People v. O'Dell CA5

Filed 4/30/21 P. v. O’Dell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F077718 Plaintiff and Respondent, (Kings Super. Ct. No. 17CMS0896) v.

ERIC O’DELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION Appellant and defendant Eric O’Dell, an inmate in Corcoran State Prison, was convicted of possession of a sharpened instrument by an inmate (Pen. Code, § 4502, subd. (a))1 with a prior strike conviction, sentenced to an additional term in prison, and ordered to pay a restitution fine and other fees. On appeal, defendant contends the court improperly ordered him to pay the restitution fine and fees without determining his ability to pay in violation of his constitutional rights to due process and equal protection under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm. FACTS On October 17, 2015, defendant was waiting to enter the prison’s recreational yard. Correctional Officer Stephanie Denman conducted patdown searches and used a handheld metal detector to clear each inmate into the yard. The metal detector sounded off twice when she scanned one of defendant’s shoes. Correctional Officer Raymond Puga, who was standing nearby, searched defendant and asked him to remove his shoes and hand them to Puga. As defendant handed over his shoes, Puga saw something in defendant’s left boot that was wrapped in plastic, four or five inches long, and shaped like a cylinder. Defendant grabbed the object from his shoes and ran across the yard. Officer Denham testified that she saw defendant take the object out of his boot. The object was wrapped in tape or plastic, and it was larger than the palm of defendant’s hand. Officer Puga ordered defendant to get on the ground, but defendant kept running and headed to the urinals in the yard. Defendant made a throwing motion toward a urinal. Defendant may have tried to flush the urinal, and then he got on the ground as ordered.