People v. Nickell CA3

Filed 9/15/20 P. v. Nickell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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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,