People v. Lugo CA2/3

Filed 12/16/20 P. v. Lugo CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B300924

Plaintiff and Respondent, Los Angeles County Super. Ct. No. SA100283 v.

DAVID MICHAEL LUGO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Yvette Verastegui, Judge. Conviction affirmed; remanded with instructions.

Lori A. Quick, 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, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Defendant and appellant David Michael Lugo pleaded no contest to injuring his wife in violation of Penal Code section 273.5, subdivision (a).1 On appeal, Lugo contends (1) the condition of his probation that he “not use, or threaten to use, any force or violence against any person” is “unconstitutionally overbroad on its face,” and (2) his trial counsel was unconstitutionally ineffective in failing to object to the domestic violence fee, restitution fine, and court assessments. The Attorney General agrees the probation condition should be modified to clarify Lugo may engage in lawful self-defense or defense of others. As we are remanding the case for the court to modify the “force or violence” term of Lugo’s probation, we need not reach his claim that his counsel should have requested a hearing to determine his ability to pay the domestic violence fee, restitution fine, and court assessments. Lugo may raise any inability to pay in the trial court on remand. FACTS AND PROCEDURAL BACKGROUND One afternoon in February 2019 Lugo threw an internet modem at his wife Luna, who was five months pregnant.2 The modem hit Luna on the left side of her stomach. Luna fell to the floor in severe pain. As she lay on the ground, “she felt her stomach start to really tighten, and the pain was worsening.” Lugo drove Luna to the hospital and “dropped [her] off.” The hospital released Luna the same day.