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People v. Hicks

California Court of Appeals, Second District, Second Division

September 24, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
DARRICK DEMOND HICKS, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          Appeal from a judgment of the Los Angeles Superior Court No. MA072856, Shannon Knight, Judge. Affirmed.

          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 (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.) 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 In the unpublished portion of this opinion, we also affirm the underlying convictions.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 ...


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