People v. Diaz CA2/3 ( 2020 )

Filed 12/15/20 P. v. Diaz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299918
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA387967
v.
DONIVAN DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Affirmed.
Karyn H. Bucur, 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, Roberta L. Davis and William H. Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2014, defendant Donivan Diaz was sentenced to life
without the possibility of parole and ordered to pay a fee, an
assessment, a fine, and victim restitution. We affirmed the
judgment as modified in 2016. (People v. Diaz (Apr. 15, 2016,
B258629 [nonpub. opn.] (Diaz I).) In this appeal, Diaz challenges
the trial court’s May 2019 order denying his motion for
modification of sentence pursuant to Penal Code1 section 1202.4,
subdivision (f). Diaz contends that the court erred because it
should have determined his ability to pay the fee, assessment,
fine, and victim restitution awards imposed in 2014 during the
sentencing hearing. We affirm.
BACKGROUND
In June 2014, a jury convicted Diaz of first degree murder,
and found true the allegations that he committed the murder
while engaged in the crimes of robbery and burglary and a
principal discharged a firearm during the murder. (Diaz I, supra,
B258629 [p. 2].) In August 2014, the trial court sentenced Diaz to
life without the possibility of parole. The court also ordered Diaz
to pay a $40 court security fee (§ 1465.8), a $30 criminal
convictions facilities assessment (Gov. Code, § 70373), a $300
restitution fine (§ 1202.4, subd. (b)), $10,968 in restitution to the
California Victim Compensation Board (Board) for funeral and
burial expenses (§ 1202.4, subd. (f)), and an additional $208.50 in
restitution to Paula Cherry for funeral and burial expenses (§
1 All undesignated statutory references are to the Penal Code.
2
1202.4, subd. (f)).2 Diaz did not object when the court imposed the
fee, assessment, fine, and restitution awards. In fact, as to the
restitution awards, Diaz’s counsel stated they were not
“unreasonable under the circumstances.” We affirmed the
judgment as modified in Diaz I.
On May 20, 2019, Diaz moved to modify his August 2014
sentence pursuant to section 1202.4, subdivision (f)(1). Diaz
contended that the sentencing court erred by not identifying
“each victim and loss to which the restitution fine pertains as is
mandated” by section 1202.4, subdivision (f)(3). Diaz also
contended that the court erred by requiring him to pay $10,968 in
restitution to the Board without determining his ability to pay
the award. Notably, although the motion was filed more than
four months after People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas) was filed, Diaz did not cite Dueñas, and did not
challenge the imposition of the $40 court security fee, the $30
criminal convictions facilities assessment, or the $300 restitution
fine.3
2 As noted in Diaz I, the sentencing minute order and abstract of
judgment also included, incorrectly, a $300 parole revocation
restitution fine. That fine was not imposed by the court at the
sentencing hearing and, in any event, should not have been imposed
because Diaz was sentenced to life without the possibility of parole.
Accordingly, we directed the court to correct the sentencing minute
order and abstract of judgment.
3In passing, Diaz referred to a $200 restitution fine under section
1202.4, subdivision (b)(1), and stated that he is challenging the
imposition of the fine to the extent it exceeds the statutory minimum
without considering his ability to pay as required by subdivision (d) of
that statute. Here, the court imposed the minimum restitution fine,
$300, and therefore it did not violate section 1202.4, subdivision (d).
3
DISCUSSION
Diaz argues that his sentence is unauthorized and the trial
court erred in denying his motion without determining his ability
to pay the fine, fee, assessment, and victim restitution awards.
For several reasons, we conclude the motion was properly denied.
First, Diaz did not challenge the victim restitution awards
in his direct appeal from the judgment in Diaz I. His failure to do
so precludes him from challenging the restitution awards in a
subsequent appeal, absent a showing of a justification for the
delay. (People v. Senior (1995) 33 Cal.App.4th 531, 535–538.)
Diaz has not demonstrated any justification for his delay in
challenging the restitution awards.
Second, Diaz forfeited any challenge to the $10,968 and
$208.50 restitution awards by failing to object at the August 22,
2014 sentencing hearing. (People v. Mays (2017) 15 Cal.App.5th
1232, 1237 [“A defendant wishing to argue on appeal that there is
no factual basis for a restitution order must object on that ground
in the trial court to preserve the issue for appeal.”].)
Third, to the extent Diaz suggested in his motion that the
restitution awards should be reduced or eliminated because he
was unable to pay them, the trial court was statutorily precluded
from considering his inability to pay. (§ 1202.4, subd. (g); People
v. Draut (1999) 73 Cal.App.4th 577, 582.)
Fourth, the rule in Dueñas does not apply to restitution
based on a victim’s loss under section 1202.4, subdivision (f).
(Dueñas, supra, 30 Cal.App.5th at p. 1169; see People v. Evans
(2019) 39 Cal.App.5th 771, 777 [defendant’s ability to pay direct
restitution “is not a proper factor to consider in setting a
restitution award” under section 1202.4, subdivision (f)(2)].) In
this case, the restitution awards reimbursed the Board and Paula
4
Cherry for payments made by them for the victim’s funeral and
burial expenses. (See § 1202.4, subd. (f)(4)(B).) Accordingly, the
court did not have to consider Diaz’s ability to pay before ordering
him to pay $10,968 to the Board and $208.50 to Cherry.
Finally, as a general matter, the failure to raise an
argument in the lower court forfeits the argument the ruling was
erroneous. (See People v. Trujillo (2015) 60 Cal.4th 850, 856
[constitutional right may be forfeited in criminal as well as civil
cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it].) Here, Diaz did not
cite Dueñas, and he did not raise the issue of his inability to pay
the previously imposed $40 court security fee, the $30 criminal
convictions facilities assessment, or the $300 restitution fine, in
his motion. Because Dueñas was decided months before Diaz filed
the motion, he had the opportunity to argue, and the court could
have considered, whether he was unable to pay the fee,
assessment, and fine. By failing to raise this issue below, Diaz
forfeited the argument that the court erred by not considering his
ability to pay the fee, assessment, and fine. (See People v. Miracle
(2018) 6 Cal.5th 318, 356.)
5
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
6