People v. Moffett CA4/1

Filed 8/14/20 P. v. Moffett CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076344

Plaintiff and Respondent,

v. (Super. Ct. No. SCS305752)

BRIAN MOFFETT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Garcia, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

On June 20, 2019, a jury convicted Brian Moffett on one count of child

abuse (Pen. Code,1 § 273a, subd. (a)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true the accompanying allegations that Moffett used a deadly weapon (§§ 1192.7, subds. (c)(8), (23), 12022.7, subd. (a)) in commission of both crimes. Moffett now appeals arguing that the trial court erred by giving the flight instruction (CALCRIM No. 372), and that the imposed fines, fees, and assessments, which he did not object to at sentencing, violated his due process rights because he did not receive an ability to pay hearing. We find the use of CALCRIM No. 372 to be proper, and Moffett forfeited his challenge to the fines, fees, and assessments by failing to object. Accordingly, we affirm. BACKGROUND On December 31, 2018, Wesley Anderson looked out his bedroom window after hearing loud banging coming from his neighbor’s fence. Anderson saw Moffett pulling and banging on his neighbor’s gate. Anderson ran downstairs and yelled at Moffett to, “Get out of here,” and “What are you doing?” Moffett replied he had to free Anderson’s neighbor’s dog. Moffett tried to climb over the fence, which prompted Anderson to tell his wife to call 9-1-1. Anderson’s neighbor, A.C., a teenager, came out to investigate the noise coming from A.C.’s front yard. Upon A.C. stepping outside, Moffett began yelling at A.C. to let A.C.’s dog out. A.C. responded that he was not going to let his dog out and warned Moffett to leave or A.C. would call the police. A.C. turned around to enter his house, and Moffett jumped over the fence, tackled A.C., and struck A.C.