Opinion
G058525
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD HERCHEL PETERS, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and A. Natasha Cortina, Deputy Attorney General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF1926) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and A. Natasha Cortina, Deputy Attorney General for Plaintiff and Respondent.
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INTRODUCTION
Defendant Richard Herchel Peters was convicted of multiple counts of making criminal threats, false imprisonment, domestic battery, child abuse, and dissuading a witness. In our prior opinion, People v. Peters (May 8, 2019, G055800) [nonpub. opn.], we affirmed the judgment of conviction, but remanded for resentencing due to a sentencing error and to provide the trial court the opportunity to exercise its discretion whether to strike the firearm sentencing enhancements.
The trial court resentenced defendant to a total prison term of 17 years four months. After resentencing, defendant filed a notice of appeal and we appointed counsel to represent him. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case and requesting we review the entire record. We provided defendant 30 days to file written argument on his own behalf; he did not do so.
We have examined the entire record and appointed counsel's Wende/Anders brief; we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
FACTS
The following facts are taken from our prior opinion:
"Defendant lived in Anaheim with his wife, Veronica; Veronica's adult children Keila and Jessica; Jessica's infant daughter; and defendant's 10-year-old son. Defendant and Veronica had an argument the evening of July 12, 2015; Veronica told defendant they should file for divorce. The next morning, defendant and Veronica started arguing again. During their argument, defendant picked up his son and threw him into the living room.
"Defendant retrieved a handgun, approached Veronica, and told her that he was going to kill her. Defendant put the gun against Veronica's neck; Veronica believed that if she argued with defendant he would kill her. The gun left a visible impression on Veronica's neck. During the incident, defendant also caused red marks and bruises on Veronica's chest and arm.
"Defendant ordered Veronica to go into Keila's bedroom; Keila and defendant's son were already inside. Defendant ripped off the baby gate in the doorway and pushed Veronica into the bedroom. Defendant punched and kicked holes in Keila's bedroom door and told them all to stay. Defendant then went to the master bedroom to get a magazine for the handgun he was holding; he loaded the gun and said he was going to kill them. Veronica was very scared and believed defendant would shoot her. Defendant said he would wait for Jessica to come home, and then he would kill all of them.
"Defendant asked Keila if she had called the police, pointed the gun at her face, took her cell phone from her, checked her call history, and threw the cell phone down the hallway. Defendant pointed the gun at Keila, and she thought he was going to shoot her. She was afraid to call the police because she believed defendant would kill her and her family.
"Defendant forced Veronica, Keila, and his son into the master bedroom, and again threatened to kill them. Defendant used Keila's cell phone to text Keila's father and tried to set up a lunch meeting with him, pretending to be Keila. Defendant told Veronica he was going to kill Keila's father.
"Defendant then retrieved several guns and placed them on the bed in the master bedroom and began loading the guns with ammunition. One of the rifles fired and hit a dresser near where Veronica was standing. The rifle firing woke up the baby. When defendant closed the door of the master bedroom, Veronica picked up the baby, left the house with Keila and the baby, and went to the next door neighbor's house. Defendant's son remained in the house with him.
"The neighbor called 911 and reported the incident. When sheriff's deputies arrived, defendant's son was outside the house; he told the deputies that defendant was inside with a gun. While the deputies were interviewing Veronica, defendant called Veronica's cell phone and spoke with a deputy for a total of 30 minutes before coming out of the house, at which time he was arrested."
PROCEDURAL HISTORY
Defendant was found guilty by a jury of four counts of making criminal threats (Pen. Code, § 422, subd. (a) [counts 1, 6, 7, and 13]), one count of domestic battery with corporal injury (id., § 273.5, subd. (a) [count 2]), three counts of false imprisonment by menace or violence (id., §§ 236, 237, subd. (a) [counts 3, 4, and 5]), one count of child abuse (id., § 273a, subd. (a) [count 11]), and one count of dissuading a witness by force or threat (id., § 136.1, subd. (c)(1) [count 12]). The jury also found true the sentencing enhancement allegations that defendant personally used a firearm in the commission of each count. (Id., § 12022.5, subd. (a).)
The trial court sentenced defendant to a total of 22 years in state prison by imposing four years on count 11 plus four years for the enhancement; three years on count 2 plus four years for the enhancement, consecutive; and three years for count 12 plus four years for the enhancement, consecutive. The court imposed concurrent sentences on all other charges and enhancements. Defendant appealed.
In People v. Peters, supra, G055800, we affirmed the judgment of conviction and remanded for resentencing because (1) the trial court erred by imposing a full middle-term sentence on the domestic battery count; and (2) remand was necessary to allow the trial court to exercise its discretion whether to strike the firearm sentencing enhancements. At the resentencing hearing, the trial court stated it would not exercise its discretion to strike the firearm enhancements and sentenced defendant to a total prison term of 17 years four months, by imposing: (1) the middle term of four years on count 11 plus four years for the enhancement, consecutive; (2) one year (one-third the middle term) on count 2 plus one year and four months (one-third the four-year middle term) for the enhancement, consecutive; and (3) the middle term of three years on count 12 plus four years for the enhancement, consecutive. The court imposed concurrent sentences on all other charges and enhancements. Defendant appealed.
THE ABSTRACT OF JUDGMENT AND SUPPLEMENTAL BRIEFING
The original abstract of judgment issued following resentencing did not reflect the trial court's oral pronouncement of judgment with regard to the trial court's decision to strike the imposition of the restitution fine under Penal Code section 1202.4 (restitution fine) and certain assessments. We vacated submission of the matter and invited the parties to file supplemental briefs addressing the discrepancy. Defendant's appointed counsel filed a supplemental brief informing us that the superior court had issued an amended abstract of judgment which accurately reflects the court's striking of the restitution fine and assessments and provided us with a copy. On our own motion, we take judicial notice of the amended abstract of judgment filed in the trial court on February 19, 2020. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
The Attorney General filed a supplemental letter brief acknowledging that the amended abstract of judgment accurately reflects the oral pronouncement of judgment. The Attorney General also argues, however, that the trial court erred at resentencing by striking the $300 statutory minimum restitution fine under Penal Code section 1202.4 because no "compelling and extraordinary reasons" supported striking it within the meaning of Penal Code section 1202.4, subdivision (c). He now urges this court to further amend the amended abstract of judgment to show the imposition of the $300 minimum restitution fine.
The Attorney General did not appeal from the judgment and first raised this issue in the supplemental letter brief invited by this court after submission of the matter was vacated. The trial court cited defendant's indigency in striking the restitution fine; Penal Code section 1202.4, subdivision (c) provides that a defendant's inability to pay is not a compelling and extraordinary reason for the trial court to decline to impose the minimum restitution fine. Our record, however, is undeveloped on whether, in addition to indigency, the trial court would have exercised its discretion to find compelling and extraordinary reasons to strike the restitution fine.
In a case in which the trial court failed to impose, inter alia, a restitution fine under Penal Code section 1202.4 and failed to state on the record any reasons for not imposing those fines, the Supreme Court held that the People had waived any objection to the trial court's omission. (People v. Tillman (2000) 22 Cal.4th 300, 303.) We conclude that under the circumstances of this case, the People forfeited the right to challenge the trial court's act at the resentencing hearing of striking the imposition of any restitution fine.
ANALYSIS
In appointed counsel's Wende/Anders brief, counsel did not identify any potential issues to assist us in our independent review. We have reviewed the record in accordance with our obligations under Wende and Anders and find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.