People v. Kincherlow CA2/5 ( 2020 )

Filed 11/25/20 P. v. Kincherlow CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303342
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. MA073837)
v.
ROBERT KINCHERLOW,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, David E. Madeo,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Robert Kincherlow appeals
the trial court’s imposition of $120 in court operations fees
(Pen. Code, § 1465.8),1 $90 in criminal conviction assessment
fees (Gov. Code, § 70373), and a $300 restitution fine
(§ 1202.4, subd. (b)). Kincherlow contends that the trial
court violated his Eighth and Fourteenth Amendment rights
by determining that he had the ability to pay the fees and
fine because he was unemployed and indigent at the time of
the sentencing hearing and was likely to remain unemployed
and indigent following release from prison. We affirm the
trial court’s judgment.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
PROCEDURAL HISTORY2
The jury found Kincherlow guilty of assault with a
firearm (§ 245, subd. (a)(2) [count 2]), and found true the
allegation that Kincherlow personally used a firearm in that
count (§ 12022.5). It also found Kincherlow guilty of felon in
possession of a firearm (§ 29800, subd. (a)(1) [count 5]) and
two counts of negligent discharge of a firearm (§ 246.3, subd.
(a) [counts 6 and 7]). He was sentenced to eight years eight
months in prison. Kincherlow timely appealed. We held
that the trial court erred by failing to give a unanimity
instruction, reversed his conviction for assault with a
firearm in count 2 and the corresponding enhancement for
personal use of a firearm, and remanded the matter for
further proceedings.
On remand, the prosecution opted not to retry count 2,
and the charge was dismissed pursuant to section 1382. The
trial court sentenced Kincherlow on the remaining counts
(counts 5, 6, & 7) to three years eight months in state prison.
At the sentencing hearing, the trial court initially
imposed $120 in court operations fees (Pen. Code, § 1465.8),
$90 in criminal conviction assessment fees (Gov. Code,
§ 70373), and a $900 restitution fine (§ 1202.4, subd. (b)).
2 The summary of the underlying proceedings is taken
from our prior unpublished opinion in People v. Kincherlow
(Aug. 28, 2019, B292642). We do not include a recitation of
the underlying facts of the offenses as they are not necessary
to our resolution of the issues.
3
Counsel informed the court that Kincherlow was indigent,
and requested that the court waive any fees that it had the
authority to waive.
The court questioned Kincherlow concerning his ability
to pay. Kincherlow informed the court that his house had
been foreclosed upon, and that he had not received any
“refunds.” Kincherlow stated that he had lost his job and
was no longer receiving worker’s compensation payments.
The court asked, “So upon your release, do you believe you’d
be dependent on some sort of government benefits or
something like that?” Kincherlow responded, “I am hoping
my skills will give me back my two weeks -- [Unintelligible.]”
Kincherlow also indicated that he had no assets.
The court ruled, “What I am going to do, because it
seems that Mr. Kincherlow will be able to work upon his
release, it is simply a matter of his securing employment,
and what I will do, though, is I will impose the statutory
minimum. Rather than the [$]900 [restitution fine], it will
be $300.”
Kincherlow timely appealed.
DISCUSSION
We reject Kincherlow’s contention that the court
violated his Eighth and Fourteenth Amendment rights when
it concluded that he had the ability to pay the imposed fine
and fees.
4
In People v. Dueñas (2019) 30 Cal. App. 5th 1157
(Dueñas), upon which Kincherlow relies, the defendant
presented undisputed evidence of her inability to pay, and
the trial court waived her attorney fees. However, the court
found it was statutorily required to impose a court facilities
assessment and a court operations assessment, and that it
was prohibited from considering her inability to pay as a
“‘compelling and extraordinary reason[]’” that would permit
waiver of the minimum restitution fine. (Id. at p. 1163.) It
therefore imposed the assessments and fine despite its
finding that Dueñas was unable to pay them. (Ibid.)
The Court of Appeal, Second Appellate District,
Division Seven, held that the consequences Dueñas faced
amounted to punishment on the basis of poverty, which the
state and federal constitutional rights to due process and
equal protection forbid. (Dueñas, supra, 30 Cal.App.5th at
pp. 1166–1172.) The court’s decision was rooted in the well-
established constitutional principles that “‘allow no invidious
discriminations between persons and different groups of
persons’” and prohibit “inflict[ing] punishment on indigent
convicted criminal defendants solely on the basis of their
poverty.” (Id. at p. 1166.) The Dueñas court concluded that
due process requires trial courts to determine a defendant’s
ability to pay before it may impose the assessments
mandated by section 1465.8 and Government Code section
70373, and requires trial courts to stay execution of any
restitution fine imposed under section 1202.4 until it has
been determined that the defendant has the ability to pay
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the fine. (Id. at pp. 1172–1173.) It reversed the trial court’s
order imposing the court facilities assessment and court
operations assessment, and directed it to stay the execution
of the restitution fine unless and until it was demonstrated
that Dueñas had the present ability to pay it. (Ibid.)
In the wake of Dueñas, these conclusions have spurred
numerous defendants to challenge imposition of fines, fees,
and assessments in the absence of an ability to pay hearing.
Some courts have held that defendants must challenge some
excessive fines under the Eighth Amendment. (People v.
Cowan (2020) 47 Cal. App. 5th 32, 42–43 (Cowan), review
granted June 17, 2020, S261952 [fines, fees, and
assessments must be challenged under the Eighth
Amendment]; People v. Aviles (2019) 39 Cal. App. 5th 1055,
1069–1071 (Aviles) [same]; People v. Kopp (2019) 38
Cal. App. 5th 47, 96–97 (Kopp), review granted Nov. 13, 2019,
S257844 [analyzing imposition of restitution fine under the
Eighth Amendment].) There is also division regarding
whether an ability to pay hearing is required (see, e.g.,
People v. Hicks (2019) 40 Cal. App. 5th 320, 329, review
granted Nov. 26, 2019, S258946 [rejecting Dueñas as
wrongly decided]; Aviles, supra, 39 Cal.App.5th at pp. 1067–
1068 [same]), and the question is now pending before our
Supreme Court (People v. Kopp, review granted Nov. 13,
2019, S257844).
Even if we were to assume that Dueñas was correctly
decided, it is inapplicable here. Kincherlow had an ability to
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pay hearing,3 and, unlike Dueñas, where the defendant
presented undisputed evidence of an inability to pay that
was accepted by the court, here Kincherlow did not present
undisputed evidence of an inability to pay.4 We review
3 Kincherlow does not contend on appeal that the trial
court failed to give him a hearing. Nor did Kincherlow or his
counsel contend at the time of sentencing that the trial
court’s questioning of him was insufficient, or that there was
additional information they wanted to present to the court.
4 The Supreme Court has also granted review to
consider which party bears the burden of proof in an ability
to pay hearing. (People v. Kopp, review granted Nov. 13,
2019, S257844.) Although it has been suggested that
Dueñas can be read to place the burden of proving the
defendant’s inability to pay on the prosecution (Cowan,
supra, 47 Cal.App.5th at p. 49; Kopp, supra, 38 Cal.App.5th
at p. 96), we do not read Dueñas to so hold. Since Dueñas
was decided, the same division—including the authoring
justice in Dueñas itself—has held that the burden is on the
defendant to demonstrate his inability to pay. (People v.
Castellano (2019) 33 Cal. App. 5th 485, 490 (Castellano).)
Indeed, every published case to address the issue is in
agreement on this point. (Cowan, supra, at p. 49; People v.
Keene (2019) 43 Cal. App. 5th 861, 864; People v. Taylor
(2019) 43 Cal. App. 5th 390, 402; People v. Belloso (2019) 42
Cal. App. 5th 647, 662, review granted Mar. 11, 2020,
S259755; People v. Santos (2019) 38 Cal. App. 5th 923, 934;
Kopp, supra, at p. 96; Castellano, supra, at p. 490.) In the
absence of direction from our Supreme Court, we likewise
conclude that the defendant bears the burden of proving his
inability to pay.
7
Kincherlow’s challenges to the validity of the trial court’s
determination that he had the ability to pay the fine and fees
for abuse of discretion. (See People v. Lewis (2009) 46
Cal. 4th 1255, 1321 [applying an abuse of discretion standard
to a restitution fine]; see also People v. Potts (2019) 6 Cal. 5th
1012, 1057 [trial court “was permitted to conclude that the
monetary burden the restitution fine imposed on defendant
was outweighed by other considerations”]; People v.
DeFrance (2008) 167 Cal. App. 4th 486, 504–505 [trial court
did not abuse its discretion in imposing the maximum
restitution fine under section 1202.4, subdivision (b)].)
In this case, although Kincherlow asserted that he
could not pay the fines and fees imposed at the time of his
sentencing hearing, the trial court based its determination
on its conclusion that Kincherlow had not demonstrated that
he would be unable to earn wages in prison or obtain
employment thereafter. Kincherlow did not contend he
would be dependent on government assistance, did not
contend that he had health or other problems that prevented
him from being gainfully employed (and in fact referenced
that he had skills), and did not dispute the court’s finding
that paying the fine and fees was a matter of his securing
employment after release from prison. Kincherlow
presented no evidence contrary to the trial court’s findings.
Thus, the trial court did not abuse its discretion when it
determined that Kincherlow failed to demonstrate an
inability to pay the fine and fees imposed. (See People v.
Valles (2020) 49 Cal. App. 5th 156, 164, review granted Jul.
8
22, 2020, S262757 [defendant who did not demonstrate he
was ineligible to work in prison did not meet burden of
showing inability to pay]; Aviles, supra, 39 Cal.App.5th at
p. 1076 [wages that appellant may earn in prison may be
considered when determining ability to pay fines]; Kopp,
supra, 38 Cal.App.5th at p. 96 [same]; Castellano, supra, 33
Cal.App.5th at p. 490 [same].)
DISPOSITION
We affirm the trial court’s judgment.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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