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Filed 6/28/21 P. v. Castro 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Lassen)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

AMBER MARGUERITE CASTRO,

Defendant and Appellant.

C090012

(Super. Ct. No. CH036151)

Defendant Amber Marguerite Castro was convicted of two counts of sending 

drugs into state prison. The trial court also imposed two prior prison term enhancements. 

On appeal defendant contends: (1) her prior prison term enhancements must be vacated 

based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) 

(Senate Bill 136); and (2) the trial court erred in imposing certain assessments and 

restitution fines without holding a hearing to determine her ability to pay them. We will 

modify the judgment to strike the enhancements for defendant’s prison priors. We will 

otherwise affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Defendant sent by mail a synthetic heroin commonly sold in prison, to an inmate 

in prison, on several occasions. Following a trial, a jury found her guilty of two counts of 

sending drugs into state prison in violation of Penal Code section 4573.1 In a bifurcated 

hearing, defendant admitted that she had sustained two prior prison term convictions as 

alleged under section 667.5, subdivision (b). One prior term was for a burglary 

conviction (§ 459) while the other was for auto theft (Veh. Code, § 10851). The trial 

court sentenced defendant to the upper term of four years on count 1, one year (one-third 

the middle term) on count 2, and one year for each prior prison term conviction, for an 

aggregate term of seven years in state prison. The court assessed the following fines and

fees: a $600 presentence investigation and report fee pursuant to section 1203.1, 

subdivision (b); a $600 restitution fine under section 1202.4, subdivision (b)(1); a $60 

criminal conviction assessment under Government Code section 70373; and an $80 court 

operations assessment under section 1465.8.

The court denied defendant’s subsequent motion to be resentenced on her fines. 

The court stated: “With regard to the restitution fund fine, the Court -- the appellate 

courts have been very clear that the fine pursuant to 1202.4(b) is a reformation 

rehabilitation aspect or a part of the reformation of the defendant and has clearly 

indicated that those fines serve a reformative purpose. [¶] With regard to the court 

operation and the criminal conviction fee, the Court is not going to re sentence on 

those . . . .”

1 Undesignated statutory references are to the Penal Code.
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I

Senate Bill 136

Defendant contends her prior prison term enhancements must be vacated based on 

the retroactive application of Senate Bill 136. The People agree.

On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.), 

which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). 

Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to 

those who have served a prior prison sentence for a sexually violent offense, as defined in 

section 667.5. The amended provision states in pertinent part: “Except where 

subdivision (a) applies, where the new offense is any felony for which a prison sentence 

or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is 

imposed or is not suspended, in addition and consecutive to any other sentence therefor, 

the court shall impose a one-year term for each prior separate prison term for a sexually 

violent offense as defined in subdivision (b) of Section 6600 of the Welfare and 

Institutions Code, provided that no additional term shall be imposed under this 

subdivision for any prison term served prior to a period of five years in which the 

defendant remained free of both the commission of an offense which results in a felony 

conviction, and prison custody or the imposition of a term of jail custody imposed under 

subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (§ 667.5, 

subd. (b).)

In this case, defendant’s prior prison terms were for a burglary conviction (§ 459) 

and an auto theft conviction (Veh. Code, § 10851), which are not sexually violent 

offenses under Welfare and Institutions Code section 6600, subdivision (b). Defendant is 

therefore entitled to the ameliorative benefit of the statute if Senate Bill 136 is applied 

retroactively. We agree with the parties that the amendment to Senate Bill 136 should be 

applied retroactively in this case. Whether a particular statute is intended to apply 

retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara)
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(2018) 4 Cal.5th 299, 307 [noting “ ‘the role of a court is to determine the intent of the 

Legislature’ ”].) Generally speaking, new criminal legislation is presumed to apply 

prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, 

where the Legislature has reduced punishment for criminal conduct, an inference arises 

under In re Estrada (1965) 63 Cal.2d 740 (Estrada) “ ‘that, in the absence of contrary 

indications, a legislative body ordinarily intends for ameliorative changes to the criminal 

law to extend as broadly as possible, distinguishing only as necessary between sentences 

that are final and sentences that are not.’ ” (Lara, at p. 308.) “A new law mitigates or 

lessens punishment when it either mandates reduction of a sentence or grants a trial court 

the discretion to do so. [Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)

Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision (b) 

prior prison term enhancement, thus rendering ineligible many individuals, including 

defendant, who served prior prison sentences for burglary and auto theft. There is 

nothing in the bill or its associated legislative history that indicates an intent that the court 

not apply this amendment to all individuals whose sentences are not yet final. Under 

these circumstances, we conclude Estrada’s inference of retroactive application applies. 

(See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference 

of retroactivity to legislative changes to § 12022.6, subds. (a) and (b) enhancements].) 

Accordingly, we will modify the judgment to strike defendant’s prior prison term 

enhancements. Because the trial court imposed the maximum sentence available, we 

need not remand for resentencing for the court to consider all available sentencing 

options. (People v. Buycks (2018) 5 Cal.5th 857, 896.)

II

Imposition of Mandatory Court Assessments and Restitution Fine

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant 

argues that the trial court violated her right to due process by imposing a restitution fine

and the mandatory court operations and criminal conviction assessments without holding 
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a hearing to determine her ability to pay them. The People argue defendant forfeited her 

Dueñas claim with respect to the restitution fine by failing to object or even express any 

concern about inability to pay in the trial court during the sentencing hearing. Defendant 

responds that her claims were not forfeited because Dueñas was not yet decided at the 

time of the sentencing hearing and her motion after sentencing was sufficient to preserve 

her claim on appeal. The People further argue her claim with respect to the restitution 

fines does not implicate due process but rather, should be evaluated under the excessive 

fines clause and fails under that clause. The People further argue that even if analyzed 

under due process principles, the restitution fines were constitutionally imposed. Finally, 

the People contend that imposition of the criminal conviction and court operations 

assessments implicates due process because the assessments are non-punitive, but any 

due process violation was harmless error beyond a reasonable doubt based on facts

clearly showing that the defendant had the ability to pay.

In Dueñas, the court of appeal held that “due process of law requires the trial court 

to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay 

before it imposes court facilities and court operations assessments under . . . section 

1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at 

p. 1164.) The Dueñas court also held that “although . . . section 1202.4 bars 

consideration of a defendant’s ability to pay unless the judge is considering increasing the 

fee over the statutory minimum, the execution of any restitution fine imposed under this 

statute must be stayed unless and until the trial court holds an ability to pay hearing and 

concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.) 

Regardless of whether defendant forfeited the issue, we are not persuaded the analysis 

used in Dueñas is correct. Our Supreme Court is now poised to resolve this question, 

having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted 

November 13, 2019, S257844, which disagreed with the court’s conclusion in Dueñas

that due process requires the trial court to conduct an ability to pay hearing as to 
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restitution fines, reasoning that because a restitution fine is intended to punish defendants, 

a defendant should challenge such fines under the excessive fines clause of the Eighth 

Amendment. (Id. at pp. 96-97.)

We join the courts that have concluded Dueñas was wrongly decided. (See, e.g., 

People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 

40 Cal.App.5th 320, 327-329, rev. granted Nov. 26, 2019, S258946; People v. Aviles

(2019) 39 Cal.App.5th 1055, 1067-1069, rev. denied Dec. 11, 2019, S258563 (Aviles); 

People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, rev. denied Jan. 2, 2020, 

S258720.) The Dueñas court held that due process requires the trial court to stay 

execution of any assessments or restitution fines unless it ascertains by hearing the 

defendant’s ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th 

at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process 

precedent. First, it cited authorities addressing access to courts and waiving court costs 

for indigent civil litigants. Second, it relied on due process and equal protection 

authorities that prohibit incarceration based on a defendant’s indigence and inability to 

pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing 

costs on indigent defendants “blamelessly” unable to pay them transformed a “funding 

mechanism for the courts into additional punishment.” (Id. at p. 1168.)

In People v. Hicks, supra, 40 Cal.App.5th 320, the appellate court rejected the 

reasoning of Dueñas under both lines of due process authority. Hicks observed that 

imposition of fees after a determination of guilt does not deny a criminal defendant’s 

access to the courts and does not interfere with a defendant’s right to present a defense or 

challenge a trial court’s rulings on appeal. (Id. at p. 326.) Further, imposition of fees, 

without more, does not result in incarceration for nonpayment of fines and fees due to 

indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)

We find the reasoning in Hicks sounder and more persuasive than that in Dueñas. 

We disagree with the People that imposition of the mandatory assessments should be 
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evaluated differently for due process than imposition of the restitution fines because they 

are non-punitive. Government Code section 70373 provides: “To ensure and maintain 

adequate funding for court facilities, [a $30] assessment shall be imposed on every 

[misdemeanor or felony] conviction for a criminal offense . . . .” Similarly, section 

1465.8 provides: “To assist in funding court operations, [a $40] assessment . . . shall be 

imposed on every conviction for a criminal offense . . . .” Both assessments are 

mandatory, and the court has no authority to stay or otherwise fail to impose them. 

(People v. Woods (2010) 191 Cal.App.4th 269, 271-272.) Accordingly, we conclude the 

imposition of a restitution fine and mandatory assessments on an indigent defendant 

without consideration of ability to pay does not violate due process and there is no 

requirement the trial court conduct an ability to pay hearing prior to imposing such fines 

and assessments.

To the extent imposing potentially unpayable fines or fees on indigent defendants 

raises constitutional concerns, we agree that such challenges are properly analyzed under 

the excessive fines clause, which limits the government’s power to extract payments as 

punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1069.) We 

disagree, however, with defendant’s argument that her restitution fine and assessments

fail under an excessive fines analysis.

“ ‘The Eighth Amendment prohibits the imposition of excessive fines. The word 

“fine,” as used in that provision, has been interpreted to be “ ‘a payment to a sovereign as 

punishment for some offense.’ ” [Citation.]’ [Citation.] The determination of whether a 

fine is excessive for purposes of the Eighth Amendment is based on the factors set forth 

in [People v. Bajakajian (1998) 524 U.S. 321 (Bajakajian)]. [Citation.]” (Aviles, supra, 

39 Cal.App.5th at p. 1070.) “ ‘The touchstone of the constitutional inquiry under the 

Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture 

must bear some relationship to the gravity of the offense that it is designed to punish. 

[Citations.] [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly 
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disproportional to the gravity of a defendant’s offense.’ (Bajakajian, supra, 524 U.S. at 

p. 334.)” (Aviles, at p. 1070.) “The California Supreme Court has summarized the 

factors in Bajakajian to determine if a fine is excessive in violation of the Eighth 

Amendment: ‘(1) the defendant’s culpability; (2) the relationship between the harm and 

the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to 

pay. [Citations.]’ [Citations.] While ability to pay may be part of the proportionality 

analysis, it is not the only factor. [Citation.]” (Aviles, at p. 1070.)

We review the excessiveness of a fine challenged under the Eighth Amendment de 

novo. (Aviles, supra, 39 Cal.App.5th at p. 1072.) Having done so, we find the $600 

restitution fine and court assessments imposed by the court in defendant’s case are not 

grossly disproportional to defendant’s culpability and the gravity of repeatedly sending

narcotics into prison. (See Bajakajian, supra, 524 U.S. 321; Aviles, at p. 1072.) We are 

also unconvinced by defendant’s argument that she is unable to pay these amounts. Her 

arrest does not foreclose that she will be able to pay the restitution fine and court 

assessments. Further, ability to pay alone is not dispositive to an excessive fines analysis. 

(Aviles, at p. 1070, citing Bajakajian, at pp. 337-338.) Accordingly, we will deny her 

request for remand and affirm.
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DISPOSITION

The judgment is modified to strike defendant’s section 667.5, subdivision (b) prior 

prison term enhancements. The trial court is directed to prepare an amended abstract of 

judgment and forward a certified copy to the Department of Corrections and 

Rehabilitation. The judgment is otherwise affirmed.

 /s/

BLEASE, Acting P. J.

I concur:

 /s/

DUARTE, J.
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MAURO, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part II of the Discussion, 

pertaining to the fines and assessments, as to which I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to 

impose certain fines or assessments without determining defendant’s ability to pay. (Id. 

at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s legal 

analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 

2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court 

has had an opportunity to resolve the current split in authority, I would remand the matter 

and direct the trial court to further consider defendant’s ability to pay the imposed fines 

and assessments.

 /s/

MAURO, J.