People v. Diaz CA6

Filed 3/18/15 P. v. Diaz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041162, H041365 (Monterey County Plaintiff and Respondent, Super. Ct. No. SSC130164A)

v.

DAVID DIAZ,

Defendant and Appellant.

Defendant David Diaz pleaded no contest to one count of felony hit and run causing permanent serious injury (Veh. Code, § 20001, subd. (b)(2)) and guilty to one count of misdemeanor driving on a suspended license, admitting three prior convictions for that same offense (id., § 14601.1). On April 25, 2014, Diaz was ordered to serve a total of six months in jail and placed on formal probation for three years. The court further ordered Diaz to pay various fines and fees, including a probation supervision fee of $81 per month. In case No. H041162, Diaz appeals from the judgment of conviction, challenging the $81 monthly probation supervision fee on the basis the trial court failed to first determine his ability to pay that fee. Because his counsel failed to object to the imposition of this fee at the sentencing hearing, he argues in the alternative that if this court finds the objection was forfeited, his counsel was ineffective.

Following a contested hearing on June 27, 2014, Diaz was ordered to pay a total of $1,070,913.72 in victim restitution. In case No. H041365, Diaz appeals from this restitution order. In case No. H041162, we find the claim of error in imposing the probation supervision fee is forfeited by the failure to object below. We further find there was no ineffective assistance of counsel in the failure to object and will affirm the judgment of conviction. In case No. H041365, we find no error and will affirm the order of restitution. I. FACTUAL AND PROCEDURAL BACKGROUND A. The accident Around 8:00 a.m. on July 23, 2013, Soledad police responded to a report of a pedestrian being run over at the intersection of Palm Avenue and Third Street. The victim, 86-year-old Rafael Mendez, was seriously injured, but conscious. He told officers he was crossing the street, but could not recall being hit by a car. Because of his severe injuries, Mendez was airlifted to San Jose Regional Medical Center. After Mendez was taken away, police interviewed two witnesses who had been driving behind a blue Chevrolet Silverado and saw it hit Mendez. The Silverado continued driving another 30 to 50 feet, then stopped. The witnesses saw the driver get out and look back. In the meantime, the witnesses had also gotten out of their car to assist Mendez. The driver, who one of the witnesses recognized as “David,” came over to where Mendez was lying in the street. The witnesses told the driver not to leave, but he told them he was just going back to park his truck on the side of the road. One of the witnesses took a picture of the truck as he did not believe the driver intended to stay on the scene. The driver was seen walking toward a house, then walking back to his truck where he opened the passenger door. Neither witness saw where the driver went after that, although he abandoned the Silverado.