Opinion
A157600
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DARREN MICHAEL PETERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 18CR000478)
Pursuant to a plea agreement, defendant Darren Michael Peters pleaded no contest to five counts of making criminal threats (Pen. Code, § 422), and the trial court sentenced him to a prison term of 16 years four months and imposed several fines and fees. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the sole issue he raises on appeal is that the court assertedly violated his due process rights by imposing fees and fines without determining his ability to pay them. We affirm.
Defendant's notice of appeal challenged the validity of his plea, as well as matters arising after the plea, including that he had received ineffective assistance of counsel. The superior court granted a certificate of probable cause. None of these issues are raised in defendant's opening brief and are therefore waived. (People v. Caceres (2019) 39 Cal.App.5th 917, 923 (Caceres) [issues not raised in opening brief are waived], citing People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12 [same].)
BACKGROUND
As defendant pleaded no contest, the facts are taken from defendant's probation report.
From July 5 through August 14, 2017, defendant, who was serving a six-year prison term for an underlying conviction of attempted robbery, conspiracy to commit robbery, and assault with a deadly weapon, sent a letter to the district attorney's office, threatening several individuals and their family members. The recipients included the deputy district attorney, law enforcement officials, and the victim involved in his underlying conviction. The letter was marked " 'Confidential Legal Mail' " to ensure it reached the intended victims, and "described the torture with which he planned to harm" his intended victims, including watching the prosecutor and his family "placed in a 'reverse human centipede' and putting '6 inch thick wooden poles in the bitches pussies,' " and microwaving a victim's heart and " 'serv[ing] it at the table.' "
San Quentin prison officials stated that mail marked as " 'Confidential Legal Mail' " "indicates the contents are privileged communications" and renders them "free from search or interception by prison staff."
When two district attorney investigators interviewed defendant, he stated he had posttraumatic stress disorder, bi-polar disorder, ADHD, and oppositional defiant disorder. However, he maintained he was taking his medication regularly, and was having a " 'perfect' day" and "felt 'completely in control' when he wrote the letter and 'knew exactly' what he had done."
In a second letter, sent to the district attorney after the investigators had visited him, he stated he was "not afraid of an investigator" and that the investigator was " 'now on the hit list' as well as 'that cunt' " (referring to the district attorney). Defendant then provided his "full list of his intended victims." Besides the people involved in his underlying conviction, the list now included the district attorney, who had prosecuted defendant's father (also serving a prison sentence) and who defendant suggested "he would commit a felonious sex act against."
Defendant was charged by a first amended complaint with 20 counts of making criminal threats and five counts of attempted making criminal threats against at least 15 victims. The complaint also alleged defendant had suffered three prior convictions for attempted robbery, conspiracy to commit robbery, and assault with a deadly weapon, which also qualified as strikes.
Pursuant to an agreement, defendant pleaded no contest to five counts of making a criminal threat, and the remaining counts were dismissed. He also admitted his prior convictions and one strike. The trial court sentenced defendant to 16 years four months in the criminal threat case and one year in another case, for a total sentence of 17 years four months to be served consecutively to that in his underlying conviction.
The probation officer's report recommended the court impose a $200 court security fee, a $150 criminal conviction assessment (Gov. Code, § 70373), a $560 presentence report fee (Pen. Code, § 1203.1b), a $1,200 restitution fine (Id., § 1202.4, subd. (b)(2)), a $1,200 fine suspended unless parole is revoked, and restitution to the victim. Before the court imposed the fines and fees, defense counsel stated, "I do wish to interpose an objection to the fines and fees that probation recommends based on the Due[ñ]as case. I believe you can impose the fees, but you must stay their execution." The trial court never addressed the objection and there was no argument heard on that issue.
The court ultimately imposed the $200 court security fee, the $150 criminal conviction assessment, waived the presentence report fee "in the interests of justice," set the restitution and parole revocation fines at $300 each, ordered restitution to the victim to be determined by the probation officer and the court, ordered defendant to provide certain samples and specimens pursuant to Penal Code section 296, and waived attorney fees.
DISCUSSION
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant asserts the trial court violated his due process rights by imposing the restitution fine, conviction assessment and court security fee when he "does not have the ability to pay them." (Boldface omitted.)
We need not, and do not, address the merits of defendant's due process claim, as the record demonstrates there was no prejudicial error. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-1077 [rejecting Dueñas claim where, although no ability to pay hearing was held, record showed any error was harmless]; see also People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 (Johnson) [any error was harmless because lengthy sentence meant defendant would have the ability to earn prison wages, and the amount of fees did not saddle the defendant with a "financial burden anything like the inescapable, government-imposed debt-trap" the defendant in Dueñas faced].)
We therefore also need not, and do not, address the Attorney General's assertion that the "proper analytic framework" for analyzing the constitutionality of criminal fines and fees is "that of the excessive fines clause of the Eight Amendment," rather than the due process principles Dueñas used.
In Dueñas, the defendant was an unemployed, chronically-ill homeless woman with cerebral palsy and limited education who supported her two children with public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She had lost her driver's license because of her inability to pay her juvenile citations and then had acquired three misdemeanor convictions for driving without a license because the accumulating fines and fees prevented her from clearing the citations and recovering her license. (Id. at p. 1161.) She experienced a series of "cascading consequences" because of "a series of criminal proceedings driven by, and contributing to, [her] poverty," and she had already been ordered to pay the charges by the end of her probation period. (Id. at pp. 1163-1164.)
Defendant claims that "given his mental health issues and the paltry wages earned by prison inmates, there is no guarantee [he] will be able to pay off his fines and fees." Additionally, he asserts that because the trial court waived both the fee for the presentence report and attorney fees, this shows his ability to pay "was at least limited."
Although defendant suffers from posttraumatic stress disorder, bi-polar disorder, ADHD, and oppositional defiant disorder, he admitted taking his medication regularly. And while defendant had no employment history, he had graduated from high school and had been taking college courses in prison. He is in his twenties, and besides suffering from knee pain in the past, he appears to be able-bodied and able to work. Finally, defendant was sentenced to a lengthy prison term of 17 years four months. It can be inferred this would be a sufficient time period to cover the fines and fees which will be deducted from his prison wages. Indeed, defense counsel notes the "current rates of pay for work performed by prison inmates range from $12 per month to $56 per month," so that "even assuming [defendant] earns the highest rate of $56 per month, the amount deducted for credit against his fines" would mean it would take him "over 29 months of working," and if he made the minimum rate it would take him "over 135 months to pay off the fines and fees." These timeframes are well within defendant's prison sentence. (Johnson, supra, 35 Cal.App.5th at pp. 139-140 [distinguishing Dueñas and noting that, given the defendant's lengthy prison term, the court could consider his "ability to earn prison wages over a sustained period" when imposing certain statutory fees and assessments]; see People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel, yet have the 'ability to pay' a restitution fine."].)
Finally, unlike the defendant in Dueñas who suffered a series of "cascading consequences" because of "a series of criminal proceedings driven by, and contributing to, [her] poverty" (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164), here, defendant made a series of criminal threats. His crimes were not driven by his poverty nor were they likely to contribute to it "such that [he will be] trapped in a 'cycle of repeated violations and escalating debt.' " (Caceres, supra, 39 Cal.App.5th at p. 928.)
Thus, the record indicates that the total amount of the restitution and other fines and assessments will not constitute a financial burden or hardship anything like the debt imposed in Dueñas. In short, any error was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.