California Court of Appeals, Second District, Second Division
FOR PARTIAL PUBLICATION [*]
from a judgment of the Los Angeles Superior Court No.
MA072856, Shannon Knight, Judge. Affirmed.
Office of John J. Uribe and John J. Uribe for Defendant and
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.
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 In the unpublished portion of this opinion, we also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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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).
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
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
paramedic who arrived with the fire fighters also observed
that defendant had symptoms consistent with being under the
influence of a stimulant.
People charged defendant with three counts of resisting an
executive officer (Pen. Code, § 69),  one for
Deputy Wiggins, one for Deputy Morris,  and one for Deputy
Terrell, and a single misdemeanor count of being under the