessments and fine; the court declined. The court’s brief 

exchange with defense counsel was not a hearing at which the 

trial court “ascertain[ed] [the] defendant’s present ability to pay”

the assessments and fine. (Dueñas, supra, 30 Cal.App.5th at

p. 1164.) Because the trial court did not hold an ability-to-pay 
8

hearing, Garcia did not have an opportunity to present evidence 

supporting his claims of indigence and unemployment. We cannot 

conclude on this undeveloped record that Garcia has the ability to 

pay the assessments and fine.

DISPOSITION

The judgment of conviction is affirmed. We remand for the

trial court to hold a hearing to allow Garcia to present evidence 

demonstrating his inability to pay the court facilities and court 

operations assessments and the restitution fine. If Garcia 

demonstrates his inability to pay the assessments, the trial court 

must strike them. If the trial court determines Garcia does not 

have the ability to pay the restitution fine, the trial court must 

stay execution of the fine. 

McCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Orange County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.