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Filed 11/13/20 P. v. Sarabia 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNULFO SARABIA,

Defendant and Appellant.

C089149

(Super. Ct. No. 17FE018819)

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

Arnulfo Sarabia appeals the imposition of fines and fees without an ability to pay 

hearing. Recognizing trial counsel did not object to the imposition of these fines and 

fees, despite the fact that sentencing occurred after the publication of Dueñas, defendant 

also contends the failure to object was ineffective assistance of counsel. We are not 

persuaded defendant’s reliance on Dueñas has merit and reject his ineffective assistance 

of counsel claim. We affirm the judgment.
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FACTS AND PROCEDURAL HISTORY

Based on the nature of the claims on appeal, the facts underlying the convictions 

are not relevant to the resolution of this appeal and are therefore not recounted here. A 

jury found defendant guilty of being an inmate in possession of a dangerous weapon 

(Pen. Code, § 4502, subd. (a); undesignated statutory references are to the Penal Code)

and found true six prior serious and violent felony convictions (§§ 667, subd. (e)(2), 

1170.12, subd. (c)(2)). The trial court sentenced defendant to the midterm of three years, 

doubled due to the prior strike conviction, and declared this conviction the principal 

offense and resentenced defendant on the convictions he was serving at the time he 

committed the offense. The trial court imposed a $600 restitution fine (§ 1202.4), 

imposed and stayed an identical parole revocation fine (§ 1202.45), a $40 court 

operations fee (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373). 

After defendant filed his notice of appeal, he made a section 1237.2 motion in the 

trial court requesting it stay the fines, fees, and assessments pending an ability to pay 

determination. The trial court denied the motion for lack of jurisdiction.

DISCUSSION

Defendant contends the imposition of section 1202.4 fines without considering his 

ability to pay violates due process. He also contends this claim is not forfeited despite his 

lack of objection because the failure to object was ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show 

(1) counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 

696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To show prejudice, defendant 

must show a reasonable probability that he would have received a more favorable result 

had counsel’s performance not been deficient. (Strickland, supra, at pp. 693-694; 
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Ledesma, supra, at pp. 217-218.) “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” (Strickland, supra, at p. 694; accord, Ledesma, 

supra, at p. 218.)

We need not decide whether defendant forfeited his ability to pay argument 

because this argument is without merit. Failure to assert a meritless position does not 

demonstrate ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349, 

377.)

Defendant’s appeal hinges on the analysis in Dueñas finding an ability to pay 

hearing is required before imposing fines and fees, and we are not persuaded that this 

analysis is correct. In Dueñas, after numerous citations and convictions related to driving 

without a license resulted in significant fines and fees the defendant could not pay, 

Dueñas requested a hearing to determine her ability to pay those costs. (Dueñas, supra, 

30 Cal.App.5th at pp. 1160-1163.) Following the statutory language, the trial court ruled 

that the assessments were mandatory and that Dueñas had not shown the “ ‘compelling 

and extraordinary reasons’ ” required to waive the restitution fine. (Id. at p. 1163.)

The Court of Appeal reversed, holding that due process prohibits a trial court from 

imposing court assessments under section 1465.8 and Government Code section 70373, 

and requires the trial court to stay execution of any restitution fines until it ascertains 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.)
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The appellate court in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review 

granted November 26, 2019, S258946, rejected Dueñas’s reasoning under both lines of 

due process authority. Although review has been granted in Hicks, we may still consider 

it as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1).)

Hicks first 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. (Hicks, supra, 

40 Cal.App.5th at p. 326, review granted.) Second, Hicks noted 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 that fundamental liberty interest. (Ibid., review 

granted.)

Hicks went on to conclude that Dueñas’s expansion of these due process 

“foundational pillars” was an incorrect interpretation of due process foundations because 

it was inconsistent with the principles announced by our Supreme Court and the United 

States Supreme Court, that imposition of fines and assessments on indigent defendants is 

not prohibited because the State has a fundamental interest in punishing those who 

violate the criminal law, and not conferring immunity for such punishment on indigent 

defendants. (Hicks, supra, 40 Cal.App.5th at pp. 327-328, review granted.) 

We find the reasoning in Hicks well-founded and persuasive and reject the holding 

in Dueñas. We thus conclude the imposition of fines, fees, and assessments on an 

indigent defendant does not violate due process and there is no requirement the trial court 

conduct an ability to pay hearing prior to imposing these fines, fees, and assessments. In 

so doing, we also join several other courts that have reached this conclusion. (People v. 

Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 

272, 279; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 

39 Cal.App.5th 917, 928.) Defendant’s claim pursuant to Dueñas is without merit, thus 

negating his ineffective assistance of counsel claim on this issue.
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DISPOSITION

The judgment is affirmed. 

 

HULL, Acting P. J.

We concur:

 

MURRAY, J.

 

HOCH, J.