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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

DAVID MICHAEL LUGO,

Defendant and Appellant.

B300924

Los Angeles County

Super. Ct. No. SA100283

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.

_________________________
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 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.
3

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 selfdefense 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).)
5

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.