Filed 12/16/20 P. v. Lugo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

D AVID MICHAEL LUGO

,

Defendant and Appellant

. B 300924

Los Angeles County Super. Ct. No. SA100283

APPEAL from a n order of the Superior Court of
Los Angeles County, Yvette Verastegui , Judge

. Conviction

a ffirmed ; 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.

_________________________2 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 f

ee , 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. A s we are remand ing 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 abili ty to pay the domestic violence
f ee , restitution fine, and court assessments . Lugo may raise

any inability to pay in the trial court on remand

. FACT S AND PROCEDURAL BACKGROUND
One afternoon in February 2019 Lugo threw an internet modem at his wife Luna, w ho 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.3 The People charged Lu go 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 Ju ly 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 an d 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, 2 019, 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 ineffec tive 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 makes4

no allowance for [him] to exercise the constitutional right to self

defense under any circumstances.” The Attorney General agrees tha t 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.4 th 615, 629 [probation

con dition 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 th e 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 n ot 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 c ourt 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).)5 People v. Due ñ as (2019) 30 Cal.App.5 th 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 Due ñ as was wrongly decided. (See , e.g., People

v

. Hicks (2019) 40 Cal.App.5 th 320, 327

- 329, review granted
Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5 th
1055 , 1060 ; People v. Adams (2020) 44 Cal.App.5 th 828, 829; People v. Cota (2020) 45 Cal.App.5 th 786, 794

- 795; P eople v. Petri (2020) 45 Cal.App.5 th 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.5 th 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.6 DISPOSITION We affirm David Michael Lugo’s convictio n. 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.