People v. Lewis CA5

Filed 10/30/20 P. v. Lewis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F078514 Plaintiff and Respondent, (Kern Super. Ct. No. BF173316A) v.

DONALD EUGENE LEWIS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kevin Quade, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION Appellant/defendant Donald Eugene Lewis was convicted of a felony and sentenced to prison. On appeal, he contends the court improperly ordered him to pay restitution fines, fees, and assessments without determining his ability to pay in violation of his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject defendant’s contention but will remand the matter for the court to modify and correct the abstract of judgment, and otherwise affirm. FACTS On August 8, 2018, Kern County Probation Officers Ryan Pitts and Arturo Cervantes were driving their marked probation vehicle on Olive Tree Court and looking for a probationer with an active arrest warrant. The officers saw defendant in a motel parking lot, stopped him, and asked his name and whether he was on probation. Defendant correctly identified himself and said he was not on probation. Officer Pitts conducted a records check and determined defendant had an active warrant out for his arrest. Officer Pitts searched defendant and found a black fixed-blade knife in his pocket. The knife was approximately six and three-quarters inches long, and a red bandana was wrapped around the handle. In another pocket, Pitts found a clear glass pipe with burn marks, that was consistent with the type used to smoke methamphetamine. When Pitts told defendant that he found the pipe, defendant said, “[Y]eah.” Pitts asked when he had last smoked methamphetamine, and defendant said, “[Y]esterday.” PROCEDURAL BACKGROUND On November 5, 2018, an amended information was filed in the Superior Court of Kern County charging defendant with count 1, felony possession of a concealed dirk or dagger (Pen. Code, § 21310),1 with two prior strike convictions (§§ 667, subds. (c)–(j),