Filed 10/4/19; Certified for Publication 10/21/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION ONE


THE PEOPLE,                                               B293920

        Plaintiff and Respondent,                         (Los Angeles County
                                                          Super. Ct. No. MA066713)
        v.

CARISSA KINGSTON,

        Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
      Carolyn D. Phillips, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
                _______________________________
       Carissa N. Kingston appeals from an order revoking her
probation, contending the order constituted an abuse of
discretion. She also contends the trial court erred in failing
affirmatively to determine whether she had an ability to pay
ordered fines and restitution. We reject both contentions, and
affirm.
                          BACKGROUND
       On November 19, 2015, Kingston pleaded no contest to one
count of receiving a stolen car. (Pen. Code, § 496d, subd. (a).) 1
       The trial court suspended imposition of sentence and
placed Kingston on formal probation for three years, conditioned
on her reporting to probation within four days and completing 45
days of community labor, 30 of them within 18 months, i.e., by
June 2017.
       The court ordered Kingston to pay a $300 restitution fine
(§ 1202.4, subd. (b)), a $300 probation revocation fine (§ 1202.44,
effective upon revocation of parole), a $30 criminal conviction
assessment (Gov. Code, § 70373), a $40 court operations
assessment (§ 1465.8, subd. (a)(1)), a $10 crime prevention fine
(§ 1202.5), court costs of $29, and a $2 criminal fine surcharge,
for a total (not including the probation revocation fine) of $411.
       Kingston failed to report as ordered. The court
preliminarily found she had violated the terms of her probation,
and issued a bench warrant for her arrest. On January 4, 2016,
Kingston appeared in court and admitted she had violated
probation by failing to report. The court revoked and then
reinstated her probation and ordered her to report to probation in
person in the courthouse by 4:00 p.m. that day.

      1All undesignated statutory y references will be to the
Penal Code.



                                 2
       Eighteen months later, on July 3, 2018, Kingston’s
probation officer reported she had been assessed, in addition to
the $411 originally ordered, a “collection installment fee” of $50, a
“restitution fine service charge” of $30, an additional $44
appended to the crime prevention fine (see People v. Castellanos
(2009) 175 Cal.App.4th 1524 [seven penalty assessments attach
to the crime prevention fine]), and an assessment for the cost of
probation services in the amount of $4,197, for a grand total of
$4,691.
       Kingston’s probation officer also reported she had been on a
payment plan of $25 per month, and had made 14 payments
totaling $454, rendering her partially noncompliant with the pay
plan. She had had no additional arrests but had also neither
registered for nor performed any community service to date, in
violation of the condition that she have at least 30 of her 45 days
completed a year earlier, by July 2017. The probation officer
recommended that Kingston be given a one-year extension during
which to complete the community service, with all other terms
and conditions of probation remaining intact.
       On July 26, 2018, Kingston again appeared in court. She
admitted violating probation and acceded to the court’s intention
to terminate probation and sentence her to the low term of 16
months in county jail. However, she requested that she be
released on her own recognizance for one month, until August 30,
2018. The court granted the request but informed Kingston that
should she not appear on August 30 a bench warrant would be
issued for her arrest, and when she was next before the court she
would be sentenced to the high term of three years. Kingston
accepted these terms.




                                 3
       Kingston failed to appear, and the court issued a bench
warrant.
       On September 14, 2018, the court found Kingston in
violation of probation. She requested through her attorney that
should probation be reinstated—with the one-year extension
recommended by the probation department—she promised to
complete the 45 days of community service, representing that her
boyfriend could be in court that day to pay the $150 registration
fee. Kingston’s attorney further represented that she had
completed a six-month outpatient drug rehabilitation program,
had no new criminal offenses, was attending Narcotics
Anonymous meetings, and was in the midst of dependency
proceedings to regain custody of her child. No evidence was
offered to support these representations. In the alternative,
Kingston requested that her sentence be served at home with
electronic monitoring, or as a last resort that she be sentenced to
only 16 months in jail.
       The court found Kingston had violated probation twice. It
stated it would have granted an extension had she requested one
“within a reasonable period of time after the due date,” but not
after almost three years of disregard for her obligation to
complete at least some of the community labor. The court further
found Kingston forfeited the right to a 16-month sentence when
she failed to appear for her sentencing.
       The court terminated probation and sentenced Kingston to
the high term of three years in county jail, with total custody
credit of four days.
       Kingston appealed on November 9, 2018. Attached to her
notice of appeal is a request for a certificate of probable cause, in
support of which she declares she “wasn’t able to pay the




                                  4
[community service registration] fee[ of $150] before,” but now
could do so.
                             DISCUSSION
A.      The Court Did Not Abuse Its Discretion in
        Terminating Probation
        Kingston contends the court abused its discretion in
refusing to reinstitute probation. We disagree.
        “Probation is an act of judicial grace or clemency . . . .
‘While probation may be considered a mild form of ambulatory
punishment imposing meaningful restraints, its true nature is an
act of judicial grace. The [L]egislature has granted to the
judiciary discretionary power to grant probation as a means of
testing a convicted defendant’s integrity and future good
behavior. . . . [P]robation is granted by the court when the
sentencing judge deems the protection of society does not demand
immediate incarceration. It is not granted because of any merit or
worthiness of the wrongdoer.’ ” (In re Marcellus L. (1991) 229
Cal.App.3d 134, 142.)
        “ ‘A denial or a grant of probation generally rests within the
broad discretion of the trial court and will not be disturbed on
appeal except on a showing that the court exercised its discretion
in an arbitrary or capricious manner.’ [Citation.] A court abuses
its discretion ‘whenever the court exceeds the bounds of reason,
all of the circumstances being considered.’ [Citation.] We will
not interfere with the trial court’s exercise of discretion ‘when it
has considered all facts bearing on the offense and the defendant
to be sentenced.’ ” (People v. Downey (2000) 82 Cal.App.4th 899,
909-910.) “ ‘[O]nly in a very extreme case should an appellate
court interfere with the discretion of the trial court in the matter




                                  5
of denying or revoking probation. . . .’ ” (People v. Rodriguez
(1990) 51 Cal.3d 437, 443.)
       Here, Kingston violated the conditions of her probation by
failing to report in the first instance. The court terminated
probation, admonished her, and immediately reinstated it, giving
her 18 months in which to complete 30 out of the 45 days of
community service upon which probation was conditioned.
During the next 30 months Kingston made no effort even to
register for the community service, much less complete it.
       Kingston thereafter failed to appear for sentencing after
persuading the court to release her on her own recognizance.
And she made no effort to notify anyone ahead of time of her
various failures and absences, or to explain them afterward.
Although Kingston’s attorney represented that she had
completed a drug rehabilitation program and was attending
Narcotics Anonymous, no evidence supported these claims.
       When the record reveals that a defendant’s violation of the
terms of probation was the result of irresponsible or willful
behavior, termination of probation and imposition of a prison
sentence is no abuse of discretion. (Cf. People v. Zaring (1992) 8
Cal.App.4th 362, 379.)
       Kingston argues her failure to register for or complete any
community service was caused by her inability to pay the $150
registration fee. No evidence supports the argument, which is
belied by her having made at least 14 payments of $25 during the
course of her probation. Kingston’s declaration in her notice of
appeal, filed three weeks after the sentencing hearing, that she
could not pay the fees “before” but could now, came too late, and
furthermore refuted rather than supported the argument because
it demonstrated her ability to obtain the registration fee in a




                                6
matter of weeks once motivated to do so. Kingston fails to
explain why she could not have shown similar industry during
the 30 months from January 2016 to July 2018.
B.     Court-Imposed Assessments and Fines Did Not
       Violate Due Process
       The trial court imposed several fines and fees without a
hearing to determine Kingston’s ability to pay them. She argues
imposition of the fines and fees was unconstitutional absent such
a hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th
1157, 1168 (Dueñas). We disagree.
       The defendant in Dueñas had cerebral palsy, was homeless
and unemployed, and had two children. She began accruing
various fines as a teenager for driving without a license, which
she never could pay. Upon her fourth misdemeanor conviction
Ms. Dueñas was placed on probation, and at her request the court
held a hearing on her ability to pay a $150 restitution fine (the
minimum amount required under § 1202.4, subd. (b)(1)), court
operations and criminal conviction assessments (§ 1465.8; Gov.
Code, § 70373), and attorney fees. (Dueñas, supra, 30
Cal.App.5th at pp. 1161-1162.) Because it was undisputed she
lacked the ability to pay, the court waived the attorney fees but
determined the assessments were statutorily required, and felt it
was prohibited from considering her inability to pay the
restitution fine. (Id. at p. 1163.)
       Our colleagues in Division Seven of this District reversed,
holding that due process precludes a court from imposing court
facilities and operations assessments, and requires the trial court
to stay execution of any restitution fines, absent a finding that
the defendant “has the present ability to pay” them. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) Very recently our colleagues




                                7
in Division Two disagreed with Dueñas, holding that due process
precludes a court from imposing fines and assessments only if to
do so would deny the defendant access to the courts or result in
the defendant’s incarceration. (People v. Hicks (Sept. 24, 2019,
B291307) ___Cal.App.5th___ [2019 Cal.App. Lexis 914, at pp. 15-
16] (Hicks).) We find Hicks to be the better reasoned decision.
(See People v. Caceres (2019) ___ Cal.App.5th ___ [declining to
apply Dueñas’s “broad holding” beyond its “unique facts”].)
       “To reach its holding, Dueñas wove together two distinct
strands of due process precedent. [¶] The first strand secures a
due process-based right of access to the courts . . . . requir[ing]
courts to waive court costs and fees that would otherwise
preclude criminal and civil litigants from prosecuting or
defending lawsuits or from having an appellate court review the
propriety of any judgment. . . . [¶] The second strand erects a
due process-based bar to incarceration based on the failure to pay
criminal penalties when that failure is due to a criminal
defendant’s indigence rather than contumaciousness.” (Hicks,
supra, ___Cal.App.5th___ [pp. 6-7].)
       But “[t]he first strand does not dictate Dueñas’s bar on
imposing fees because the imposition of assessments, fines and
fees does not deny a criminal defendant access to the courts.
[Citations.] The cases requiring the removal of financial bars to
access are keyed to ensuring that the litigant has a full and fair
opportunity to present the merits of his or her claims at trial and
on appeal. [Citations.] In this regard, access is part and parcel of
the ‘opportunity to be heard’ that the constitutional right of due
process is meant to secure.” (Hicks, supra, ___Cal.App.5th___
[pp. 8-9].) Dueñas’s second strand also does not dictate its “bar
on imposing fees because their imposition, without more, does not




                                 8
result in incarceration for nonpayment due to indigence.” (Id. at
p. 9.) “The cases prohibiting incarceration for indigence alone
rest on the notion that ‘[f]reedom from imprisonment . . . lies at
the heart of the liberty that [the Due Process] Clause protects.’
[Citation.] The act of imposing an assessment, fine or fee upon a
criminal defendant at the time of sentencing does not mandate
instant incarceration and thus does not infringe that very
fundamental liberty interest.” (Ibid.)
       On the contrary, “[o]ur Supreme Court in [In re Antazo
(1970) 3 Cal.3d 100] expressly declined to ‘hold that the
imposition upon an indigent offender of a fine [or] penalty
assessment, either as a sentence or as a condition of probation,
constitutes of necessity in all instances a violation of the equal
protection clause.’ [Citation.] Antazo refused to prohibit the
imposition of fines and assessments upon indigent defendants for
good reason, which the United States Supreme Court explained
best: ‘The State . . . has a fundamental interest in appropriately
punishing persons—rich and poor—who violate its criminal laws,’
such that ‘[a] defendant’s poverty in no way immunizes him from
punishment.’ [Citation.] To confer such an immunity, that Court
has said, ‘would amount to inverse discrimination [because] it
would enable an indigent [defendant] to avoid both the fine and
imprisonment for nonpayment whereas other defendants must
always suffer one or the other . . .’ [Citation.] By adopting an
across-the-board prohibition on the very imposition of
assessments and fines on indigent defendants, Dueñas prohibits
a practice that Antazo sanctioned (albeit under a different
constitutional provision). What is more, Dueñas mandates the
very type of ‘inverse discrimination’ condemned by the
Court . . . .” (Hicks, supra, ___Cal.App.5th___ [pp. 10-11].)




                                9
       Further, “Dueñas is inconsistent with the purposes and
operation of probation. The chief purpose of probation is to
‘ “rehabilitat[e]” ’ and ‘reintegrat[e] . . . [a] [defendant] into the
community.’ [Citations.] One way to achieve this purpose is to
require the defendant-probationer to make an effort to repay his
debt to society. This is why our Legislature has specifically
empowered trial courts to ‘require[,] as a condition of probation[,]
that [a] probationer go to work and earn money’ in order ‘to pay
any fine imposed or reparation condition.’ [Citation.] And it is
why the constitutional prohibition against incarcerating a
defendant for the inability to pay criminal penalties due solely to
his indigence does not prohibit ‘revoking probation and using
imprisonment as an appropriate penalty’ when a probationer has
‘fail[ed] to make sufficient bona fide efforts to seek employment
or borrow money in order to pay the fine or restitution.’
[Citation.] Dueñas impedes the purpose of probation because it
prohibits the imposition of any assessment, fines or fees at the
outset of the probationary period and thus relieves the indigent
probationer of any duty to make any effort to repay his debts and
thereby rehabilitate himself. Dueñas is also inconsistent with
the operation of probation, which typically lasts a number of
years (§ 1203.1, subd. (a)) and thus gives probationers a
significant period of time to repay their financial obligations—
either due to their bona fide efforts or to other changes in their
financial circumstances. [Citations.] By precluding the
imposition of assessments, fines and fees at the outset (and thus
absolving them of any duty to pay them), Dueñas deprives
indigent probationers of any time to repay those obligations.”
(Hicks, supra, ___Cal.App.5th___ [pp. 11-13].)




                                  10
       In our case, imposition of the assessments and fees in no
way interfered with Kingston’s right to present a defense at trial
or to challenge the trial court’s rulings on appeal; they were
imposed after Kingston pleaded no contest. And their imposition
did not result in Kingston’s incarceration. The court revoked
Kingston’s probation and imposed sentence because even after 18
months into her three-year probation, and fully one year beyond
an interim deadline, she had failed to register for or perform any
community service.
       Kingston never contended below that she was unable to pay
the $150 community service registration fee, and nothing in the
record indicates she suffered from a physical, mental or
emotional impediment that precluded her from “ ‘mak[ing]
sufficient bona fide efforts to seek employment or borrow money
in order to pay’ ” it. (Hicks, supra, ___Cal.App.5th___ [p. 12].)
On the contrary, Kingston demonstrated her ability to pay the fee
by representing below that her boyfriend could be in court that
day to pay it, and by obtaining the $150 in the three weeks
between the sentencing hearing and her notice of appeal.
       In sum, the trial court did not violate Kingston’s due
process rights by imposing the assessments and restitution fine
without first ascertaining her ability to pay them.




                               11
                        DISPOSITION
      The judgment is affirmed.




                                                CHANEY, J.

We concur:




             ROTHSCHILD, P. J.




             WEINGART, J. *




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                12
Filed 10/21/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                                 B293920

       Plaintiff and Respondent,            (Los Angeles County
                                            Super. Ct. No. MA066713)
       v.
                                            ORDER CERTIFYING
CARISSA KINGSTON,                           OPINION FOR
                                            PUBLICATION
       Defendant and Appellant.


      THE COURT:
      The opinion filed in the above-entitled matter on October 4,
2019, was not certified for publication in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(c), this opinion
is now ordered published in the Official Reports.




____________________________________________________________
ROTHSCHILD, P. J.           CHANEY, J.       WEINGART, J. *


       Judge of the Los Angeles Superior Court, assigned by the
       *

Chief Justice pursuant to article VI, section 6 of the California
Constitution.
