Filed 12/9/20 P. v. Nix CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH LAMAR NIX,

Defendant and Appellant.

F078910

(Kern Super. Ct. No. BF173734B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Dorothy A. Streutker, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
2.

INTRODUCTION

Appellant/defendant Kenneth Lamar Nix was convicted of second degree burglary 

and two misdemeanors. On appeal, he contends his burglary conviction must be reversed 

for insufficient evidence, and the court improperly ordered him to pay a restitution fine, 

fees, and other assessments without determining his ability to pay in violation of his 

constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas). We order the prior prison term enhancements stricken and remand for 

resentencing, and otherwise affirm.

FACTS

Julian Villalvazo lived in Bakersfield. On the night of September 10, 2018, he 

locked his garage and went to bed. There were usually homeless people in the area, but 

he had not seen anyone around that night.

Around 5:00 a.m. on September 11, 2018, Villalvazo woke up when he heard a 

“loud crash” in the alley adjacent to his garage. He quickly got out of bed and went 

outside within one to two minutes. The garage door was open, and the lights were on 

inside. Villalvazo later determined his garage door had been pried open.

Villalvazo realized several things had been taken from his garage, including two 

bicycles, a “stack” of skateboards, a sleeping bag, a tent, a propane camp stove, a 

backpack, and two bicycle pumps. He found other items on the ground outside the 

garage. His extension ladder had been removed from the garage and was propped against 

a power pole in the alley.

Villalvazo testified he “heard the sound of sprockets from a bicycle as bikes were 

taking off northbound in the alley right there,” which would have been going away from 

his garage. He went into the alley and saw a man, later identified as defendant, riding a 

bicycle toward him. Villalvazo believed he saw defendant within two minutes of hearing 

the loud crash. There was no one else near his garage or in the alley.
3.

Villalvazo testified they “crossed paths,” and defendant said, “[O]h, man. You 

scared the shit out of me,” as if defendant “wasn’t expecting me to be there.” Villalvazo 

told defendant it looked like some people had broken into his garage and taken some

things.

Villalvazo went into his house and grabbed his truck keys. He got into his vehicle 

and drove northbound in the alley to see if he could find any of his property. After 

driving about 200 to 300 yards from his garage, he followed the alley as it curved and 

saw defendant with a man and a woman; no one else was present. Villalvazo’s two 

stolen bicycles were leaning against the alley fence. Defendant was standing by a 

makeshift “caravan” that consisted of a wheelchair tied behind a grocery cart, and it was 

stacked with items, including some of his stolen property. Villalvazo saw a ladder and 

one of his skateboards on top of the cart.

Villalvazo turned on his truck’s high beam lights and saw the second man trying to 

remove the tire from one of his stolen bicycles. When the man realized he was there, he 

jumped up, put a stolen backpack on his back, and took off down the alley on one of the 

stolen skateboards.

Villalvazo got out of his truck and yelled obscenities at the man who fled on the 

skateboard. Villalvazo confronted defendant and said his property was on his cart. 

Defendant agreed his property was there, but denied the skateboard belonged to him and 

refused to give it back. Defendant also refused to return the ladder until he realized how 

aggravated Villalvazo was, and then took it off the cart and placed it on the ground with 

some of his other stolen property.

Villalvazo stayed in the alley and called 911. As he talked to the dispatcher, 

defendant had a brief conversation with the woman and then jumped on his bicycle and 

rode away, pulling the cart behind him. The woman followed on foot.
4.

The initial investigation

At 5:15 a.m., Bakersfield Police Officer Nuno responded to the dispatch and met 

with Villalvazo. Villalvazo’s description of the suspects was broadcast to other officers.

Officer Phillips drove around the area and turned into a parking lot in front of a 

Smart & Final store. She saw the woman standing near a building while defendant was 

behind some shrubs. The woman was standing by the overturned cart. Defendant walked 

toward her. Defendant’s bicycle and a skateboard were by the shrubs. A spring loaded 

window punch tool was attached to defendant’s bicycle. The two suspects were detained. 

The second male suspect was not apprehended.

Officer Nuno drove Villalvazo to the parking lot where the suspects were 

detained. Villalvazo identified defendant and the woman, codefendant Jennifer Lyn 

Cavish, as two of the people who were in the alley. He identified some of his stolen 

property that had been recovered: the camp stove, the tent, the two bicycle pumps, and 

the skateboard that defendant falsely claimed belonged to him. Villalvazo also recovered 

both of his stolen bicycles, which were worth $1,000 and $350, and a sleeping bag.

PROCEDURAL HISTORY

Defendant and codefendant Cavish were jointly charged with count 1, second

degree burglary (Pen. Code, § 460, subd. (b));1 and count 3, misdemeanor receiving 

stolen property that belonged to Villalvazo (§ 496, subd. (a)).

Defendant was separately charged with count 2, misdemeanor possession of 

burglary tools (§ 466); and count 4, misdemeanor possession of methamphetamine

(Health & Saf. Code, § 11377, subd. (a)). As to count 1, it was alleged he had seven 

prior prison term enhancements (§ 667.5, subd. (b)).

Prior to trial, defendant pleaded no contest to count 4, misdemeanor possession of 

methamphetamine. Thereafter, a joint jury trial was held for defendant and Cavish. On 

1 All further statutory references are to the Penal Code unless otherwise indicated.
5.

January 10, 2019, the jury found defendant guilty of count 1, second degree burglary, and 

count 3, misdemeanor receiving stolen property. He was found not guilty of count 2, 

possession of burglary tools.

Codefendant Cavish was found not guilty of both count 1, burglary, and count 3, 

misdemeanor receiving stolen property.

The court found all of defendant’s prior prison term allegations true.

On February 28, 2019, the court sentenced defendant to an aggregate term of 

seven years, based on the upper term of three years for count 1, second degree burglary, 

plus four one-year terms for the prior prison term enhancements. The court imposed a 

split sentence with four years served in county jail, and three years on mandatory 

supervised release. The court stayed the remaining prior prison term enhancements and 

imposed concurrent jail terms for misdemeanor counts 3 and 4.

DISCUSSION

I. Defendant’s Burglary Conviction is Supported by Substantial Evidence

The jury was instructed on defendant’s culpability for second degree burglary as 

either the direct perpetrator or an aider and abettor. Defendant contends his conviction 

for second degree burglary of Villalvazo’s garage is not supported by substantial 

evidence because he was never seen inside or taking the property, and the police never 

checked for fingerprints to place him there. Defendant asserts the circumstantial 

evidence was “slender,” the burglary could have been committed by the unknown man 

who left with some of the stolen property, and the jury found codefendant Cavish not 

guilty of the same charge. Defendant argues there were “too many reasonable scenarios” 

that supported the inference someone else broke into the garage and stole the property, 

and the jury should have accepted the reasonable inferences in support of defendant’s 

innocence.
6.

A. Substantial evidence

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 

review the whole record in the light most favorable to the judgment to determine whether 

it discloses substantial evidence - that is, evidence that is reasonable, credible, and of 

solid value - such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under 

principles of federal due process, review for sufficiency of evidence entails not the 

determination whether the reviewing court itself believes the evidence at trial establishes 

guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of 

review is the same in cases in which the prosecution relies mainly on circumstantial 

evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds 

that circumstantial evidence is susceptible of two interpretations, one of which suggests 

guilt and the other innocence [citations], it is the jury, not the appellate court[,] which 

must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the 

circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing 

court that the circumstances might also reasonably be reconciled with a contrary finding 

does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. 

Rodriguez (1999) 20 Cal.4th 1, 11, italics added.)

B. Burglary

A second degree burglary is committed when a person enters a building that is not 

an inhabited dwelling house, with the intent to commit theft or any felony. (People v. 

Tafoya (2007) 42 Cal.4th 147, 170-171.)

“We have recognized that ‘[p]ossession of recently stolen property is so 

incriminating that to warrant conviction there need only be, in addition to possession, 

slight corroboration in the form of statements or conduct of the defendant tending to 
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show his guilt.’ [Citation.]” (People v. Grimes (2016) 1 Cal.5th 698, 731.) “As long as 

the corroborating evidence together with the conscious possession could naturally and 

reasonably support an inference of guilt, and that inference is sufficient to sustain a 

verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s 

burden of proof or implicates a defendant’s right to due process....” (People v. 

Williams (2000) 79 Cal.App.4th 1157, 1173.)

“ ‘To establish liability under an aiding and abetting theory, the prosecution is 

required to prove the defendant knew of the perpetrator’s unlawful purpose, and intended 

to and did aid, facilitate, promote, encourage, or instigate the commission of the crime. 

[Citation.] Presence at the scene of a crime, alone, is insufficient to establish aiding and 

abetting liability. [Citation.] However, the aider and abettor need not have advance 

knowledge of the crime or the perpetrator’s intent. ‘Aiding and abetting may be 

committed “on the spur of the moment,” that is, as instantaneously as the criminal act 

itself. [Citation.]’ [Citation.]” (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1148.)

“Whether defendant aided and abetted the crime is a question of fact, and on 

appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of 

the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329; People v. Frandsen, 

supra, 33 Cal.App.5th 1126, 1147-1148.) Relevant factors in determining whether a 

person aided and abetted a crime include presence at the crime scene, companionship, 

and conduct before and after the offense. (People v. Battle (2011) 198 Cal.App.4th 50, 

84.)

C. Analysis

Defendant’s burglary conviction is supported by substantial evidence either as the 

direct perpetrator or an aider and abettor. The evidence showed that someone pried open 

Villalvazo’s garage door and took numerous items. Villalvazo heard the loud crashing 

noise, quickly went outside, and thought he heard the sounds of bicycles traveling away 

from his garage. Within two minutes of hearing the crashing sounds, he went into the 
8.

alley and saw defendant riding his bicycle toward his garage. No one else was in the 

alley or near the garage. Villalvazo’s stolen ladder was leaning against a power pole in 

the alley, and other property was on the ground near the garage. As Villalvazo later 

found out, the rest of his stolen property was further down the alley, about 200 to 300 

yards away. Some items had already placed in the makeshift cart that defendant appeared 

to control. The unknown male accomplice was next to the two stolen bicycles, and he 

was trying to remove the tire from one of them.

Based on these facts, the jury could have reasonably found that defendant and his 

male accomplice broke into the garage and ferried the stolen property away to their cart 

around the curve of the alley. Villalvazo thought he initially heard the sound of bicycles 

moving away from the garage, which would have been consistent with the accomplice 

moving the two stolen bicycles away from the area, while defendant drove his own 

bicycle and carried other stolen property. When Villalvazo startled defendant in the 

alley, it is reasonable to infer that defendant was riding his own bicycle back to the 

garage to pick up the rest of the stolen property, such as the ladder that was leaning 

against the power pole. Villalvazo drove down the alley, found defendant and the 

accomplice, confronted them, and the accomplice immediate fled on one of the stolen 

skateboards while taking a stolen backpack. Defendant disputed Villalvazo’s insistence 

that the property in the cart belonged to him. When the police later found defendant in 

the parking lot, they also found the rest of Villalvazo’s stolen property in the cart.

Defendant asserts his burglary conviction is not supported by substantial evidence 

because his codefendant was found not guilty, no one saw him entering or inside the 

garage, and the jury should have accepted the reasonable inferences in support of his 

innocence. In contrast to defendant and the male accomplice, codefendant Cavish was 

never seen near the garage, or in possession of or ferrying the recently stolen property 

away from the garage, which would have supported a reasonable inference that she was 

also aiding and abetting the burglary. While the evidence as to defendant may have been 
9.

subject to multiple inferences, if the circumstances reasonably justify the trier of fact’s 

findings, the opinion of the reviewing court that the circumstances might also reasonably 

be reconciled with a contrary finding does not warrant a reversal of the judgment. 

(People v. Rodriguez, supra, 20 Cal.4th at p. 11.) Defendant’s burglary conviction is 

supported by substantial evidence.

II. The Restitution Fines, Fees, and Assessments

The court ordered defendant to pay a restitution fine of $300 (§ 1202.4, subd. (b)) 

and suspended the parole revocation fine of $300 (§ 1202.45). The court also imposed a 

crime prevention fee of $10 as to count 1, second degree burglary (§ 1202.5). As to each 

conviction, the court imposed a court operations assessment of $40 for a total of $120 

(§ 1465.8), and a court facilities assessment of $30 for a total of $90 (Gov. Code, 

§ 70373). As to count 4, the court imposed a laboratory analysis fee of $50 under Health 

and Safety Code section 11372.5 plus a penalty assessment of $155; and a drug program 

fee of $100 under Health and Safety Code section 11372.7 plus a penalty assessment of 

$310.

Defendant argues the court improperly imposed the restitution fine, fees, and 

assessments without determining his ability to pay in violation of his due process rights 

as stated in Dueñas, and this court must strike the amounts imposed. Dueñas 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 any fines or fees. 

(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)2

We disagree with the holding in Dueñas and find the matter need not be remanded 

on this issue. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 

2 The California Supreme Court is currently considering whether trial courts must 

consider a defendant’s ability to pay before imposing or executing fines, fees, and 

assessments; and if so, which party bears the applicable burden of proof. (See People v. 

Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
10.

(Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is 

more appropriate to determine whether restitution fines, fees, and assessments in a 

particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–

1072.) Under that standard, the fines and fees imposed in this case are not grossly 

disproportionate to defendant’s level of culpability and the harm he inflicted, and thus not 

excessive under the Eighth Amendment. (Aviles, at p. 1072.)

Next, to the extent Dueñas applies to this case, the court imposed the minimum 

restitution fine of $300, and defendant lacked the statutory authority to object under the 

governing law at the time of his sentencing hearing. (Cf. People v. Frandsen, supra, 33 

Cal.App.5th 1126, 1153–1154.) However, defendant had the statutory authority to raise 

ability to pay objections to the court’s imposition of the crime prevention fine pursuant to 

section 1202.5, subdivision (a), and the drug program fee pursuant to Health and Safety 

Code section 11372.7, subdivision (b). (People v. McCullough (2013) 56 Cal.4th 589, 

598-599.) Defendant could have relied on these statutes to similarly argue that he lacked 

the ability to pay the other fines and assessments. (See, e.g., People v. Frandsen, supra, 

33 Cal.App.5th at pp. 1153-1154.)

In any event, even if we agreed with Dueñas, we would still reject defendant’s 

constitutional claims and find any error arising from the court’s failure to make an ability 

to pay finding was harmless beyond a reasonable doubt since defendant has the ability to 

pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 

24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031; Aviles, supra, 39 

Cal.App.5th at pp. 1075-1077.)

“ ‘ “Ability to pay does not necessarily require existing employment or cash on 

hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a 

restitution fine, the court is not limited to considering a defendant’s present ability but 

may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the 
11.

defendant’s ability to obtain prison wages and to earn money after his release from 

custody. [Citation.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)

We can infer from the instant record that defendant has the ability to pay the 

aggregate amount of fines and fees from probable future wages, including prison wages. 

(Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 

1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the 

record to show that defendant would be unable to satisfy the fine and fees imposed by the 

court while serving his prison term, even if he fails to obtain a prison job. While it may 

take defendant some time to pay the amounts imposed in this case, that circumstance 

does not support his inability to make payments on these amounts from either prison 

wages or monetary gifts from family and friends during his prison sentence. (See, e.g., 

People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th 

1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

Finally, defendant argues the court did not properly impose the $30 assessments 

under Government Code section 70373. The minute order correctly states that as to 

counts 1, 3, and 4, the court imposed the $30 fees pursuant to Government Code 

section 70373. According to the reporter’s transcript, however, the court stated it was 

imposing the $30 fees under Government Code section “7373.” Defense counsel did not 

object and the court obviously misstated the code section. The abstract of judgment is 

not contained in the appellate record. If the abstract contains a similar error, the court 

may correct it on remand.

III. The Prior Prison Term Enhancements

The court found true the seven alleged prior prison term enhancements (§ 667.5, 

subd. (b)). It imposed four consecutive one-year terms and ordered the remaining three 

enhancements stayed.

Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate

Bill 136) amended section 667.5, subdivision (b), to limit the imposition of prior prison 
12.

term enhancements to only prior terms that were served for sexually violent offenses as 

defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, 

subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.)

Defendant contends, and the People concede, that none of defendant’s prior prison 

terms were served for a sexually violent offense, and the court’s true findings and the 

terms imposed must be stricken.

Both parties also agree the matter must be remanded for resentencing. As noted 

by the People, the reduction of defendant’s aggregate term by four years might affect the 

split sentence imposed by the court, and the matter must be remanded for resentencing. 

DISPOSITION

The court’s true findings on the prior prison term enhancements and the four oneyear terms imposed therein are stricken, and the matter remanded for resentencing. On 

remand, the court shall determine whether it must correct the abstract of judgment as to 

the fees imposed pursuant to Government Code section 70373. In all other respects, the 

judgment is affirmed.