People v. Gonzalez CA3 ( 2021 )

Filed 12/13/21 P. v. Gonzalez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
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THE PEOPLE, C092899
Plaintiff and Respondent, (Super. Ct. No. 19CR001653)
v.
MICHELE LYNN GONZALEZ,
Defendant and Appellant.
Defendant Michele Lynn Gonzalez pled no contest to voluntary manslaughter and
was sentenced to six years in prison. The court also imposed a restitution fine, criminal
conviction assessment, and court operations assessment. On appeal, defendant contends
pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, the imposition
of the restitution fine and court assessments violates her constitutional rights because
there was no determination of her ability to pay. Finding defendant forfeited this
argument, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant stabbed her boyfriend in the chest with scissors during an argument; he
later died from the stab wounds. Defendant was charged with murder (Pen. Code, § 187,
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subd. (a)), and voluntary manslaughter (Pen. Code, § 192, subd. (a)). On February 26,
2020, defendant pled no contest to voluntary manslaughter and the murder charge was
dismissed.
On October 13, 2020, the trial court sentenced defendant to six years (midterm) in
prison. The court asked defense counsel to waive formal reading “of the remaining terms
and conditions, including fines and fees,” and counsel agreed. The trial court imposed
the fines and fees recommended in the probation report, which included a $1,800
restitution fine, a $1,800 stayed parole revocation restitution fine, a $30 conviction
assessment, and a $40 court operations assessment.
DISCUSSION
Relying on Dueñas, defendant argues the trial court violated her right to due
process and equal protection under the United States and California Constitutions by
imposing a restitution fine and additional fees without considering her ability to pay. She
also asserts the restitution fine and additional fees violated the ban on excessive fines
under the United States and California Constitutions. Alternatively, if she forfeited either
issue by failing to object at sentencing, she contends reversal is required based on
ineffective assistance of counsel. The People assert forfeiture because Dueñas was
decided nearly 21 months prior to defendant’s sentencing.
Defendant forfeited her challenge to the fines, fees, and assessment because the
resentencing hearing was held after Dueñas was decided; there was thus authority for
requesting an ability-to-pay hearing at the time of the resentencing hearing, and
defendant failed to do so. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
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(2013) 57 Cal.4th 986, 1009.) On direct appeal, a judgment will be reversed for
ineffective assistance “only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.)
Defendant points to nothing in the record as to why defense counsel failed to
object to the imposition of the fines, fees, and assessment; and the record does not
affirmatively disclose that counsel had no tactical purpose for doing so. Perhaps counsel
had a reason to conclude defendant could pay the $1,870 in fines and fees. Defendant’s
prejudice analysis, moreover, does not show a reasonable probability that the outcome
would have been different had her counsel objected. Defendant relies on her asserted
poor health and her being “represented by appointed counsel,” but notes she had been
receiving $921 per month in disability benefits during that time. This does not meet
defendant’s burden of showing resulting prejudice.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Renner, J.
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