Filed 12/16/20 P. v. Lugo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300924
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA100283
v.
DAVID MICHAEL LUGO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Yvette Verastegui, Judge. Conviction
affirmed; remanded with instructions.
Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant David Michael Lugo pleaded
no contest to injuring his wife in violation of Penal Code
section 273.5, subdivision (a).1 On appeal, Lugo contends (1) the
condition of his probation that he “not use, or threaten to use,
any force or violence against any person” is “unconstitutionally
overbroad on its face,” and (2) his trial counsel was
unconstitutionally ineffective in failing to object to the domestic
violence fee, restitution fine, and court assessments. The
Attorney General agrees the probation condition should be
modified to clarify Lugo may engage in lawful self-defense or
defense of others. As we are remanding the case for the court
to modify the “force or violence” term of Lugo’s probation, we
need not reach his claim that his counsel should have requested
a hearing to determine his ability to pay the domestic violence
fee, restitution fine, and court assessments. Lugo may raise
any inability to pay in the trial court on remand.
FACTS AND PROCEDURAL BACKGROUND
One afternoon in February 2019 Lugo threw an internet
modem at his wife Luna, who was five months pregnant.2
The modem hit Luna on the left side of her stomach. Luna fell
to the floor in severe pain. As she lay on the ground, “she felt
her stomach start to really tighten, and the pain was worsening.”
Lugo drove Luna to the hospital and “dropped [her] off.” The
hospital released Luna the same day.
1 References to statutes are to the Penal Code.
2 As the case resolved before the preliminary hearing,
we take the facts from the Probation Officer’s Report and from
the police report, parts of which the district attorney read aloud
to the court at the arraignment.
2
The People charged Lugo with assault with a deadly
weapon (count 1), inflicting corporal injury on a spouse (count 2),
and resisting a peace officer, a misdemeanor (count 3).
On July 11, 2019, Lugo entered into a plea agreement
with the People. Lugo pleaded no contest to count 2 in exchange
for five years of formal felony probation and credit for one day
in custody. The court ordered Lugo to perform 60 days of
community service and to complete 52 weeks of domestic
violence prevention counseling. Among other conditions and
requirements of probation, the court told Lugo, “Do not use,
or threaten to use, any force or violence against any person.”
The court also ordered Lugo to pay a $300 restitution fine,
a $500 domestic violence fee, a $40 court operations assessment,
and a $30 criminal conviction assessment. The court stayed
a $300 probation revocation restitution fine. Neither Lugo nor
his counsel objected to any of the terms of his probation, nor did
he or his counsel assert any inability to pay the restitution fine
and court fees. The court asked Lugo, “Do you understand
and accept those terms and conditions of your probation?”
Lugo answered, “Yes, Your Honor.”
On August 14, 2019, Lugo filed a notice of appeal. He
checked box 2.a.(3): “This appeal challenges the validity of the
plea or admission.” Under “Request for Certificate of Probable
Cause,” Lugo wrote, “I would like to request an appeal because
I believe I had ineffective defense cousel [sic], and there was
improper admission of evidence.” The trial court granted Lugo’s
request for a certificate of probable cause.
DISCUSSION
1. The Attorney General agrees the force or violence
probation condition should be modified
Lugo contends the probation condition that he not use force
or violence against any person is overbroad “because it makes
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no allowance for [him] to exercise the constitutional right to self-
defense under any circumstances.” The Attorney General agrees
that probation condition should be modified to state that Lugo
is not to use or threaten to use force or violence against any
person except in lawful self-defense or lawful defense of others.
(See People v. Lopez (1998) 66 Cal.App.4th 615, 629 [probation
condition that is not “ ‘sufficiently narrowly drawn’ ” may
be modified].)
2. Lugo may raise any ability-to-pay issue in the
trial court on remand
Lugo admits that neither he nor his counsel objected
to the domestic violence fee, the restitution fine, or the court
assessments at the time of sentencing, nor did they request
a hearing on Lugo’s ability to pay the fine and fees. Lugo
concedes he therefore has forfeited the issue. Lugo argues,
however, that his counsel was constitutionally ineffective
in failing to object and to ask for an ability-to-pay hearing.
As noted, the court imposed the mandatory minimum
restitution fine of $300 under section 1202.4, subdivision (b)
and $70 in court assessments. The court also ordered Lugo to
pay a domestic violence fee of $500—the mandatory minimum
amount—under section 1203.097, subdivision (a)(5)(A). Unlike
section 1202.4, subdivision (c)—which provides “[a] defendant’s
inability to pay [the minimum restitution fine] shall not be
considered a compelling and extraordinary reason not to impose
a restitution fine”—section 1203.097, subdivision (a)(5)(A)
provides for an ability-to-pay hearing in open court on the
domestic violence fee. If, after the hearing, “the court finds
that the defendant does not have the ability to pay, the court
may reduce or waive this fee.” The court “shall state the reason
[for the reduction or waiver] on the record.” (§ 1203.097, subd.
(a)(5)(A).)
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People v. Dueñas (2019) 30 Cal.App.5th 1157 held due
process requires a trial court to conduct an ability-to-pay hearing
and ascertain a defendant’s ability to pay before imposing court
assessments and executing a restitution fine. A number of courts
have concluded Dueñas was wrongly decided. (See, e.g., People
v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1060; People v. Adams (2020) 44 Cal.App.5th 828, 829;
People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Petri
(2020) 45 Cal.App.5th 82, 90-92.) Our Supreme Court currently
is considering whether a trial court must consider a defendant’s
ability to pay before imposing or executing fines, fees, or
assessments and, if so, which party bears the burden of proof.
(People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)
Because we are remanding this case for modification of
the terms of Lugo’s probation, we need not reach his contention
that his counsel was constitutionally ineffective. Lugo may raise
any ability-to-pay argument, and request a hearing—at least
under section 1203.097, subdivision (a)(5)(A)—in the trial court
on remand.
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DISPOSITION
We affirm David Michael Lugo’s conviction. We remand
the matter for the trial court to (1) modify the terms of Lugo’s
probation, and (2) consider any ability-to-pay issue Lugo wishes
to raise concerning the domestic violence fee, restitution fine,
and court assessments.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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