People v. Hicks

• Decision Date: 24 September 2019
• Docket Number: B291307
• Citation: 40 Cal.App.5th 320,253 Cal.Rptr.3d 116
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darrick Demond HICKS, Defendant and Appellant.

40 Cal.App.5th 320

253 Cal.Rptr.3d 116

The PEOPLE, Plaintiff and Respondent,

v.Darrick Demond HICKS, Defendant and Appellant.

B291307

Court of Appeal, Second District, Division 2, California.

Filed September 24, 2019

Certified for Partial Publication.^*

Law Office of John J. Uribe and John J. Uribe for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie C. Brenan, Supervising Deputy Attorney General, and Toni R. Johns Estaville, Deputy Attorney General, for Plaintiff and Respondent.

HOFFSTADT, J.

Earlier this year, one of our sister courts in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas ) held that due process precludes a court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant absent a finding that the defendant has a "present ability to pay" them. ( Id. at pp. 1164, 1167, 242 Cal.Rptr.3d 268.) As explained below, we disagree with Dueñas 's analysis, consequently conclude that Dueñas was wrongly decided, and accordingly reject the Dueñas -based challenge presented in this appeal. In the unpublished portion of this opinion, we also affirm the underlying convictions.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

On a Sunday afternoon in mid-November 2017, Los Angeles Sheriff's Deputies Christopher Morris (Deputy Morris) and Bryan Wiggins (Deputy Wiggins) responded to a call from a second-floor apartment in Palmdale, California. The caller had reported that his ex-boyfriend refused to leave and had fallen asleep on his sofa.

When they arrived, Deputies Morris and Wiggins found Darrick Demond Hicks (defendant) asleep on the sofa. Deputy Wiggins roused defendant by nudging his leg and calling his name. Defendant sat up and repeatedly asked why the deputies were in the apartment. Deputy Wiggins explained that defendant's ex-boyfriend had called 911 and that defendant needed to leave.

As Deputy Wiggins spoke with defendant, he noticed that defendant was speaking rapidly, sweating profusely, and involuntarily clenching his jaw. Because these symptoms are consistent with being under the influence of a stimulant, Deputy Wiggins asked defendant if he would participate in field sobriety tests; defendant agreed. Deputy Wiggins performed two such tests, each of which yielded a result consistent with being under the influence of a stimulant: Defendant's resting pulse was 132 beats per minute (where normal is 60 to 90 beats per minute), and his pupils were dilated. Based on the totality of defendant's symptoms and the test results, Deputy Wiggins determined that defendant was under the influence of a controlled substance. He informed defendant of his conclusion, told him he was going to place him under arrest, and asked defendant to stand and put his hands behind his back. Defendant complied with Deputy Wiggins's order and was placed in handcuffs.

Deputy Wiggins and Deputy Morris then began to escort defendant out of the apartment, each gripping one of defendant's forearms lightly. After several steps, defendant stopped walking forward, planted his feet, tensed up his body, and started pushing his torso backwards and to the side. Each deputy sensed that defendant was preparing either to throw his head back (possibly to head-butt one of the deputies) or to break free from their grasp (possibly to throw an elbow at one of the deputies).

To prevent any melee before it started, the deputies used their body weight to place defendant face down onto the nearby sofa, although they immediately turned defendant onto his side so he could breathe. While on the sofa, defendant—all the while screaming—tried to lift his torso, squirmed from side to side, and repeatedly kicked his legs upward towards his buttocks. One of defendant's kicks struck Deputy Morris in the arm. It took both deputies to keep defendant prone on the sofa. Defendant ignored the deputies' repeated orders to "calm down" and "stop moving around."

After one of the deputies called for backup, additional officers arrived and a third officer, Officer Larry Terrell, had to avoid defendant's kicks to place a nylon strap around defendant's legs to bind them together. When defendant continued kicking his bound legs, the deputies attached the leg strap to his handcuffs. With the assistance of fire fighters, defendant was then lashed to a soft restraint chair and slid on a track down the stairs to the first floor. The back-up officers videotaped defendant's continued resistance.

A paramedic who arrived with the fire fighters also observed that defendant had symptoms consistent with being under the influence of a stimulant.

II. Procedural Background

The People charged defendant with three counts of resisting an executive officer ( Pen. Code, § 69 ),¹ one for Deputy Wiggins, one for Deputy Morris,² and one for Deputy Terrell, and a single misdemeanor count of being under the influence of a controlled substance ( Health & Saf. Code, § 11550 ).

A jury convicted defendant of all counts.

In July 2018, the trial court sentenced defendant to three years of formal probation for the three felony resisting counts. The court ordered defendant to pay a $40 court assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment ( Gov. Code, § 70373 ), a $150 drug program fee ( Health & Saf. Code, § 11372.7 ), and a restitution fine of $300 (§ 1202.4). One of defendant's conditions of probation is to "obey all ... orders of the court," which includes paying all assessments, fines and fees. Defendant did not object to the imposition of the assessments, fee and fine, or to their payment as a condition of probation. For the misdemeanor, the court imposed a time-served jail sentence.

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that (1) none of his convictions is supported by sufficient evidence, and (2) the trial court's imposition of the assessments, fee and fine violate due process under Dueñas , supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268.

I. Sufficiency of the Evidence Challenge^**

II. Dueñas -Based Challenge

Defendant argues that the trial court violated his due process rights in imposing $70 in assessments, the $300 restitution fine, and the $150 drug program fee without first determining his present ability to pay. As a threshold matter, we must correct the trial court's error in failing to impose the $70 in assessments as to each count. (§ 1465.8, subd. (a) [assessment applies to "every conviction"]; Gov. Code, § 70373, subd. (a) [same]; see also People v. Smith (2001) 24 Cal.4th 849, 853, 102 Cal.Rptr.2d 731, 14 P.3d 942 [appellate court may correct error in not imposing mandatory financial obligations].) As corrected, defendant was obligated to pay, as a condition of probation, a total of $730—$280 in assessments, a $300 restitution fine, and a $150 drug program fee. Defendant's challenge requires us to interpret the relevant due process precedent and then to apply our interpretation to undisputed facts. These are tasks we undertake de novo. ( Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 416, 159 Cal.Rptr.3d 702, 304 P.3d 188 [constitutional interpretation]; Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 1384, 191 Cal.Rptr.3d 551, 354 P.3d 346 [undisputed facts to law].)

A. The Dueñas decision

In January 2019, Dueñas held that "due process of law requires [a] trial court to ... ascertain a defendant's present ability to pay before it imposes " (1) "court facilities and court operations assessments" (under section 1465.8 and Government Code section 70373, respectively), or (2) a restitution fine (under section 1202.4). ( Dueñas , supra , 30 Cal.App.5th at pp. 1164, 1167, 1172, 242 Cal.Rptr.3d 268, italics added; see also, id. at p. 1172, 242 Cal.Rptr.3d 268 [restitution fine imposed without an ability to pay hearing must be stayed until such a hearing is conducted].)

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. Starting with Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (Griffin ), this line of precedent reads due process to require 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. (See Griffin , at p. 19, 76 S.Ct. 585 [due process requires state to provide criminal defendants with a free transcript for use on appeal]; Preston v. Municipal Court of San Francisco (1961) 188 Cal.App.2d 76, 87-88, 10 Cal.Rptr. 301 [same]; Mayer v. Chicago (1971) 404 U.S. 189, 190, 196-198, 92 S.Ct. 410, 30 L.Ed.2d 372 [same, even when the crime was punishable solely by a fine] (Mayer ); M.L.B. v. S.L.J. (1996) 519 U.S. 102, 107, 127, 117 S.Ct. 555, 136 L.Ed.2d 473 [same, as to transcripts terminating parental rights]; Jameson v. Desta (2018) 5 Cal.5th 594, 599, 605, 623, 234 Cal.Rptr.3d 831, 420 P.3d 746 [due process requires state to waive court report fees for civil litigants for use on appeal] (Jameson ); see also Gov. Code, § 68630, subd. (a) [articulating California's policy to give "all persons ... access to the courts" and to "ensure that court fees are not a barrier to court access"]; see also id. , § 68631 [creating mechanism for waiver of court fees].)

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. ( In re Antazo (1970) 3 Cal.3d 100, 103-104, 113-114, 89 Cal.Rptr. 255, 473 P.2d 999 (Antazo ); Williams v. Ill. (1970) 399 U.S. 235, 241, 90 S.Ct. 2018, 26 L.Ed.2d 586 (Williams ); Tate v. Short (1971) 401 U.S. 395, 396-397, 91 S.Ct. 668, 28 L.Ed.2d 130 ; Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 103 S.Ct. 2064, 76 L.Ed.2d 221 (Bearden ).)

B. Is Dueñas good law?

D...