People v. Lopez-Vinck

Filed 9/15/21
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077029
Plaintiff and Respondent,
v. (Super. Ct. No. SCS304526-02)
ALFRED LOPEZ-VINCK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Roderick W. Shelton, Judge. Remanded for correction of minute order and
abstract of judgment; judgment affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts II and III.A–D.
I.
INTRODUCTION
Defendant Alfred Lopez-Vinck appeals from a judgment entered after a
jury convicted him of three counts of robbery and three counts of assault with
a deadly weapon. Lopez-Vinck and his girlfriend and co-defendant Misty
Lynn Probert were both convicted of charges arising from an incident in
which Probert shoplifted various items from a Kohl’s store. After Probert
exited the store and was approached by three loss prevention officers, Lopez-
Vinck, got out of his vehicle, took out a knife, pointed it in the direction of the
loss prevention officers, and moved toward them while aggressively yelling at
them to back up. Probert walked past the loss prevention officers while still
in possession of the stolen merchandise, got into Lopez-Vinck’s car, and the
two drove off together.
On appeal, Lopez-Vinck contends that there is insufficient evidence to
support his convictions for assault with a deadly weapon, arguing that he did
not engage in any act that was likely to cause injury and he did not have the
present ability to injure anyone.1
Lopez-Vinck also argues that his convictions for assault with a deadly
weapon must be modified to convictions for the lesser offense of brandishing
because, he asserts, brandishing is a more specific statute that applies to his
conduct and preempts the assault statute.
In addition, Lopez-Vinck contends that the trial court erred, and
violated his right to due process, by imposing various fines and fees without
1 Probert was tried jointly with Lopez-Vinck and was convicted of three
counts of robbery. Probert separately appealed from the judgment, and this
court affirmed. (See People v. Probert (Oct. 15, 2020, D075716) [nonpub.
opn.].)
2
first finding that he had the ability to pay them. Finally, he asserts that the
minute order and abstract of judgment must be corrected to reflect the court’s
oral pronouncement with respect to striking his prison prior.
We conclude that only Lopez-Vinck’s final contention has merit. We
therefore remand for the trial court to correct the minute order and abstract
of judgment to reflect that the court struck Lopez-Vinck’s prison prior. We
also conclude that a recent ameliorative amendment to the law entitles
Lopez-Vinck to have vacated any portion of the fee imposed pursuant to
Government Code section 29550.1 that remained unpaid as of July 1, 2021.
We therefore vacate the unpaid balance of this fee, and otherwise affirm the
judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution
On the afternoon of September 21, 2018, Probert entered a Kohl’s
department store. Kohl’s loss prevention officer Lisa H. noticed Probert
exhibiting behavior consistent with shoplifting, so she began to monitor
Probert as she walked through the store. Lisa H. observed Probert walk to
the juniors’ department, quickly grab five pairs of jeans without looking at
the prices, enter a fitting room and emerge a few minutes later holding only
her purse and one pair of jeans. Lisa H. communicated with another loss
prevention officer, Jenny R., regarding Probert. When Jenny R. checked the
fitting room that Probert had used, she found that three, not four, pairs of
jeans had been left there. After Probert left the fitting room area, she went to
the girls’ department, where she took a decorative bow and clipped it onto her
jacket. While in the girls’ department, Probert put a pair of children’s green
3
shorts inside her purse; at some point, she picked up a pair of pink shorts,
which she added to items that she was holding in her hands.
Probert eventually headed toward the store’s registers. She walked up
to a register and paid for the pair of pink shorts. She did not pay for the bow
that she had affixed to her jacket, nor did she pay for the items that she had
concealed in her purse.
As soon as Probert walked out of the store, three loss prevention
officers approached her. Loss prevention officer Hector H. introduced
himself, showed Probert his employee badge, and informed her that he
“ ‘work[s] for Kohl’s loss prevention.’ ” He told Probert that he wanted to talk
to her inside the loss prevention office in the store. Probert was
“dismiss[ive]” of the loss prevention officers and tried to continue walking
past them while they were talking to her. The loss prevention officers had
arranged themselves in such a way as to create a “human barrier” in an
attempt to prevent Probert from passing them, and requested that Probert
give them the items that she had taken from the store. They did not
threaten, raise their voices at, or make any physical contact with Probert.
Lopez-Vinck had pulled up in his car in front of the store, and jumped
out of the car when the loss prevention officers confronted Probert. He was
holding a pocketknife that had a three-inch blade exposed. Lopez-Vinck
walked toward the loss prevention officers. He appeared “very aggressive”
and yelled, ‘‘ ‘Back the fuck up.’ ” Lopez-Vinck was holding the knife with one
hand. The knife blade was pointed in the general direction of the loss
prevention officers. Lopez-Vinck moved toward the loss prevention officers.
The loss prevention officers estimated that Lopez-Vinck came within about
6 to 15 feet of them. The loss prevention officers, who had been standing
between Probert and Lopez-Vinck’s car, immediately moved out of Probert’s
4
way in fear. Probert made her way directly to Lopez-Vinck’s car and said
nothing. As Probert was walking to the car, the loss prevention officers asked
her to “[a]t least give us our stuff back.” Probert continued to ignore the loss
prevention officers, and got into the car while still in possession of the stolen
items. Lopez-Vinck did not say anything to Probert as he held the knife and
Probert walked past him.
After Probert got into the car, Lopez-Vinck remained outside the car for
another 30 seconds, “puff[ing] his chest” and yelling at the loss prevention
officers, still holding the knife in his hand but backing up slightly. Hector
said to Lopez-Vinck, “[I]t’s just merchandise . . . [s]he should just give it back.
[¶] . . . [¶] . . . [I]t’s not that serious . . . it doesn’t have to be like that. If you
could just cooperate.” Hector asked Lopez-Vinck, “Why make it a big deal?”
Lopez-Vinck got back into his car and drove off with Probert and the stolen
merchandise.
2. The defense case
Lopez-Vinck testified in his own defense. According to Lopez-Vinck, he
had no idea that Probert had stolen anything from the store; rather, he said
that he believed that the loss prevention officers, who were dressed in
plainclothes, were trying to mug Probert as she exited the store.
Lopez-Vinck testified that, on the day these events took place, he and
Probert had stopped at Kohl’s to buy a change of clothes for their young
daughter, who had wet herself in her car seat. Probert went inside the store,
and Lopez-Vinck stayed in the car with their daughter. After about
30 minutes, Lopez-Vinck pulled out of his parking spot and drove toward the
front entrance to the store. Lopez-Vinck said that he had assumed that
Probert would be coming out of the store at around that time. He waited for
her in front of the store with the car running.
5
Lopez-Vinck testified that a few minutes after he drove to the front of
the store, Probert walked out of the store and was immediately confronted by
two individuals, one male and one female, who were dressed in black. The
pair blocked Probert’s path. Lopez-Vinck said that he saw “the boy” reach for
the Kohl’s bag that Probert was holding. A third individual “came out of
nowhere” and blocked Lopez-Vinck’s view of Probert. Lopez-Vinck testified
that he thought that Probert was being mugged. He grabbed his pocketknife
from the compartment in the passenger side door and got out of the car.
Lopez-Vinck approached the individuals who were standing between Probert
and the vehicle and told them to “ ‘[b]ack the fuck up’ ” while he held the
knife “up in the air.” The individuals backed away at that point.
As soon as the individuals scattered, Probert walked to the car and got
in while Lopez-Vinck remained outside of the car for another 30 seconds,
yelling at the individuals because they “were still coming toward [him].”
Lopez-Vinck acknowledged that he did not call 911 during the incident.
Once Lopez-Vinck returned to the car and he and Probert began driving
away, he asked Probert who those people were and what they were talking
about. According to Lopez-Vinck, Probert told him that those individuals
worked for Kohl’s and thought that she had stolen something from the store.
Probert denied having stolen anything. Lopez-Vinck said that he stopped the
car and had Probert empty her purse, pockets, and the Kohl’s bag to prove to
him that she had not stolen anything. Lopez-Vinck testified that Probert
showed him the receipt for the pink shorts, and that he did not see any stolen
items.
Lopez-Vinck testified that he did not learn that Probert had actually
shoplifted merchandise from Kohl’s until he was interviewed by a detective
weeks after the incident. During that interview, after being told that Probert
6
had in fact shoplifted some items, Lopez-Vinck told the detective that he had
forced Probert to go into the store by holding a gun to her head and
threatening to cut her throat if she did not go inside. At trial, Lopez-Vinck
claimed that he had not actually threatened Probert, despite what he had
told the detective, and indicated that he had lied to the detective in order to
protect Probert.
B. Procedural background
The San Diego District Attorney charged both Probert and Lopez-Vinck
with three counts of robbery (Pen. Code,2 § 211; counts 1–3), and also charged
Lopez-Vinck with three counts of assault with a deadly weapon (§ 245, subd.
(a)(1); counts 4–6). With respect to the robbery counts, the information
alleged that Lopez-Vinck personally used a deadly and dangerous weapon—a
knife— in the commission of the offenses.3 The information also alleged that
Lopez-Vinck had suffered two prior felony convictions (§ 1203, subd. (e)(4))
and one prison prior (§§ 667.5, subd. (b), 668).
After a joint trial, a jury found Lopez-Vinck guilty on all of the charges,
and found true all of the related personal use enhancement allegations.
Lopez-Vinck admitted that he had two prior felony convictions and a prison
prior.
2 Further statutory references are to the Penal Code unless otherwise
indicated.
3 The information also included a personal use of a deadly weapon
allegation in connection with count 6, one of the assault counts. However,
that allegation was dismissed and the jury was not asked to determine the
truth of that allegation.
7
At sentencing, the trial court sentenced Lopez-Vinck to three years in
state prison. Lopez-Vinck filed a notice of appeal, which this court deemed
timely.
III.
DISCUSSION
A. Substantial evidence supports Lopez-Vinck’s convictions for assault with
a deadly weapon
Lopez-Vinck contends that there is insufficient evidence to support a
finding that his conduct satisfied all of the elements of the offense of assault
with a deadly weapon. Specifically, Lopez-Vinck claims that he did not
commit an act that would directly and probably cause injury, and he further
contends that, given the distance between him and the loss prevention
officers, he lacked the present ability to inflict injury on any of them.
“The crime of assault with a deadly weapon has two components:
‘(1) the assault, and (2) the means by which the assault is committed.’ ” (In re
Raymundo M. (2020) 52 Cal.App.5th 78, 85 (Raymundo M.).) “An assault is
an unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another.” (§ 240.) To commit an assault, the
defendant must attempt an act that, if successful, “ ‘will probably and directly
result in injury to another.’ ” (People v. Wyatt (2010) 48 Cal.4th 776, 780
(Wyatt).) The attempted act must be coupled with a present ability to commit
a violent injury, that is, the defendant must have “ ‘attained the means and
location to strike immediately.’ ” (People v. Chance (2008) 44 Cal.4th 1164,
1168 (Chance).) “In this context, however, ‘immediately’ does not mean
‘instantaneously.’ It simply means that the defendant must have the ability
to inflict injury on the present occasion.” (Ibid., fn. omitted.) Thus,
immediacy means that the defendant has “equip[ped] and position[ed]
8
himself to carry out a battery . . . , even if some steps remain to be taken, and
even if the victim or the surrounding circumstances thwart the infliction of
injury.” (Id. at p. 1172.) “Numerous California cases establish that an
assault may be committed even if the defendant is several steps away from
actually inflicting injury, or if the victim is in a protected position so that
injury would not be ‘immediate,’ in the strictest sense of that term.” (Id. at
p. 1168.) Finally, “[a]s used in section 245, subdivision (a)(1), a ‘deadly
weapon’ is ‘any object, instrument, or weapon which is used in such a manner
as to be capable of producing and likely to produce, death or great bodily
injury.’ ” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 (Aguilar).)
Lopez-Vinck contends that the evidence is insufficient to support his
conviction for assault with a deadly weapon because he did not commit any
act likely to inflict injury on the loss prevention officers and because he
lacked the present ability to commit an injury, given that he was several feet
away from them. “In determining whether the evidence is sufficient to
support a conviction . . . , ‘the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.’ [Citations.] Under this standard, ‘an appellate court in a criminal
case . . . does not ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’ [Citation.] Rather, the
reviewing court ‘must 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. Vy (2004) 122 Cal.App.4th 1209, 1224, italics
omitted.)
9
With respect to Lopez-Vinck’s contention that the evidence does not
support a finding that he engaged in an act that was likely to result in injury,
viewing the evidence in the light most favorable to the verdict, the evidence
demonstrates that Lopez-Vinck displayed a knife with an exposed blade while
he was within six to fifteen feet of the three loss prevention officers. Lopez-
Vinck raised the knife to shoulder or head height with the blade pointing
toward the loss prevention officers, assumed an aggressive posture and yelled
at the loss prevention officers to “ ‘[b]ack the fuck up.’ ” He was moving
toward the loss prevention officers while holding the knife in this manner.
As Lopez-Vinck approached the loss prevention officers, they backed away in
fear. This evidence demonstrates that Lopez-Vinck was signaling that he
was ready to, and could, strike at the loss prevention officers, and is sufficient
to support the jury’s finding that Lopez-Vinck engaged in an act that, if it had
been successful, would “ ‘probably and directly result in injury to another.’ ”
(Wyatt, supra, 48 Cal.4th at p. 780.)
These factual circumstances are similar to the facts in People v. Yslas
(1865) 27 Cal. 630 (Yslas). In Yslas, the defendant approached to within
seven or eight feet of the victim with a raised hatchet in his hand. The victim
escaped any injury by running to the next room and locking the door. (Id. at
p. 631.) As the Supreme Court has noted, the defendant in Yslas “committed
assault, even though he never closed the distance between himself and the
victim, or swung the hatchet.” (Chance, supra, 44 Cal.4th at p. 1174, citing
Yslas, supra, 27 Cal. at pp. 631, 633–634, italics added.) In this case,
although Lopez-Vinck did not reach any of the loss prevention officers, he
moved toward them, knife raised, and, viewing the evidence in the light most
favorable to the verdict, came within six feet of them; they retreated in order
to escape him. This is sufficient to support a finding that Lopez-Vinck
10
committed an assault. (See, e.g., Chance, supra, at p. 1168 [“[A]n assault
may be committed even if the defendant is several steps away from actually
inflicting injury”]; Aguilar, supra, 16 Cal.4th at p. 1028 [“One may commit an
assault without making actual physical contact with the person of the
victim”]; Raymundo M., supra, 52 Cal.App.5th at pp. 82–83, 87–88 [juvenile’s
act of lunging and running toward the victim from 10 to 12 feet away, rather
than “merely brandish[ing] the knife while standing still,” supported
reasonable finding that the juvenile “actually used the knife in a way capable
of producing, and likely to produce, death or great bodily injury”].)
The sufficiency of the evidence is not undermined by the fact that the
testimony did not establish that Lopez-Vinck “swung, jabbed, or deployed
the knife in any way,” as Lopez-Vinck contends. The juvenile in Raymundo
M. made a similar argument for reversal of the true finding that he had
committed an assault with a deadly weapon. (Raymundo M., supra,
52 Cal.App.5th at p. 89.) The Raymundo court explained, “[C]ourts have
held that an assault with a deadly weapon can occur even when the
defendant never swings the weapon.” (Ibid., citing Yslas, supra, 27 Cal. at
pp. 631, 633–634; Chance, supra, 44 Cal.4th at p. 1174; People v. Bernal
(2019) 42 Cal.App.5th 1160, 1168 [affirming conviction for assault with a
deadly weapon where the defendant held up a knife to the victim and asked,
“ ‘Do you want to do this?’ ”].)
This same evidence constitutes substantial evidence that Lopez-Vinck
had the present ability to cause injury. After emerging from the car, Lopez-
Vinck started to close the distance between himself and the loss prevention
officers, walking toward them in a menacing manner and coming as close as
six feet from them. Again, the “present ability” element “is satisfied when ‘a
defendant has attained the means and location to strike immediately’ ” and
11
for this purpose, “ ‘immediately’ . . . simply means that the defendant must
have the ability to inflict injury on the present occasion.” (Chance, supra,44 Cal.4th at p. 1168.) Thus, “present ability” may exist “even if the
defendant is several steps away from actually inflicting injury, or if the
victim is in a protected position so that injury would not be ‘immediate,’ in
the strictest sense of that term.” (Ibid.) The fact that the loss prevention
officers backed away from Lopez-Vinck, and thereby maintained some
distance between themselves and him, does not mean that Lopez-Vinck
lacked the present ability to cause injury. (See, e.g. In re B.M. (2018)
6 Cal.5th 528, 537 [“[A]n aggressor should not receive the benefit of a
potential victim fortuitously taking a defensive measure or being removed
from harm’s way once an assault is already underway”].)
In sum, the jurors could have reasonably concluded that Lopez-Vinck’s
conduct in raising a knife in a striking position, approaching the victims with
the knife pointed toward them, and yelling at them to “back the fuck up”
while maintaining an aggressive stance and closing the distance between
them, causing the victims to back away to escape his approach, constituted
the commission of an assault with a deadly weapon.
B. The Williamson rule does not require that Lopez-Vinck’s assault
convictions be modified to the lesser offense of brandishing
Lopez-Vinck contends that, in the event that this court rejects his
sufficiency of the evidence argument, his assault with a deadly weapon
convictions must nonetheless be reversed and modified to the misdemeanor
offense of brandishing a deadly weapon. Lopez-Vinck claims that the conduct
constituting the offense of assault with a deadly weapon is prohibited under
the more “specific” offense of brandishing, which carries a less severe penalty,
and that the brandishing statute therefore controls. Lopez-Vinck’s argument
12
is “premised on a doctrine often referred to as the Williamson rule, based on
[the Supreme Court’s] decision in In re Williamson (1954) 43 Cal.2d 651, 654
(Williamson). Under the Williamson rule, if a general statute includes the
same conduct as a special statute, the court infers that the Legislature
intended that conduct to be prosecuted exclusively under the special statute.
In effect, the special statute is interpreted as creating an exception to the
general statute for conduct that otherwise could be prosecuted under either
statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86.) “[T]he Williamson
preemption rule is applicable (1) when each element of the general statute
corresponds to an element on the face of the special statute, or (2) when it
appears from the statutory context that a violation of the special statute will
necessarily or commonly result in a violation of the general statute.” (People
v. Watson (1981) 30 Cal.3d 290, 295–296 (Watson).) It is clear that the
Williamson rule does not apply when “a felony statute requires a more
culpable mental state than a misdemeanor statute proscribing the same
behavior.” (Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1007.)
“In Williamson, for example, the defendant was convicted under the
general conspiracy statute, Penal Code section 182, of conspiring to commit
the crime of contracting without a license in violation of section 7028 of the
Business and Professions Code. A violation of Penal Code section 182 was
punishable as either a misdemeanor or a felony. The defendant argued that
his conduct was punishable only under a special statute, Business and
Professions Code former section 7030 [citation], which made it a
misdemeanor to ‘conspire[ ] with another person to violate any of the
provisions of this chapter.’ Th[e Supreme Court] agreed. [The Supreme
Court] explained, ‘To conclude that the punishment for the violation of
section 7030 of the Business and Professions Code is stated in section 182 of
13
the Penal Code, which deals with conspiracies in general, would be
inconsistent with the designation of the particular conspiracy as a
misdemeanor.’ (Williamson, supra, 43 Cal.2d at p. 655; see also People v.
Gilbert, supra, 1 Cal.3d at p. 481 [prosecution for theft barred by special
statute prohibiting use of false statement to obtain welfare, because ‘any
conduct which violated [the welfare fraud statute] would also constitute a
violation of the theft provision of the Penal Code’].)” (People v. Murphy (2011)
52 Cal.4th 81, 86–87.)
Setting aside the open question of whether a challenge made pursuant
to Williamson may be forfeited given Lopez-Vinck’s failure to raise this issue
in the trial court, we conclude that Lopez-Vinck’s contention fails on its
merits.4 With respect to the question whether the elements of the “general
statute” correspond to the elements of the “special statute” (Watson, supra,
30 Cal.3d at pp. 295–296), we conclude that they do not. Lopez-Vinck
contends that the “general statute” in this situation is section 245,
subdivision (a), the statute outlining the offense of assault with a deadly
weapon, while the “special statute” is section 417, the statute outlining the
offense of brandishing. Section 245, subdivision (a) prohibits an “assault
upon the person of another with a deadly weapon or instrument other than a
firearm.” As we have noted, an “assault” is defined as “an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of
another.” (§ 240.) Section 417, subdivision (a) provides that “[e]very person
who, except in self-defense, in the presence of any other person, draws or
exhibits any deadly weapon whatsoever, other than a firearm, in a rude,
4 The People assert that this contention has been forfeited, but concede
that there remains an open question whether a challenge based on the
Williamson rule can be forfeited.
14
angry, or threatening manner, or who in any manner, unlawfully uses a
deadly weapon other than a firearm in any fight or quarrel is guilty of a
misdemeanor . . . .” It is clear from an examination of the elements of these
two offenses that their elements do not correspond. (See People v. Escarcega
(1974) 43 Cal.App.3d 391, 398 [“Obviously an assault with a deadly weapon
may be perpetrated without drawing or exhibiting [the deadly weapon] in a
rude, angry, or threatening manner, or using it in a fight or quarrel”]; see
also People v. Torres (1957) 151 Cal.App.2d 542, 544–545 [“An assault with a
deadly weapon can be committed without violating any provision of Penal
Code, section 417, as by firing a gun through a coat pocket without either
drawing or exhibiting the weapon and without then being engaged in a fight
or quarrel”].)
With respect to the second test—i.e., whether “it appears from the
statutory context that a violation of the special statute will necessarily or
commonly result in a violation of the general statute” (Watson, supra,
30 Cal.3d at pp. 295–296)—we conclude that this test also is not met. Again,
the question is whether, if one commits a brandishing, that individual will
necessarily or commonly also violate Penal Code section 245. We cannot say
that the commission of a brandishing will necessarily or commonly result in
an assault with a deadly weapon. Brandishing and assault with a deadly
weapon are two different offenses, with different elements that overlap only
in certain situations. There are numerous possible scenarios in which a
person could exhibit a deadly weapon in a rude or threatening manner
without also attempting to commit a violent injury on another person with
the weapon while having the present ability to inflict injury. We therefore
reject Lopez-Vinck’s contention that his conviction for assault with a deadly
weapon, which was based on evidence demonstrating that he aggressively
15
moved toward the loss prevention officers, holding a knife in his hand and
pointing it at the victims while also verbally threatening them, must be
reduced to a conviction for mere brandishing. The Legislature did not intend
such conduct to be prosecuted exclusively under Penal Code section 417; we
will therefore not modify Lopez-Vinck’s convictions for felony assault with a
deadly weapon to misdemeanor brandishing.
C. Fines and fees
Lopez-Vinck contends that the trial court violated his federal and state
constitutional rights by imposing various fines and fees without first
determining, under the authority announced in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), that Lopez-Vinck had the ability to pay those
fines and fees.
1. Additional background
At the sentencing hearing, which occurred on March 7, 2019, the court
imposed a $2,000 restitution fine under Penal Code section 1202.4,
subdivision (b), a $2,000 parole revocation fine under Penal Code section
1202.45, a $240 court operations assessment under Penal Code section
1465.8, a $180 criminal conviction assessment under Government Code
section 70373, a $154 criminal justice administration fee under former
Government Code section 29550.1, a $39 theft fine under Penal Code section
1202.5, and $72.99 in victim restitution to Kohl’s pursuant to Penal Code
section 1202.4, subdivision (f). The court made no determination that Lopez-
Vinck had the ability to pay these fines and fees, and Lopez-Vinck did not
request that such a finding be made.
At the time of sentencing, Lopez-Vinck was 28 years old. The probation
report indicates that Lopez-Vinck graduated from high school in 2006 while
incarcerated in a California Youth Authority facility. He has since been
16
employed at warehouses, in sales, and at fast food restaurants. Lopez-Vinck
denied having assets or debts; prior to his arrest, he was receiving $300 per
month in general relief and $200 per month in food stamps. The probation
report does not identify any condition that would prohibit Lopez-Vinck from
working.
2. This contention has been forfeited
Preliminarily, the People argue that Lopez-Vinck has forfeited his
claim of error because his sentencing hearing took place on March 7, 2019,
which was after the opinion in Dueñas was issued in January 2019.
We agree that Lopez-Vinck has forfeited his contention under Dueñas.
In general, a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees, and
assessments on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862,
864; People v. Trujillo (2015) 60 Cal.4th 850, 853–854; see also People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153–1155.) This is particularly so in a case such as
this one, where the sentencing occurred after the Dueñas court declared a
constitutional right to have a court determine the defendant’s ability to pay
before imposing statutorily mandated fines and assessments. In addition,
because the $2,000 restitution fine imposed by the trial court exceeded the
$300 statutory minimum, Lopez-Vinck had the opportunity to object and
argue that he was unable to pay it, but he did not do so, notwithstanding
established statutory authorization for raising such a challenge (§ 1202.4,
subd. (d)).5 By failing to raise the issue of his inability to pay the $2,000
5 Section 1202.4, subdivision (d) provides that the court “shall consider
any relevant factors, including, but not limited to, the defendant’s inability to
17
restitution fine, Lopez-Vinck forfeited any claim that the court violated his
constitutional rights by imposing that fine, as well as the other fines and fees
imposed by the court, without considering his ability to pay. (See People v.
Miracle (2018) 6 Cal.5th 318, 356 [defendant forfeited challenge to restitution
fine which exceeded statutory minimum by failing to object at sentencing];
see also People v. Jenkins (2019) 40 Cal.App.5th 30, 40–41 [defendant had a
statutory right to object to imposing of $9,700 of $10,000, and his failure to do
so resulted in forfeiture of his claim under Dueñas that all of the assessments
and fees imposed without an ability to pay hearing violated his right to due
process].)
Because Lopez-Vinck failed to raise the issue of his ability to pay in the
trial court, he is precluded from raising an appellate challenge to the trial
court’s imposition of fines, fees or assessments without an ability to pay
hearing.
3. Ineffective assistance
Lopez-Vinck contends in the alternative that if this court concludes
that he has forfeited his claim that the trial court erred in imposing the
challenged fines and fees without determining his ability to pay them, then
his trial counsel rendered ineffective assistance in failing to assert an
objection on this ground.
“ ‘The law governing [an ineffective assistance of counsel] claim is
settled. “A criminal defendant is guaranteed the right to the assistance of
counsel by both the state and federal Constitutions. [Citations.] ‘Construed
in light of its purpose, the right entitles the defendant not to some bare
assistance but rather to effective assistance.’ ” [Citations.] It is defendant’s
pay,” in setting a fine in excess of $300, which is the minimum fine amount
set in subdivision (b)(1) of the provision.
18
burden to demonstrate the inadequacy of trial counsel. [Citation.] We have
summarized defendant’s burden as follows: “ ‘In order to demonstrate
ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his “representation fell below an
objective standard of reasonableness . . . under prevailing professional
norms.” [Citations.] Second, [a defendant] must also show prejudice flowing
from counsel’s performance or lack thereof. [Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” [Citation.]’ ” (People v. Vines (2011) 51 Cal.4th 830, 875–876
(Vines), overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56,
104.)
“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” [Citation.] Defendant’s burden is
difficult to carry on direct appeal, as we have observed: “ ‘Reviewing courts
will reverse convictions [on direct appeal] on the ground of inadequate
counsel only if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’
[Citation.] If the record on appeal ‘ “ ‘sheds no light on why counsel acted or
failed to act in the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,” ’ and the
‘claim of ineffective assistance in such a case is more appropriately decided in
a habeas corpus proceeding.’ ” (Vines, supra, 51 Cal.4th at p. 876.)
19
Lopez-Vinck has not met his burden to demonstrate either that his trial
counsel’s performance was deficient, or that there is a reasonable probability
that, but for counsel’s failure to object to the court’s failure to conduct an
ability to pay inquiry, the result would have been different. As to the first
point, the record does not reveal why defense counsel failed to request an
ability to pay determination. As a result, “ ‘ “ ‘unless there simply could be no
satisfactory explanation’ ” ’ ” for counsel’s failure to act (Vines, supra,
51 Cal.4th at p. 876), we must reject Lopez-Vinck’s ineffective assistance of
counsel claim. In this case, counsel could have reasonably concluded that,
given this record, an ability to pay hearing would not have altered the court’s
decision with respect to the fines and fees imposed. Specifically, the record
demonstrates that Lopez-Vinck has an ability to pay the fines and fees
imposed, based on his past income-earning capacity and financial means, as
well as his ability to earn prison wages during his sentence. (See People v.
Aviles (2019) 39 Cal.App.5th 1055, 1076 [“ ‘ “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’ ”].)
The fact that there is evidence that Lopez-Vinck does have an ability to
pay the imposed fines and fees also prevents Lopez-Vinck from being able to
make the requisite showing of prejudice for purposes of an ineffective
assistance of counsel claim. In essence, because there is evidence that Lopez-
Vinck has an ability to pay the fines and fees, there is no reasonable
probability that, but for counsel’s failure to request an ability to pay hearing,
the trial court would have imposed fines and fees in a lesser amount. (See
20
People v. Johnson (2019) 35 Cal.App.5th 134 [any error in imposing fines and
fees without an ability to pay hearing was harmless because record showed
that defendant had some financial means and past income-earning capacity,
as well as an ability to earn prison wages]; see also People v. Jones (2019)
36 Cal.App.5th 1028, 1035–1036 [same].)
D. The minute order and abstract of judgment must be corrected to align
with the trial court’s oral pronouncement of judgment and current law
Lopez-Vinck argues that the minute order from the sentencing hearing
and the abstract of judgment must be corrected to reflect the trial court’s oral
pronouncement at sentencing that it would not impose a one-year prison
prior.6 The People agree with this contention, acknowledging that the court
indicated its intention not to impose a sentence with respect to Lopez-Vinck’s
prison prior when the court stated, “And the Court will not impose the prison
prior one year, also.” The People also concede that under a recent
amendment to Penal Code section 667.5, subdivision (b), which became
effective on January 1, 2020, one-year prison priors may not be imposed
unless the prior offense was a sexually violent offense as defined in section
6600 of the Welfare and Institutions Code, and that this ameliorative
statutory amendment applies to nonfinal cases such as this one, where the
defendant’s prior offense was not a sexually violence offense. The People
agree that the minute order from the sentencing hearing date, as well as the
abstract of judgment, both of which refer to the imposition and staying of a
6 The minute order from the March 7, 2019 sentencing hearing includes
a reference to the one-year prison prior, and below the reference includes the
following typewritten notation: “1st Prison Prior as indicated above is stayed
per the Court.” The abstract of judgment includes in the section titled
“3. Enhancements” (capitalization omitted) a reference to the one-year prison
prior, and indicates that the prison prior has been stayed.
21
one-year prison prior enhancement, should be corrected to reflect the court’s
oral pronouncement of sentence, which included striking the one-year prison
prior enhancement.
We agree with the parties that the minute order and abstract of
judgment must be corrected to reflect the striking—rather than the
imposition and staying—of the one-year prison prior enhancement. We will
therefore remand to the trial court with directions to correct both documents
in this regard. (See People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate
court may direct trial court to correct minute order and abstract of
judgment].)
E. Any portion of the criminal justice administration fee imposed that
remained unpaid as of July 1, 2021 must be vacated
As of July 1, 2021, the statutory provision pursuant to which the court
ordered Lopez-Vinck to pay a $154 criminal justice administration fee was
repealed (see former Government Code section 29550.1 (section 29550.1)),
and newly-enacted Government Code section 6111 (section 6111) became
effective.7 Section 6111 provides:
“(a) On and after July 1, 2021, the unpaid balance of any
court-imposed costs pursuant to Section 27712,
subdivision (c) or (f) of Section 29550, and Sections 29550.1,
29550.2, and 29550.3, as those sections read on June 30,
2021, is unenforceable and uncollectible and any portion of
a judgment imposing those costs shall be vacated.
“(b) This section shall become operative on July 1, 2021.”
7 These changes were enacted as a result of the Governor signing
Assembly Bill No. 1869 into law. Effective July 1, 2021, Assembly Bill No.
1869 eliminates many fines, fees, and assessments that courts have imposed
under a variety of statutes. (Assem. Bill No. 1869 (2019–2020 Reg. Sess.)
§§ 2, 62.)
22
Because this change in the law became effective well after the parties
had submitted their briefs in this matter, we requested that the parties
provide supplemental briefing on the question of the effect of the repeal of
section 29550.1 on this pending appeal. In response to our supplemental
briefing request, Lopez-Vinck argues that under the authority of In re
Estrada (1965) 63 Cal.2d 740 (Estrada), Assembly Bill No. 1869’s repeal of
section 29550.1 entitles him to have the “portion of the judgment imposing
[the $154 fee under section 29550.1] vacated.” The People argue that this
court need not do anything in response to the change in the law because,
“under the bill’s plain language and California Supreme Court precedent, the
fee automatically became uncollectible starting July 1, 2021, without the
involvement of the courts.” The People assert that “the fee was enforceable
and collectible until June 30, after which date appellant was automatically
entitled to relief.” The People therefore contend that this court should affirm
the judgment with respect to the criminal justice administration fee.
The issue raised by the enactment of Assembly Bill No. 1869 requires
that we consider whether, and to what extent, the Legislature intended the
new statutory scheme to apply to individuals whose nonfinal judgments
include the imposition of fees that were repealed after sentence was imposed.
Because these questions involve interpretation of a legislative enactment
involving the repeal of one relevant provision (section 29550.1) as well as the
addition of a new provision (section 6111), we rely on certain general rules
governing statutory interpretation. A reviewing court’s construction of a
statute is “ ‘guided by the overarching principle that [its] task “ ‘is to
determine the intent of the enacting body so that the law may receive the
interpretation that best effectuates that intent.’ ” ’ ” (In re R.V. (2015)
23
61 Cal.4th 181, 192.) First among the principles of statutory interpretation is
honoring “ ‘ “the language of the statute” ’ ” as “ ‘construed in the context of
the statute as a whole and the overall statutory scheme.’ ” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 901.) If the language of the statute is
ambiguous, a court “can look to legislative history [citation] and to rules or
maxims of construction” to resolve the ambiguity. (People v. Smith (2004)
32 Cal.4th 792, 798.) Further, any ambiguities in a statute “are not
interpreted in the defendant’s favor if such an interpretation would
provide . . . a result inconsistent with apparent legislative intent.” (People v.
Cruz (1996) 13 Cal.4th 764, 783.)
In Estrada, the Supreme Court “considered the retroactive application
of a statutory amendment that reduced the punishment prescribed for the
offense of escape without force or violence.” (People v. Conley (2016)
63 Cal.4th 646, 656 (Conley).) The Conley court summarized the rule set out
in Estrada as follows:
“ ‘The problem,’ we explained, ‘is one of trying to ascertain
the legislative intent—did the Legislature intend the old or
new statute to apply? Had the Legislature expressly stated
which statute should apply, its determination, either way,
would have been legal and constitutional.’ [Citation.] But
in the absence of any textual indication of the Legislature’s
intent, we inferred that the Legislature must have intended
for the new penalties, rather than the old, to apply.
[Citation] We reasoned that when the Legislature
determines that a lesser punishment suffices for a criminal
act, there is ordinarily no reason to continue imposing the
more severe penalty, beyond simply ‘ “satisfy[ing] a desire
for vengeance.” ’ [Citation.] Thus, we concluded, ‘[i]t is an
inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter
penalty now deemed to be sufficient should apply to every
case to which it constitutionally could apply,’ including ‘to
24
acts committed before its passage[,] provided the judgment
convicting the defendant of the act is not final.’ [Citation]”
(Conley, supra, 63 Cal.4th at p. 656, italics added.)
The Estrada rule, therefore, “rests on an inference that, in the absence
of contrary indications, a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences that are
not.” (Conley, supra, 63 Cal.4th at p. 657.) It is clear, however, that “the
Estrada rule reflects a presumption about legislative intent, rather than a
constitutional command,” and, therefore, “the Legislature (or . . . electorate)
may choose to modify, limit, or entirely forbid the retroactive application of
ameliorative criminal law amendments if it so chooses.” (Conley, supra, at
p. 656, italics added.)
The voter enactment at issue in Conley, unlike the statute in Estrada,
was “not silent on the question of retroactivity.” (Conley, supra, 63 Cal.4th at
p. 657, italics added.) “Rather, the Act expressly addresses the question [of
retroactivity] in section 1170.126, the sole purpose of which is to extend the
benefits of the Act retroactively.” (Ibid.) The Conley court noted that, “[b]y
its terms, the provision [addressing retroactivity] draws no distinction
between persons serving final sentences and those serving nonfinal
sentences, entitling both categories of prisoners to petition courts for recall of
sentence under the Act.” (Ibid.)
Assembly Bill No. 1869, like the enactment at issue in Conley, reflects a
legislative intent to address retroactive application of its terms. Specifically,
Assembly Bill No. 1869, through the enactment of section 6111, distinguishes
between fees paid by convicted individuals pursuant to fee orders made under
the repealed fee statutes prior to July 1, 2021, and those fees that remain
25
outstanding as of July 1, 2021. Assembly Bill No. 1869 makes the legislative
intent clear, stating: “It is the intent of the Legislature to eliminate the
range of administrative fees that agencies and courts are authorized to
impose to fund elements of the criminal legal system and to eliminate all
outstanding debt incurred as a result of the imposition of administrative fees.”
(Assem. Bill No. 1869 (2019–2020 Reg. Sess.) § 2, italics added.) In order to
eliminate the “outstanding debt incurred” by defendants as a result of the
imposition of the repealed fee provisions, the Legislature enacted section
6111, which provides in relevant part: “On and after July 1, 2021, the unpaid
balance of any court-imposed costs pursuant to . . . Section 29550, and
Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30,
2021, is unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (§ 6111, subd. (a), italics added.) By
specifying the precise date on which the costs that have been imposed on
defendants pursuant to “Section 29550, and Sections 29550.1, 29550.2, and
29550.3,” become unenforceable and uncollectible, the Legislature made clear
that any amounts paid prior to that time need not be vacated, regardless of
whether the sentence of the person on whom the costs were imposed is final.
Because section 6111 indicates a legislative intent to extend the
ameliorative changes in the law regarding the imposition of administrative
fees to individuals serving both final and nonfinal sentences, but only to the
extent of relieving those individuals of the burden of any debt that remains
unpaid on and after July 1, 2021, the Estrada rule does not apply, and Lopez-
Vinck is not entitled to have the fee imposed pursuant to Government Code
section 29550.1 vacated in its entirety as a result of the repeal of section
29550.1.
26
However, we do not agree with the People’s contention that affirmance
of the judgment as it stands is appropriate. Pursuant to the express terms of
section 6111, subdivision (a), Lopez-Vinck is entitled to the vacatur of that
portion of the criminal justice administration fee imposed pursuant to
Government Code section 29550.1 that remains unpaid as of July 1, 2021,
and to the modification of his judgment consistent with such vacatur. Section
6111, subdivision (a) provides not only that any costs imposed pursuant to
the listed statutory provisions that remain unpaid on and after July 1, 2021
are “unenforceable and uncollectible,” but also that “any portion of a
judgment imposing those costs shall be vacated.” (§ 6111, subd. (a), italics
added.) Thus, by its express terms, section 6111 envisions that the
referenced costs are to be vacated, and it makes the vacatur mandatory
through its use of the word “shall.” (See, e.g., Mostafavi Law Group, APC v.
Larry Rabineau, APC (2021) 61 Cal.App.5th 614, 622 [noting that courts
generally construe the word “shall” as mandatory].)8 Although section 6111’s
reference to “those costs” is ambiguous, in that “those costs” could refer to the
entirety of the fee imposed by the trial court, such that the vacating of “those
8 We do not intend to suggest that an individual whose sentence is final
must seek the vacatur of any unpaid fees from a court in order to obtain the
ameliorative benefit of section 6111. By operation of law, any fees imposed
pursuant to Sections 29550, 29550.1, 29550.2, and 29550.3 that remain
unpaid as of July 1, 2021 are unenforceable and uncollectible. As a result,
any individual whose sentence is final will not be required to pay the
remaining balance of such fees, regardless of whether that remaining balance
is formally vacated by a court. However, given the language of section 6111,
a defendant whose judgment is on appeal and who requests the vacatur of
any remaining unpaid fees is entitled to have vacated any portion of the fees
imposed pursuant to any of the statutes identified in section 6111 that
remain unpaid as of July 1, 2021, rather than having his sentence affirmed.
27
costs” would eliminate the fee in its entirety, we conclude that the statutory
scheme supports interpreting the phrase “those costs” as referring only to
that portion of fee imposed by the court that remains unpaid as of July 1,
2021. (See Assem. Bill No. 1869 (2019–2020 Reg. Sess.) § 2 [intent of the
Legislature is to “eliminate all outstanding debt incurred as a result of the
imposition of administrative fees” (italics added)].)9 We therefore vacate any
balance of the costs imposed by the court pursuant to Government Code
section 29550.1 that remains unpaid as of July 1, 2021.
IV.
DISPOSITION
The portion of criminal justice administration fee imposed by the court
pursuant to Government Code section 29550.1 that remains unpaid as of
July 1, 2021 is vacated. The judgment is affirmed as so modified.
The matter is remanded to the trial court with directions to correct the
March 7, 2019 minute order and the abstract of judgment to reflect the
striking of the one-year prison prior enhancement. The court is further
directed to amend the abstract of judgment to reflect the vacatur of any
balance of the fee imposed pursuant to Government Code section 29550.1
that remains unpaid as of July 1, 2021. The court shall forward a copy of the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
9 Lopez-Vinck appears to concede that he is entitled to the vacatur of
only that portion of the fee that remains unpaid as of July 1, 2021, although
he phrases his request for relief slightly differently: “Appellant . . .
respectfully requests that this Court order the abstract of judgment amended
to strike the fee and direct the trial court to vacate the portion of the
judgment ordering collection of any unpaid debt related to that fee.”
28
AARON, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
29