Can a defendant who pleaded no contest to a charge of assault have an appeal against the sentence imposed on her?

After reviewing the record, appellant's court-appointed counsel filed an opening brief, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to conduct an independent review of the record. (Id. at p. 441.) On November 29, 2018, we advised appellant she had 30 days within which personally to submit any contentions or issues she wished us to consider. To date we have received no response. Appellate counsel subsequently filed a supplemental brief contending that the trial court erred in ordering appellant to pay the restitution fund fine and the court security and court facilities fees without conducting a hearing to determine her ability to pay. Respondent did not file a supplemental brief in reply.

Generally, a defendant who pleads no contest cannot appeal the conviction without obtaining a certificate of probable cause. ( 1237.5.) However, a certificate is not required for an appeal based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4)(B).) Thus, a certificate of probable cause is not required to "'assert[] errors occurring in subsequent hearings to ascertain the degree of a crime and the penalty to be imposed.' [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 678.) The "critical inquiry" in determining whether section 1237.5 applies to a challenge to a sentence is whether the challenge is "in substance a

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challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Here, the record indicates that the imposition of fines and fees was not part of the plea negotiations. Appellant's challenge therefore is not barred by her failure to obtain a certificate of probable cause.

Appellant relies on People v. Dueas (2019) 30 Cal.App.5th 1157 (Dueas) to argue that the imposition of the fees and fines without conducting a hearing on her ability to pay violated her due process and equal protection rights. She contends that the probation report shows that she was unemployed and had no assets. However, we have reviewed the probation report, and it states only that appellant's employment status was unknown.