Filed 9/15/20 P. v. Nickell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C089014
Plaintiff and Respondent, (Super. Ct. No. 18F5552)
v.
KATHERYN MARIE NICKELL,
Defendant and Appellant.
Defendant Katheryn Marie Nickell pleaded guilty to two counts of assault with a
firearm and admitted two firearm-use enhancement allegations. On March 4, 2019,
consistent with the terms of her plea agreement, the trial court sentenced defendant to
serve an aggregate term of seven years in state prison. The court awarded defendant 163
days of custody credit and ordered her to pay various fines and fees including a $600
restitution fund fine (suspending a matching parole revocation fine), a $60 criminal
conviction assessment, and an $80 court operations assessment. The court found
1
defendant did not have the ability to reimburse the county for the cost of her court-
appointed attorney.
Defendant challenges the trial court’s imposition of the restitution fund fine as
well as the criminal conviction and court operations assessments. Citing People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues imposition of the
assessments without an ability to pay hearing is fundamentally unfair and the assessments
must be stayed until an ability to pay hearing is held. She also argues that imposition of
the restitution fund fine without consideration of her ability to pay violates both the
Eighth Amendment prohibition against excessive fines and her right to equal protection.
She asserts the fine and assessments must be stayed “unless and until the trial court holds
an ability to pay hearing.” We disagree.
It is defendant’s burden to establish an inability to pay. (Accord People v. Kopp
(2019) 38 Cal.App.5th 47, 96 review granted Nov. 13, 2019, S257844;1 People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Defendant neither objected to the
restitution fines and assessments generally nor asserted her inability to pay them. (See
People v. Johnson (2019) 35 Cal.App.5th 134, 139 [raised objection to overcome
presumption that a defendant capable of working and sentenced to a lengthy prison term
can pay assessments with prison wages].)
As a result, the People contend defendant has forfeited the issues on appeal;
defendant disagrees. Existing authority supports both positions. (Compare People v.
Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155; People v. Nelson (2011) 51 Cal.4th
198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 with People v. Johnson,
supra, 35 Cal.App.5th at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485,
1 We may consider, as persuasive authority, the cases that have been granted review
by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
2
489.) We do not decide whether defendant has forfeited the issues. Instead, we reach her
arguments on the merits.
Criminal Conviction and Court Operations Assessments
We agree with the line of cases that conclude Dueñas was wrongly decided. (See
People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946
(Hicks); People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Aviles (2019)
39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927.)
The decision in Dueñas, supra, 30 Cal.App.5th 1157 is premised on authority
involving a due process right of access to the courts, and a bar against incarceration for
an involuntary failure to pay fees or fines. (Hicks, supra, 40 Cal.App.5th at p. 325,
rev.gr.) A postconviction imposition of fees and fines, however, does not interfere in any
respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The
postconviction imposition of fees and fines also does not result in any additional
incarceration, and therefore a liberty interest that due process would protect is not
present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the
question is whether due process generally otherwise compels the same result. (Hicks, at
p. 327.)
The People have a fundamental interest in punishing criminal conduct, as to which
indigency is not a defense (otherwise, defendants with financial means would suffer
discrimination). It would also be contrary to the rehabilitative purpose of probation if a
court were precluded at the outset from imposing the payment of fees and fines as part of
educating a defendant on obligations owed to society. (Hicks, supra, 40 Cal.App.5th at
pp. 327-328, rev.gr.) “For the reasons set forth above, we conclude that due process does
not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.”
(Id. at p. 329; see also People v. Kingston, supra, 41 Cal.App.5th at p. 279.)
3
Restitution Fund Fine
Defendant contends the imposition of the restitution fund fine without
consideration of ability to pay violates the Eighth Amendment’s prohibition against
excessive fines. However, she has failed to make a developed argument on this point that
is distinct from her due process argument. We decline to address this undeveloped claim.
(See Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985; Paterno v. State of
California (1999) 74 Cal.App.4th 68, 106.)
Defendant also contends the imposition of the restitution fund fine without
consideration of ability to pay violates equal protection. She asserts an indigent
defendant is disadvantaged compared to a wealthy defendant regarding the ability to pay
the same restitution fine and suffers more than a wealthy defendant. This, she states,
violates equal protection and is invidious discrimination. In In re Antazo (1970) 3 Cal.3d
100, the Supreme Court held that an indigent defendant could not be imprisoned for
failure to pay a fine. Otherwise a violation of equal protection would occur based on
wealth. (Id. at pp. 103-104.) The Supreme Court noted that imposing a fine and penalty
assessment on an indigent defendant did not by itself constitute a violation of equal
protection. (Id. at p. 116.) Here, defendant was not incarcerated because of her alleged
poverty. She was incarcerated because she pleaded no contest to two counts of assault
with a firearm and admitted two firearm-use enhancement allegations. To the extent
defendant relies on Dueñas, supra, 30 Cal.App.5th 1157 to support her equal protection
claim, we disagree with Dueñas and agree with Hicks in its entirety.
For all of the above reasons, we decline to remand the matter for a hearing on
defendant’s ability to pay the imposed restitution fund fine, criminal conviction
assessment, and court operations assessment, or stay any of them.
4
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
HULL, J.
5