Filed 3/18/15 P. v. Diaz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.

DAVID DIAZ, Defendant and Appellant. H041162, H041365 (Monterey County Super. Ct. No. SSC130164A)

Defendant David Diaz plead ed no contest to one co unt of felony hit and run causing permanent serious inju ry (Veh. Code, § 20001, subd . (b)(2)) and guilty to one

count of misdemeanor drivin g on a suspended license, adm itting three prior convictions for that same offense ( id ., § 14601.1). On Apr il 25, 2014, Diaz was ordered to serve a total of six months in jail and placed on formal probation for three years. The court further ordered Diaz to pay various fines a nd fees, including a prob ation supervision fee of $81 per month. In case No. H041162, Diaz appeals from the judgment of conviction, challenging the $81 monthly probation superv ision fee on the basis the trial court failed to first determine his ability to pay that fee. B ecause his counsel failed to object to the imposition of this fee at the sent encing hearing, he argues in the alternative that if this court finds the objection was forfeited, his counsel was ineffective.2 Following a contested heari ng on June 27, 2014, Diaz wa s ordered to pay a total of $1,070,913.72 in victim restitution. In case No. H0 41365, Diaz appeals from this

restitution order. In case No. H041162, we find the clai m of error in imposing the probation supervision fee is forfeited by the failure to object below. We further find there was no

ineffective assistance of counsel in the failu re to object and will affirm the judgment of

conviction. In case No. H041365, we find no error a nd will affirm the order of restitution.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND A. The accident Around 8:00 a.m. on July 23, 2013, Soledad police re sponded to a report of a pedestrian being run over at the intersecti on of Palm Avenue and Third Street. The victim, 86-year-old Rafael Mendez, was seri ously injured, but conscious. He told officers he was crossing the street, but could not recall being hit by a car. Because of his severe injuries, Mendez was airlifted to San Jose Regional Medical Center. After Mendez was taken away, police in terviewed two witnesses who had been driving behind a blue Chevrolet Silverad o and saw it hit Mendez. The Silverado continued driving another 30 to 50 feet, then stopped. The witnesses saw the driver get out and look back. In the meantime, the wi tnesses had also gotten out of their car to

assist Mendez. The driver, who one of the witnesses r ecognized as “David,” came over to where Mendez was lying in the street. The witnesses told the driver not to leave, but he told them he was just going back to park his truck on the side of the road. One of the witnesses took a picture of the truck as he did not believe the driver intended to stay on

the scene. The driver was s een walking toward a house, then walking back to his truck where he opened the passenger door. Neither witness saw wh ere the driver went after that, although he abandoned the Silverado.3 Police determined the Silver ado belonged to Elaine Ma ydon, Diaz’s girlfriend.

Three witnesses identified Diaz as the driver in a photographic lineup. Maydon told police Diaz had taken the Silverado on the da y of the accident, but she had not heard from him since that day. On July 26, 2013, Diaz ca lled the investigating officers and left them a voicemail denying he was involved in the accident. He met with police the next day and said he knew nothing about the accident. Prior to be ing sentenced, Diaz was interviewed by his probation officer and insisted the truck had been stolen, claiming the eyewitnesses

confused him with someone else. He said he was in San Jose at the time of the accident, but refused to name the person wh o could verify his alibi. Mendez suffered a broken femur, fractured spine, punctured lung and a lacerated spleen. At the time of Diaz’s sentencing, Mendez was confined to a wheelchair and required constant care for his daily needs. B. Plea agreement and sentencing Diaz pleaded no contest to one count of felony hit and run causing permanent serious injury (Veh. Code, § 20001, subd. (b)(2)) and plead ed guilty to a misdemeanor charge of driving on a suspen ded license, admitting three prior convictions for that same offense ( id ., § 14601.1). According to the probation report prepar ed before sentencing, Diaz is unemployed but receives social security be nefits because of a back injury. At sentencing, defense counsel confirmed that Diaz has been perman ently disabled for the past 12 years due to this injury. In ackno wledgement of his disability, the trial court struck the probation condition requiring Diaz to “[m]aintain gainfu l employment or become enrolled as an

active full-time student.” At his April 25, 2014 sentencing hearing, Diaz was ordered to serve a total of six months in jail and was placed on formal prob ation for three years. The court further ordered Diaz to pay various fi nes and fees, including a prob ation supervision fee of $814 per month pursuant to Penal C ode section 1203.1b. In case No. H041162, Diaz appeals from the judgment, arguing the trial court er red in imposing the $81 monthly probation supervision fee because it failed to first determine his ability to pay that fee. C. Victim restitution hearing Following a contested hearing, Diaz was ordered to pay a total of $1,070,913.72 in victim restitution. In case No. H041365, Diaz appeals from the restitution order. On our own motion, we ordered the two appeals considered together for oral argument and disposition. We affirm the judgment and the restitution order.

II. D ISCUSSION A. Appeal in H041162 Diaz argues the trial court erred in imposin g a probation supervision fee as it failed to make a determination regarding his ability to pay such a fee. As a preliminary matter, he argues his failure to object to the imposition of that fee at his sentencing hearing does not mean he forfeited the right to challenge it on appeal. The California Supreme Court recently dis posed of this precise issue, holding that the failure to object at the sentencing hearin g to the imposition of a probation supervision

fee does indeed result in forfe iture of the right to challenge that fee on appeal. ( People v. Trujillo (2015) 60 Cal.4th 850, 858 .) We note, however, even though he has forfeited the claim on appeal, Diaz is not without recourse to seek modification or even outright vacation of the order imposing fees because “[t]he sentencing court as well as the probation officer . . . retains jurisdiction to address ability to pay issues throughout the probationary period.” ( Id . at p. 861.) In the alternative, Diaz argues his trial counsel was ineffective for failing to object to the probation supervision fee at sentencing. The probation report noted that Diaz was not employed, and defense coun sel acknowledged at the senten cing hearing that Diaz had been deemed to be “per manently disabled for the last 12 years.” Diaz contends there was no tactical reason to not object to im position of the fee. We disagree.5 “To prevail on a claim of ineffective assi stance of counsel, a defendant must show both that counsel’s performance was defici ent and that the deficient performance prejudiced the defense. [Citations.] Co unsel’s performance was deficient if the representation fell below an objective sta ndard of reasonableness under prevailing professional norms.” ( People v. Benavides (2005) 35 Cal.4t h 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693- 694.) However, “ ‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the ma nner challenged[,] . . . unless counsel was asked for an explanatio n and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” ( People v. Wilson (1992) 3 Cal.4th 926, 936.) Here, Diaz has failed to show that defense counsel’s performance was deficient. It is plausible defense counsel may not have objected because he considered the issue premature given that Diaz had not yet provi ded his probation officer with financial

information which would allow for an evaluation of his ability to pay the fee. Although defense counsel raised the subject of Diaz’ s permanent disability, there was no evidence as to how much Diaz received in disability paym ents each month. Fu rthermore, the fact that Diaz was deemed permanently disabled related only to his ability to obtain a paycheck, not to his overall financial conditi on. Defense counsel may have been aware

that Diaz had other assets which caused him to not object to the imposition of a monthly fee of $81. Without more evid ence in the record to shed light on the reasonableness of the failure to object, we reject Diaz’s in effective assistance of counsel contention. B. Appeal in H041365 This appeal follows the contested victim restitution hearing which took place on June 27, 2014, approximately two m onths after Diaz was sentenced. We appointed counsel to represent Diaz in this court. Appointed counsel filed an opening brief which states the case and the fa cts, but raises no specific issues. We6 notified Diaz of his right to submit written ar gument in his own beha lf within 30 days. That period has elapsed, and we have received no written argument from Diaz.

Pursuant to People v. Wende (1979) 25 Ca l.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole reco rd and have concluded there is no arguable issue on appeal.

III. D ISPOSITION In case No. H041162, the judgment is affirmed. In case No. H041365, the order imposing victim restitution in the am ount of $1,070,913.72 is affirmed.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.