Summary
modifying the judgment to vacate the portion of a fee that Gov. Code, § 6111 had rendered unenforceable and uncollectible
Summary of this case from People v. JimenezOpinion
D077029
09-15-2021
The PEOPLE, Plaintiff and Respondent, v. Alfred LOPEZ-VINCK, Defendant and Appellant.
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.
Certified for Partial Publication.
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.
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.
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), 2020 WL 6075506 [nonpub. opn.].)
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.
See footnote *, ante .
See footnote *, ante .
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. Section 6111 provides:
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.)
"(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 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.
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, 275 Cal.Rptr.3d 821 [noting that courts generally construe the word "shall" as mandatory].) 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 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)].) 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.
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.
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."
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.
WE CONCUR:
IRION, J.
GUERRERO, J.