68 Cal.App.5th 945
Cal. Ct. App.2021Background
- Probert shoplifted multiple items from a Kohl’s; as she exited three loss-prevention officers intercepted her and formed a human barrier.
- Lopez‑Vinck drove up, exited his car with a pocketknife (≈3-inch blade exposed), pointed the blade toward the officers, yelled “Back the fuck up,” and advanced toward them (estimated 6–15 feet), causing them to retreat.
- Probert passed the officers, entered Lopez‑Vinck’s car with the stolen merchandise, and they drove off.
- A jury convicted Lopez‑Vinck of three robberies and three counts of assault with a deadly weapon; personal-use and prior enhancements were found true; he was sentenced to three years.
- On appeal Lopez‑Vinck challenged (1) sufficiency of evidence for assault with a deadly weapon, (2) that brandishing (Pen. Code §417) preempts assault (§245) under Williamson, (3) imposition of fines/fees without an ability-to-pay finding (Dueñas), and (4) clerical errors re: a one‑year prison‑prior and a criminal‑justice administration fee later repealed by AB 1869.
Issues
| Issue | People’s Argument | Lopez‑Vinck’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for assault with a deadly weapon (§245(a)(1)) | Evidence showed defendant displayed a knife, assumed an aggressive posture, advanced toward officers, and they retreated — supporting assault and present ability. | He did not engage in an act likely to cause injury and lacked present ability given distance. | Affirmed — substantial evidence supports assault (knife raised, advanced, victims retreated). |
| Whether brandishing (§417) preempts assault (§245) under Williamson | Assault and brandishing have different elements; Williamson preemption does not apply. | Brandishing is the more specific statute and should preclude felony assault. | Rejected — elements do not correspond and §417 does not commonly or necessarily result in §245 violations; felony assault stands. |
| Imposition of fines/fees without ability‑to‑pay finding (Dueñas) and ineffective assistance for failing to object | Defendant forfeited the Dueñas challenge by not objecting at sentencing; record shows ability to pay so counsel may have had tactical reasons. | The court violated due process by imposing fees without ability‑to‑pay inquiry; counsel was ineffective for not objecting. | Forfeited. Ineffective‑assistance claim denied on direct appeal because record does not show deficient performance or prejudice. |
| Effect of AB 1869 / §6111 on criminal‑justice administration fee (former Gov. Code §29550.1) and clerical record re: prison prior | §6111 made unpaid balances of certain fees unenforceable as of July 1, 2021; unpaid balance should be vacated; trial‑court minute/abstract should reflect court’s oral striking of the one‑year prison prior. | Requests full vacatur of the fee and correction of records to show prison prior struck. | Court remanded to correct minute order and abstract to show the one‑year prison prior was struck; vacated any unpaid balance of the §29550.1 fee as of July 1, 2021 (per §6111). Affirmed as modified. |
Key Cases Cited
- People v. Wyatt, 48 Cal.4th 776 (Cal. 2010) (assault definition: act likely to directly and probably cause injury)
- People v. Chance, 44 Cal.4th 1164 (Cal. 2008) (present ability doctrine; immediacy need not be instantaneous)
- People v. Aguilar, 16 Cal.4th 1023 (Cal. 1997) (definition of "deadly weapon" under §245)
- Yslas, 27 Cal. 630 (Cal. 1865) (approach with raised weapon can constitute assault even without striking)
- In re Raymundo M., 52 Cal.App.5th 78 (Cal. Ct. App. 2020) (assault can be found where defendant lunges/advances with knife from several feet away)
- In re B.M., 6 Cal.5th 528 (Cal. 2018) (victim’s defensive retreat does not negate an ongoing assault)
- In re Williamson, 43 Cal.2d 651 (Cal. 1954) (Williamson preemption rule; special vs. general statute analysis)
- People v. Watson, 30 Cal.3d 290 (Cal. 1981) (tests for Williamson applicability)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability‑to‑pay hearing before imposing certain fines/assessments)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative statutes presumptively apply to nonfinal cases)
- People v. Conley, 63 Cal.4th 646 (Cal. 2016) (Estrada rule and when Legislature expressly addresses retroactivity)