Fear Not Law Articles: P. v. Garcia

P. v. Garcia

Filed 1/11/10 P. v. Garcia CA5

Received for posting 1/13/10

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

ANTHONY GARCIA,

Defendant and Appellant.

F057167

(Super. Ct. No. MCR033645A)

O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Anthony Garcia, pled no contest to attempted grand theft from a person (Pen. Code, 487, subd. (c)).^{^[1]}

On February 25, 2009, the court placed Garcia on probation for five years on condition that he serve 99 days local time with credit for 99 days served.

On appeal, Garcia contends the court erred in imposing a $10 fine pursuant to section 1202.5 that with penalty assessments and surcharges totaled $36. We will find merit to this contention. In all other respects, we will affirm.

FACTS

On November 19, 2008, Garcia entered a Payless Shoe Source in Madera, pushed a cashier out of the way, and attempted to open a cash register. Before he could get any money out of the register, Garcia ran from the store, got in a waiting car, and fled from the scene. He was arrested later that day.

DISCUSSION

Garcia contends the court erred in imposing a $10 crime prevention fine pursuant to section 1202.5 and the $26 in penalties and surcharges that raised this amount to $36, because section 1202.5 does not apply to attempts to commit any of the offenses listed in that section. Respondent concedes and we agree.

Section 1202.5, subdivision (a) in pertinent part provides:

In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed....

Since section 1202.5 does not state that it applies to attempts to commit any of the offenses listed in that section, we agree that the court erred in ordering Garcia to pay the $10.00 fine and the penalties and assessments that increased the base fine to $36.

DISPOSITION

The judgment is modified to strike the $10 fine pursuant to section 1202.5 and the $26 in penalties and surcharges the court imposed. The trial court is directed to issue an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^{^[1]} All further statutory references are to the Penal Code.

Description	Appellant, Anthony Garcia, pled no contest to attempted grand theft from a person (Pen. Code, 487, subd. (c)). On February 25, 2009, the court placed Garcia on probation for five years on condition that he serve 99 days local time with credit for 99 days served. On appeal, Garcia contends the court erred in imposing a $10 fine pursuant to section 1202.5 that with penalty assessments and surcharges totaled $36. We will find merit to this contention. In all other respects, Court affirm.
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