Filed 10/29/26 P. v. Hicks CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B291307
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. MA072856))
DARRICK DEMOND HICKS, OPINION ON REMAND
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed in part,
vacated in part, and remanded with directions.
John J. Uribe; Mark D. Rosenbaum, Amanda Mangaser
Savage, Brittnee Bui and Jacob Maddox, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Charles
C. Ragland, Chief Assistant Attorney General, Lance E. Winters
and Susan Sullivan Pithey, Assistant Attorneys General,
Stephanie C. Brenan, Toni R. Johns Estaville, Idan Ivri and
Nima Razfar, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________
A jury convicted defendant and appellant Darrick Demond
Hicks (Hicks) of three counts of resisting an executive officer
(Pen. Code, § 69) and a misdemeanor count of being under the
influence of a controlled substance (Health & Saf. Code, § 11550,
subd. (a)). The trial court sentenced Hicks to three years of
formal probation for the felony resisting counts and imposed a
time-served jail sentence for the misdemeanor. The court ordered
Hicks to pay a $40 court operations assessment for each count
(Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities
assessment for each count (Gov. Code, § 70373, subd. (a)(1)), a
$150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)),
and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)).
In an opinion filed on September 24, 2019, this court
affirmed the judgment, rejecting Hicks’s arguments that (1) his
convictions are not supported by sufficient evidence and (2) the
trial court’s imposition of the assessments, fee, and fine violate
due process. (People v. Hicks (Sept. 24, 2019, B291307), review
granted Nov. 26, 2019, B291307, transferred and opn. ordered
depublished, June 10, 2026.) The California Supreme Court
granted review and, on June 10, 2026, transferred the case to this
court with directions to vacate the prior decision and reconsider
the cause in light of People v. Kopp (2025) 19 Cal.5th 1 (Kopp).
After considering the parties’ supplemental briefs and oral
arguments, we vacate the prior decision, vacate the portion of the
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judgment concerning the imposition of court-ordered payments,1
and remand the matter for further sentencing proceedings
consistent with the standards set forth in Kopp, supra, 19 Cal.5th
1. We affirm the judgment in all other respects.
FACTS
In November 2017, Los Angeles Sheriff’s Deputies
Christopher Morris (Deputy Morris) and Bryan Wiggins (Deputy
Wiggins) responded to a call from a second-floor apartment in
Palmdale. The caller had reported that his ex-boyfriend refused
to leave and had fallen asleep on his sofa.
When they arrived, Deputies Morris and Wiggins found
Hicks asleep on the sofa. Deputy Wiggins roused Hicks by
nudging his leg and calling his name. Hicks sat up and
repeatedly asked why the deputies were in the apartment.
Deputy Wiggins explained that Hicks’s ex-boyfriend had called
911 and that Hicks needed to leave.
As Deputy Wiggins spoke with Hicks, he noticed that Hicks
was speaking rapidly, sweating profusely, and involuntarily
clenching his jaw. Because these symptoms are consistent with
being under the influence of a stimulant, Deputy Wiggins asked
Hicks if he would participate in field sobriety tests; Hicks agreed.
Deputy Wiggins performed two such tests, each of which yielded
a result consistent with being under the influence of a stimulant:
Hicks’s resting pulse was 132 beats per minute (where normal is
60 to 90 beats per minute), and his pupils were dilated. Based on
the totality of Hicks’s symptoms and the test results, Deputy
1 We follow Kopp in referring to “fines, ancillary costs, and
victim restitution” commonly imposed at sentencing, collectively,
“as ‘court-ordered payments.’ ” (Kopp, supra, 19 Cal.5th at p. 11.)
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Wiggins determined that Hicks was under the influence of a
controlled substance. He informed Hicks of his conclusion, told
Hicks he was going to place him under arrest, and asked Hicks to
stand and put his hands behind his back. Hicks complied with
Deputy Wiggins’s order and was placed in handcuffs.
Deputy Wiggins and Deputy Morris then began to escort
Hicks out of the apartment, each gripping one of Hicks’s forearms
lightly. After several steps, Hicks stopped walking forward,
planted his feet, tensed up his body, and started pushing his
torso backwards and to the side. Each deputy sensed that Hicks
was preparing either to throw his head back (possibly to head-
butt one of the deputies) or to break free from their grasp
(possibly to throw an elbow at one of the deputies).
To prevent any melee before it started, the deputies used
their body weight to place Hicks face down onto the nearby sofa,
although they immediately turned Hicks onto his side so he could
breathe. While on the sofa, Hicks—all the while screaming—
tried to lift his torso, squirmed from side to side, and repeatedly
kicked his legs upward towards his buttocks. One of Hicks’s
kicks struck Deputy Morris in the arm. It took both deputies to
keep Hicks prone on the sofa. Hicks ignored the deputies’
repeated orders to calm down.
After one of the deputies called for backup, additional
officers arrived and a third officer, Deputy Larry Terrell (Deputy
Terrell), had to avoid Hicks’s kicks to place a nylon strap around
Hicks’s legs to bind them together. When Hicks continued
kicking his bound legs, the deputies attached the leg strap to his
handcuffs. With the assistance of firefighters, Hicks was then
lashed to a soft restraint chair and slid on a track down the stairs
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to the first floor. The backup officers videotaped Hicks’s
continued resistance.
A paramedic who arrived with the firefighters also
observed that Hicks had symptoms consistent with being under
the influence of a stimulant.
DISCUSSION
I. Sufficiency of the Evidence
In assessing the sufficiency of the evidence underlying a
conviction, “[w]e ‘review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’
[Citation.]” (People v. Hin (2025) 17 Cal.5th 401, 455.)
A. Resisting an executive officer counts
A defendant may commit the crime of resisting an
executive officer in one of two ways: (1) by “attempt[ing], by
means of any threat or violence, to deter or prevent an executive
officer from performing any duty imposed upon the officer by
law,” or (2) by “knowingly resist[ing], by the use of force or
violence, the officer, in the performance of his or her duty[.]”
(Pen. Code, § 69; see also In re Manuel G. (1997) 16 Cal.4th 805,
814.) Where, as here, a defendant is charged with the second
variant of this crime, the People must prove that (1) “ ‘the
defendant resist[ed] the officer “by the use of force or violence” ’ ”
(People v. Atkins (2019) 31 Cal.App.5th 963, 973); (2) the
defendant knew “ ‘that the person [he was] resist[ing] [was] an
executive officer and that the officer [was] engaged in the
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performance of his/her duty’ ” (id. at p. 975); and (3) the officer
“ ‘was,’ ” in fact, “ ‘acting lawfully at the time’ ” (id. at p. 973).
Substantial evidence supports the jury’s findings that
Hicks knowingly resisted Deputies Morris, Wiggins, and Terrell
by use of force or violence. The record contains evidence that
Hicks resisted all three officers by the use of force or violence
when, among other things, he flailed about and kicked his legs
while on the sofa and while disobeying the officers’ repeated
orders to calm down and stop moving. (Accord, People v.
Carrasco (2008) 163 Cal.App.4th 978, 985–986 [defendant
refused to comply with officers’ orders to stop resisting, and
instead flailed about, yelled, and kicked; substantial evidence of
resistance].) The record also contains evidence that Hicks knew
he was resisting Sheriff’s deputies, as they were wearing
uniforms and told him they were there because Hicks’s ex-
boyfriend had called for their assistance. And the record contains
evidence that the officers were lawfully responding to a 911 call
as part of their duties.
Hicks offers three counterarguments. First, he argues that
he did not “form[] the intent necessary” to violate Penal Code
section 69 because he initially complied with Deputy Wiggins’s
request to participate in field sobriety tests and to stand up and
be cuffed. This argument ignores that the only intent
requirement for the second variant of Penal Code section 69 is a
general intent requirement—namely, that a defendant has
knowledge of the pertinent facts. (See People v. Rasmussen
(2010) 189 Cal.App.4th 1411, 1419–1421.) And even if a further
showing of intent were required, we reject Hicks’s suggestion that
any modicum of cooperation by a defendant somehow immunizes
him from prosecution for any and all subsequent resistance.
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Second, Hicks asserts that his conduct on the sofa does not
constitute resisting an executive officer because he was merely
engaged in “helpless flailing” prompted by an inability to breathe
and was not specifically intending to kick “any particular
deputy,” such that he was “not intending with violence or force to
resist the deputies.” This assertion is without merit actually
(because the officers immediately turned Hicks onto his side to
allow him to breathe) and without merit legally (because the
“forceful resistance of an officer by itself gives rise to a violation
of [Penal Code] section 69, without proof force was directed
toward or used on any officer” (People v. Bernal (2013)
222 Cal.App.4th 512, 520).
Lastly, Hicks contends that this is not a “typical” Penal
Code section 69 case and, in support, cites several cases where
the defendants’ resistance was accompanied by threats of
violence or the actual infliction of harm. He also cites People v.
Rodriguez (2018) 26 Cal.App.5th 890 (Rodriguez) for the
proposition that a Penal Code section 69 conviction must be
supported by “a finding of deliberately aggressive behavior[.]”
(Id. at p. 912.) Where the facts of Hicks’s resistance fall on a
hypothetical bell curve of resistance is irrelevant; what matters
to a sufficiency of the evidence challenge is whether those facts
meet the minimum threshold for a constitutionally valid
conviction. Here, they do. And the excerpt from Rodriguez cited
by Hicks noted that a “finding of deliberately aggressive
behavior . . . could satisfy the[] elements” of Penal Code
section 69 (ibid., italics added); Rodriguez did not hold that such
behavior was an absolute prerequisite to conviction.
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B. Controlled substance count
As its name suggests, the crime of being under the
influence of a controlled substance (Health & Saf. Code, § 11550,
subd. (a)) requires proof of “being in that state in any detectable
manner[,]” including by manifesting symptoms of drug use.
(People v. Canty (2004) 32 Cal.4th 1266, 1278 (Canty).)
Substantial evidence supports the jury’s verdict that Hicks was
under the influence—both Deputy Wiggins and a responding
paramedic concluded, based on their training and experience,
that Hicks was under the influence of a stimulant due to his
dilated pupils, his abnormally high pulse rate, his profuse
sweating, his jaw clenching, and his inability to remain still.
Hicks offers three reasons why this evidence was not
enough. First, he contends that the People never proved that he
was under the influence of methamphetamine, specifically. We
disagree, as the record contains substantial evidence (1) that, as
detailed above, Hicks was under the influence of a central
nervous system stimulant and (2) that methamphetamine is just
such a stimulant.
Second, and relatedly, Hicks suggests that he cannot stand
convicted of this crime unless the People submit some sort of
chemical test (blood, urine, or breath) confirming his ingestion of
a controlled substance. This is simply not the law. The cases
Hicks cites—Ramirez v. City of Buena Park (9th Cir. 2009)
560 F.3d 1012, 1021–1024 (Ramirez) and Way v. County of
Ventura (9th Cir. 2006) 445 F.3d 1157, 1158 (Way)—are not to
the contrary, as Ramirez upheld a finding of probable cause to
detain and then arrest a suspect for being under the influence of
a controlled substance based on drug-use symptoms alone and
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Way evaluated the constitutionality of a blanket policy allowing
for strip searches of persons arrested on drug charges.
Third, Hicks cites cases overturning convictions for driving
under the influence when based solely on the presence of
symptoms of drug use. (E.g., People v. Torres (2009)
173 Cal.App.4th 977, 983.) But these cases are irrelevant, as our
Supreme Court has explicitly noted that the crimes of being
under the influence of a controlled substance and driving under
the influence of a controlled substance require different
showings—and only the latter requires proof that the symptoms
impair physical or mental ability. (Canty, supra, 32 Cal.4th at
pp. 1278–1279.)
II. Court-Ordered Payments
Hicks challenges the trial court’s imposition of the court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), court
facilities assessment (Gov. Code, § 70373, subd. (a)(1)), and drug
program fee (Health & Saf. Code, § 11372.7, subd. (a)) without
consideration of Hicks’s ability to pay. He also contends that the
$300 restitution fine (Pen. Code, § 1202.4, subd. (b)) violates the
excessive fines clause, due process, and equal protection.
Although Hicks failed to object to the imposition of these
court-ordered payments in the trial court at his sentencing in
2018, we exercise our discretion to reach the merits of any
arguably forfeited claim. (See Kopp, supra, 19 Cal.5th at p. 9
[explaining that review was granted “to resolve a divergence
among the Courts of Appeal regarding court-ordered financial
obligations imposed on criminal defendants”]; People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court is generally
not prohibited from reaching a question that has not been
preserved for review by a party”]; People v. Brown (2024)
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101 Cal.App.5th 113, 127 [“Courts generally decline to apply the
forfeiture rule to a right derived from recent, unanticipated
changes to the law”].)
In Kopp, the California Supreme Court held “that a
challenge to the amount of a criminal fine”—such as the
minimum restitution fine imposed here under Penal Code
section 1202.4, subdivision (b)—“should initially be reviewed
under the excessive fines provisions of the United States and
California Constitutions.” (Kopp, supra, 19 Cal.5th at p. 9; see
also U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) The
Supreme Court further held that “equal protection issues”
require a trial court to, “upon request, . . . consider a defendant’s
inability to pay before imposing a court operations assessment
(Pen. Code, § 1465.8, subd. (a)(1)) or a court facilities assessment
(Gov. Code, § 70373, subd. (a)(1)).” (Kopp, supra, at p. 9, italics
added.) And, as relevant here, the Supreme Court observed that
Health and Safety Code section 11372.7, subdivision (b),
mandates that a drug program fee under subdivision (a) of that
section “only be imposed upon a finding of an ability to pay.”
(Kopp, supra, at p. 18, italics added.)
We remand the matter to permit Hicks to “challenge the
imposition of any fine as constitutionally excessive under the
federal and state Constitutions” (Kopp, supra, 19 Cal.5th at p. 30)
or to raise any other challenge compatible with the standards set
forth in Kopp. We decline to express an opinion on such
challenges in the first instance here. If requested by Hicks, the
trial court shall consider Hicks’s inability to pay before imposing
a court operations assessment (Pen. Code, § 1465.8, subd. (a)(1))
or a court facilities assessment (Gov. Code, § 70373, subd. (a)(1)).
(Kopp, supra, at p. 31.) Finally, “the trial court must consider
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[Hicks]’s ability to pay as statutorily required before imposing the
[Health and Safety Code section 11372.7, subdivision (a), drug
program] fee.” (Kopp, supra, at p. 30; see also Health & Saf.
Code, § 11372.7, subd. (b).)
DISPOSITION
The opinion in this matter filed on September 24, 2019, is
vacated. The portion of the judgment concerning the imposition
of court-ordered payments is vacated, and the matter is
remanded for further sentencing proceedings consistent with
Kopp, supra, 19 Cal.5th 1 and this opinion. The judgment is
affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
LUI, P. J.
CHAVEZ, J.
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