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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

MICHELE LYNN GONZALEZ,

Defendant and Appellant.

C092899

(Super. Ct. No. 19CR001653)

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.