People v. McKinney CA3

Filed 12/6/22 P. v. McKinney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C095506

Plaintiff and Respondent, (Super. Ct. No. STKCRFECOD20190013524) v.

JENNIFER RAEANN MCKINNEY,

Defendant and Appellant.

A trial court imposed a restitution fine, criminal conviction assessment, and court operations assessment on defendant Jennifer Raeann McKinney after she pleaded guilty to several counts. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, defendant now argues the fine and assessments must be stayed pending a hearing on her ability to pay, and asserts the fine is unconstitutional absent such a hearing. We will modify the judgment to reflect one minor legislative change, and affirm the judgment as modified.

FACTS AND HISTORY OF THE PROCEEDINGS Defendant engaged in identity theft and opened accounts in the names of several victims. Defendant pleaded guilty to six counts of identity theft (Pen. Code, § 530.5, subd. (a); statutory section citations that follow are to the Penal Code), and one count

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each of attempted grand theft auto (§§ 664, 487, subd. (d)(1)), conspiracy to commit grand theft auto (§§ 182, subd. (a)(1), 487, subd. (d)(1)), and acquiring identifying information with intent to defraud (§ 530.5, subd. (c)(3)). When interviewed by a probation officer for a presentencing report, defendant expressed remorse and said she was “willing and capable to start making payments of restitution today if you guys want me to.” Defense counsel reiterated these statements at the sentencing hearing, asking the court to consider probation, which would allow defendant to “maintain her employment” because she was attending school and “when she gets out from under this, she’s going to be looking for work with her new degree.” Counsel explained defendant had done volunteer work and was also employed at a local kennel. The court denied probation and imposed an aggregate sentence of six years four months, with two years eight months of the sentence to be served in custody and the remainder of the sentence to be served on community supervision. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $30 collection surcharge (former § 1202.4, subd. (l)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). Defense counsel did not object to the fines and assessments.