People v. King CA4/1

Filed 9/17/20 P. v. King CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077127

Plaintiff and Respondent,

v. (Super. Ct. No. SCD277233)

AARON SINCLAIR KING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed as modified with directions. John L. Staley, 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 Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Aaron Sinclair King of false imprisonment by violence

(Pen. Code,1 §§ 236 and 237, subd. (a); count 9); corporal injury to a spouse (§ 273.5, subd. (a); counts 8 and 11); and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 10). The court declared a mistrial as to counts 1 through 7. Prior to sentencing, the parties reached a plea agreement as to count 6 (assault with force likely to cause great bodily injury). King pleaded guilty to that count, and the People dismissed the balance of the information. The court sentenced King to a determinate term of 10 years in prison. The court, without objection, imposed a $10,000 restitution fine and various other fees and assessments as recommended in the probation officer’s report. King appeals contending the court erred in imposing fines, fees, and assessments without first conducting an ability to pay hearing as mandated by People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). He also contends the concurrent sentence on count 9 should be stayed under section 654. The People contend King has forfeited his Dueñas challenge for failure to object in the trial court. The People correctly agree with King that the sentence on count 9 must be stayed under section 654. We will accept the People’s concession as to count 9 and will order the judgment modified accordingly. We also agree with the People that King has forfeited the Dueñas challenge as we will explain below.