People v. Lopez-Vinck

68 Cal.App.5th 945

283 Cal.Rptr.3d 922

The PEOPLE, Plaintiff and Respondent,

v.Alfred LOPEZ-VINCK, Defendant and Appellant.

D077029

Court of Appeal, Fourth District, Division 1, California.

Filed September 15, 2021

Certified for Partial Publication.^*

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.

AARON, Acting P.J.

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 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.^**

III.DISCUSSION

A.-D.^***

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."

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, 48 Cal.Rptr. 172, 408 P.2d 948 ( 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) 61 Cal.4th 181, 192, 187 Cal.Rptr.3d 882, 349 P.3d 68.) 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, 135 Cal.Rptr.2d 30, 69 P.3d 951.) 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, 11 Cal.Rptr.3d 290, 86 P.3d 348.) 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, 55 Cal.Rptr.2d 117, 919 P.2d 731.)

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, 203 Cal.Rptr.3d 622, 373 P.3d 435 ( 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 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, 203 Cal.Rptr.3d 622, 373 P.3d 435, 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, 203 Cal.Rptr.3d 622, 373 P.3d 435.) 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, 203 Cal.Rptr.3d 622, 373 P.3d 435, 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, 203 Cal.Rptr.3d 622, 373 P.3d 435, 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 outstanding as of July 1, 2021. Assembly Bill No. 1869 makes the...