Opinion
A154658
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS PEKARI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-180142-2)
A jury convicted defendant Thomas Pekari of a felony violation of Penal Code section 422 (criminal threats) and a misdemeanor violation of section 166, subdivision (a)(4) (contempt of written court order). On appeal, defendant contends there was insufficient evidence to convict him of the contempt charge. He also contends that the trial court violated his due process rights by imposing a restitution fine (§ 1202.4), court operations assessments (§ 1465.8), and criminal conviction assessments (Gov. Code, § 70373) without holding a hearing on his ability to pay. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
I. BACKGROUND
Miguel Bolanos (Bolanos) worked as a uniformed security guard at Atlantic Plaza Shopping Center (Atlantic Plaza), an outdoor shopping center that spans both sides of Atlantic Avenue in Pittsburg. He began working at Atlantic Plaza a month or two before Thanksgiving 2017, and his job included making rounds around the shopping center's perimeter on foot every 15 or 20 minutes. Before starting his rounds on foot, he also drove around the perimeter of Atlantic Plaza.
In the course of his employment, Bolanos met defendant. The first time that Bolanos met defendant at Atlantic Plaza, he introduced himself to defendant and they shook hands. Bolanos had contact with defendant every day that he worked at Atlantic Plaza. Defendant was friendly to Bolanos until the day Bolanos called the police after asking defendant to leave the premises due to defendant's yelling at customers. Thereafter, defendant acted aggressively toward Bolanos.
The offenses for which defendant was convicted stemmed from an incident on December 14, 2017, which was related to an incident on Thanksgiving of the same year.
A. November 23 , 2017
Upon seeing Bolanos patrolling the shopping center on Thanksgiving, defendant began yelling at him, saying things like, "Continue breathing now while you can, now that you are alive." Defendant threatened to kill Bolanos and his wife and rape his dog. He then threw rocks, some baseball-sized, at Bolanos. When Bolanos and another security guard, Miller, moved to subdue defendant, defendant made a motion toward Bolanos with a knife, although Bolanos did not see the blade out. Bolanos's partner used pepper spray on defendant, and he and Bolanos restrained defendant until police arrived.
Defendant was arrested and charged with felony violations of section 245, subdivision (a)(1) in case No. 5-172177-8. At his preliminary hearing, the court informed defendant that he would be released on his own recognizance with a stay-away order.
"THE COURT: I am prepared at this point to release Mr. Pekari on his own recognizance, with the understanding that he stay away from—what's the shopping center?
"[THE PROSECUTOR]: Plaza Shopping center. It's 2941 Railroad Avenue.
"THE COURT: Yes. You are also to stay away from the victims listed in the Complaint, Miguel Bolanos-Cruz and Zachary Miller. Obviously, Mr. Pekari, if you go near those individuals or near that shopping center, you are going to be in real trouble."
In the December 6, 2017 minute order from the preliminary hearing, the court checked the "stay-away" order box and indicated that defendant should stay away from "Plaza Shopping Ctr 2941 Railroad Ave, Miguel Cruz & Zachary Miller."
Bolanos was referred to as Miguel Cruz in the order. The trial court referred to him as Miguel Bolanos-Cruz in the preliminary hearing when instructing defendant to stay away. Bolanos identified himself as Miguel Bolanos at the trial.
B. December 14 , 2017
Bolanos drove to work on December 14, 2017. He entered the parking lot at Atlantic Plaza and drove around the perimeter of the shopping center before his rounds. While driving, he saw defendant at a bus stop on the sidewalk on the same side of Atlantic Avenue as the part of the shopping center where Bolanos worked, a few yards from Atlantic Plaza. Defendant saw Bolanos and said something like, "This motherfucker is back," from 12 to 19 feet away as Bolanos drove by.
Bolanos called the police, parked his car near a supermarket in Atlantic Plaza, and began his rounds on foot. His rounds took about seven minutes. When Bolanos completed his rounds and returned to the area where he first saw defendant, defendant was in the same spot he had been in, only a few yards from Atlantic Plaza on the same side of the street. Defendant started to yell and threaten Bolanos, and, after starting to threaten Bolanos, defendant crossed the street to the southern side of Atlantic Avenue. While defendant crossed the street and thereafter, he continued to yell threats at Bolanos. Defendant said that he would kill Bolanos, his wife, and his children, and rape his dog. After crossing the street, defendant was approximately 25 to 30 yards away from Bolanos but Bolanos could hear him because defendant was yelling loudly. Police arrived 15 to 20 minutes later and arrested defendant. When police arrived, defendant was across the street from Bolanos.
The district attorney charged defendant with making criminal threats in violation of section 422 and disobeying a court order in violation of section 166, subdivision (a)(4). The information initially alleged that defendant violated a court order requiring him to stay 100 yards away from Bolanos, but the court later struck the "100 yards" allegation upon the district attorney's motion. A jury found appellant guilty of both counts.
The information also alleged that defendant committed the section 422 violation while on bail within the meaning of section 12022.1, but the court later dismissed this allegation.
With respect to the section 166, subdivision (a)(4) violation, the court instructed the jury that the People must prove: "1. A court lawfully issued a written order that the defendant stay away from the Plaza shopping center, Miguel Bolanos-Cruz, and Zachary Miller; [¶] 2. The defendant knew about the court order and its contents; [¶] 3. The defendant had the ability to follow the court order; [¶] AND [¶] 4. The defendant willfully violated the court order. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] The People must prove that the defendant knew about the court order and that he had the opportunity to read the order or to otherwise become familiar with what it said. But the People do not have to prove that the defendant actually read the court order."
At the sentencing hearing, the trial court sentenced defendant in this case and in case No. 5-172177-8, in which defendant had been convicted after trial. It ordered defendant to serve three years of probation and suspended imposition of sentence. As a condition of probation, the trial court ordered defendant to serve one year in jail. In the case on appeal, the court imposed a restitution fine of $450, a court operations assessment of $80, and a criminal conviction assessment of $60. In case No. 5-172177-8, the court imposed a $150 restitution fine, a $40 court operations assessment, a $30 criminal conviction assessment, and the court ordered victim restitution of $250. Defendant timely filed a notice of appeal in this case.
II. DISCUSSION
A. Sufficiency of the Evidence
Under section 166, contempt of court constitutes a misdemeanor and includes "[w]illful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by any court, including orders pending trial." (§ 166, subd. (a)(4).) The jury convicted defendant under this statute for violating the terms of the December 6, 2017 stay-away order. Defendant argues on appeal that the stay-away order must be strictly interpreted. With respect to Bolanos, defendant argues that the order could only be violated if defendant approached Bolanos or did not move away after seeing Bolanos; and, with respect to Atlantic Plaza, the order could only be violated if defendant went to the part of the shopping center abutting Railroad Avenue. Defendant contends that insufficient evidence supports his conviction. As set forth below, we disagree.
Citing Butler v. Superior Court (1960) 178 Cal.App.2d 763, 765, defendant first contends that we must strictly construe the reach of the stay-away order. Butler involved a contempt proceeding in a civil case. Relying on the concept of "fair notice" that prohibits criminal punishment for violations of vague and ambiguous laws or court orders, Butler recites the rule that if a court order serving as the basis for contempt is ambiguous in any respect, it should be interpreted narrowly in favor of the defendant. (Butler, at p. 765; see also Brunton v. Superior Court (1942) 20 Cal.2d 202, 205 [a person cannot be held guilty of contempt for violating an injunction that is uncertain or ambiguous just as he may not be held guilty of violating a criminal statute that fails to give him adequate notice of the prohibited acts].)
The Attorney General does not directly address defendant's citation to Butler, but we need not further analyze this because, even if the stay-away order could only be violated if defendant approached Bolanos or failed to move away after he saw him, substantial evidence establishes a violation of section 166, subdivision (a)(4). (See People v. Tillotson (2007) 157 Cal.App.4th 517, 534 [reviewing a conviction under section 166, subdivision (a)(4) for substantial evidence]; People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 5 [same].)
We note that defendant does not argue that the stay-away order was void because it was unconstitutionally vague.
Defendant asserts that he moved away from Bolanos after Bolanos approached defendant in his car "as required by the court order," but the evidence does not support this assertion. Defendant had encountered Bolanos at Atlantic Plaza many times before the December 2017 incident and knew Bolanos worked there as a security guard. On December 14, 2017, while defendant was only a few yards from the northern part of Atlantic Plaza, on the sidewalk abutting the Atlantic Plaza parking lot, defendant saw Bolanos patrolling the shopping center's perimeter in his car from approximately 12 to 19 feet away, and said something like, "this motherfucker is back." Bolanos went to park and patrolled the shopping center on foot for about seven minutes, yet defendant did not move from his spot. When Bolanos returned on foot to the area where he had first seen defendant, defendant began yelling at and threatening Bolanos. Only after defendant started threatening Bolanos did defendant cross the street. Substantial evidence thus supports the criminal contempt conviction, even under defendant's strict construction of the statute, in that defendant did not immediately remove himself upon seeing Bolanos, and instead stayed where he was on the sidewalk abutting Bolanos's workplace and began threatening him.
Having found the evidence sufficient to establish a violation of the stay-away order with respect to Bolanos, we need not address defendant's argument that there was insufficient evidence that he violated the order that he stay away from "Plaza Shopping Ctr 2941 Railroad Avenue" because the prosecution failed to present evidence that he went to Railroad Avenue. We simply note that regardless of the specific address set forth on the order, the evidence demonstrates that defendant was on both sides of Atlantic Avenue, the thoroughfare that bisects the northern and southern halves of Atlantic Plaza.
B. Fines and Fees
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues that the court erred in imposing various fines and fees without first determining whether he had the ability to pay them.
Relying on the principle that "a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty," Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" fines and assessments. (Duenas, supra, 30 Cal.App.5th at pp. 1164, 1166.) The facts presented in Dueñas were unusually compelling. Dueñas was an unemployed, homeless woman with cerebral palsy who supported her two children while living on public aid. (Id. at pp. 1160-1161.) She lost her driver's license because she could not afford to pay her juvenile citations, then acquired three misdemeanor convictions for driving without a license because the accumulating criminal assessments and fines prevented her from recovering her license. (Id. at p. 1161.) "Key to the [Dueñas] holding was its concern for 'the cascading consequences of imposing fines and assessments that a defendant cannot pay,' which '[t]he record in [Dueñas] illustrates.' " (People v. Caceres (2019) 39 Cal.App.5th 917, 924.)
Our Supreme Court has granted review to resolve the question of whether a trial court must hold a hearing on the defendant's ability to pay before imposing fines or fees, and if so, which party bears the burden regarding defendant's ability to pay. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
The Attorney General argues that defendant forfeited this challenge on appeal because he failed to raise his inability to pay in the trial court, and further contends that Dueñas was wrongly decided. Assuming for purposes of this appeal that defendant did not forfeit this challenge and that the trial court erred when it assessed fines and fees without first determining defendant's ability to pay, any potential error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [applying Chapman to determine that Dueñas error was harmless]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same].)
Appellate courts are divided as to whether such challenges are forfeited by the defendant's failure to raise them in the trial court prior to issuance of Dueñas. (Compare, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 488-489 [challenge not forfeited where minimum statutory fines and fees imposed]; People v. Johnson, supra, 35 Cal.App.5th at p. 138 [same] with People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 [challenge forfeited where maximum statutory restitution fine imposed]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [challenge forfeited]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same].) --------
"[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine" or other fees imposed by the trial court. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) " Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; see also People v. Staley (1992) 10 Cal.App.4th 782, 783 [when the trial court considers ability to pay fines or fees, its determination may be made based on the person's ability to earn where he or she has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed].)
Defendant was 57 at the time of his sentencing and received a $531.50 monthly pension. He had worked all of his life, most frequently in warehousing and forklifting, he was looking for employment prior to his incarceration, and he intended to seek employment actively thereafter. Defendant had no substance abuse problems or health concerns. His counsel told the court that defendant "is able-bodied, ready, willing, and able to seek out work." Counsel also stated that defendant's pension had accrued while defendant was in custody, so defendant had some money saved up.
The record does show that within the year prior to his arrest, defendant fell into homelessness and received a food allowance benefit. He had lived with his brother and sister, but his brother passed away and his sister moved, and defendant was unable to maintain the residence. Defendant did not have stable housing in place for when he was released. However, some of his children and siblings lived locally, and defendant's counsel informed the court that he had helped defendant get back in touch with his family so that defendant had family resources and support that he did not have prior to incarceration. Defendant believed he would be able to stay with his daughters who lived locally (although he preferred to live on his own because his grandchild had special needs and he did not want to burden the family).
Thus, unlike the defendant in Dueñas, here defendant did not suffer from health impairments that rendered him unable to work. Further, because defendant had to serve a year in county jail as a condition of probation, his pension would accrue while he remained in custody. Thereafter, he anticipated having family support to find housing, he would continue receiving a monthly pension, and he had three years to pay off the $590 in fines and fees challenged in this case. In light of this record demonstrating defendant's income and earning ability, any error in failing to hold an ability-to-pay hearing was harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.