Metropolitan News-Enterprise
Wednesday,May 20, 2020
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Appeal Spawns Three Opinionson Issue Related to Dueñas Ruling
Justice Menetrez Takes Presiding Justice Ramirez to Task for HisApproach
Bya MetNews Staff Writer
Thecontroversial 2019 decision in People v. Dueñas that a defendanthas a due process right to an ability-to-pay hearing before fines and fees areimposed—which has divided the state’s Court of Appeal districts anddivisions and prompted the California Supreme Court to take up the issue inanother case—yesterday spawned three opinions in a single case dealing with a Dueñasissue.
A concurring opinion in the case by Court of Appeal JusticeFrank J. Menetrez of the Fourth District’s Div. Two chides Presiding JusticeManuel A. Ramirez for placing his own opinion first in line and disputes hischaracterization of it as a “plurality” opinion. Menetrez also raises thequestion of whether stare decisis should be followed at least to the extent ofa division adhering to its own recent pronouncements.
In the lead opinion, Ramirez declared that the defendant,Richard Valles, forfeited his due process challenge to a restitution finebecause he did not object at the time of sentencing. That view has been bothadopted and rejected by other courts.
The first opinion that dealt with the issue of forfeiturecame from this district’s Div. Seven which had handed down Dueñas onJan. 8, 2019. In People v. Castellano, decided on April 4, 2019,Presiding Justice Dennis Perluss declared that an ability-to-pay hearing is notforfeited by a defendant who does not invoke it in the trial court wheresentencing took place before Dueñas (authored by Justice Laurie Zelon)was filed.
In opinions filed yesterday, Justices Douglas P. Miller andFrank J. Menetrez agreed with Ramirez as to other issues in the case.
Miller’s View
Miller said that “[t]his court” in People v. Jonesrejected the view “that a defendant could be found to have forfeited a Dueñasclaim as to a minimum restitution fine imposed pursuant to Penal Code section1202.4, subdivision (b) because it was a novel argument and could not have beenanticipated by the defendant prior to Dueñas.”
Ramirez did not participate in that decision (nor didMenetrez; Miller did).
“Similarly, here, I would find that defendant in this casehas not forfeited the Dueñas argument that an ability to pay hearing isrequired as to the minimum restitution fine,” Miller wrote.
In a footnote, he said that the California Supreme Court“will ultimately decide” the forfeiture issue “as it has granted review in Peoplev. Kopp, review granted on November 13, 2019.”
(Although a broad-ranging opinion might be expected, inordering review, the California Supreme Court did not specify the forfeiture issueas one it would decide. It said: “The issues to be briefed and argued arelimited to the following: Must a court consider a defendant’s ability to paybefore imposing or executing fines, fees, and assessments? If so, which partybears the burden of proof regarding defendant’s inability to pay?”)
While Ramirez took the position that a challenge to arestitution fine—-which he noted is intended as punishment—had been forfeited,a challenge to the court facilities fee had not been, but added there was noneed for a remand to determine an ability to pay, because it can be assumedthat Valles, sentenced to prison for 50 years, will be able to satisfy his debtout of prison wages. Miller said that, in light of that ability, he sees noneed for a remand in connection with the restitution fine.
Menetrez’s Opinion
Menetrez stressed that Ramirez’s opinion is not a majorityopinion. He provided this discussion:
“Presiding Justice Ramirez is publishing his Dueñasanalysis, which is not joined by any other member of the panel and conflictswith this division’s published precedent in People v. Jones…, which heldthat a Dueñas challenge to a pre-Dueñas minimum restitution fineis not forfeited by failure to raise it in the trial court. Presiding JusticeRamirez’s opinion does not explain why he is declining to follow Jones;the opinion does not even acknowledge that he is doing so. Moreover, in afootnote within his Dueñas analysis, Presiding Justice Ramirezerroneously refers to his own opinion as ‘the plurality opinion.’ ”
He quoted the California Style Manual as saying “[a]n opinionis characterized as a plurality opinion when it has more signatories than anyother opinion supporting the judgment in the cause, but less than a majority,”and commented:
“Presiding Justice Ramirez’s opinion has the same number ofsignatories as every other opinion in this case (namely, one), and everyopinion in the case supports the judgment (on which we are unanimous). In sum,Presiding Justice Ramirez is publishing a dissenting view on the Dueñasissue that is inconsistent with our division’s published precedent, and he ispresenting it as a plurality opinion.”
Policy, Common Sense
The jurist continued:
“Justice Miller is the only member of the panel who is in themajority on every issue, both reasoning and result. Our division’s policy (aswell as common sense) dictates that Justice Miller should therefore author themajority opinion. But my colleagues have chosen a different path, withPresiding Justice Ramirez authoring a lead opinion that expresses a minorityanalysis of the Dueñas issue.”
Addressing that point in a footnote, Ramirez remarked:
“Justice Miller concurs with the result, and Justice Menetrezagrees with the concurrence. However, Justice Menetrez objects to the pluralityopinion, arguing that Justice Miller should be replaced as the author. JusticeMenetrez does not cite any authority or Internal Operating Procedures requiringany specific panel action where the separate opinions are unanimous on theoutcome.”
Other Issue
In a published portion of his opinion, in addition to dealingwith the Dueñas issue, Ramirez rebuffed Valles’s contention that thereshould be a remand so that the trial court—which beefed up the sentence basedon his having intentionally discharged a gun—can exercise discretion as towhether to apply a lesser included enhancement.
On April 11, 2019, the First District’s Div. Five held in Peoplev. Morrison that where a firearm enhancement is stricken, the court hasdiscretion to invoke a uncharged lesser included enhancement; on Aug 12, 2019,the Fifth District said in People v. Tirado that there us no suchdiscretion.
Review was granted in Tirado on Nov. 13, 2019—the sameday the California Supreme Court took up issues in Kopp.
The Fourth District’s Div. Two on Jan. 21—in People v.Yanez, a case in which Ramirez, Miller and Menetrez did notparticipate—sided with the court in Tirado. Review was granted April 22.
Menetrez’s Disagreement
Menetrez announced in yesterday’s opinion that he disagreeswith Tirado, Yanez, and Ramirez’s discussion in the present case,adding:
“But mindful of principles of stare decisis, I am aware of nobasis to depart from our division’s recent decision in Yanez, so Iconcur in the judgment.”
He elaborated in a footnote:
“I recognize that there are various interpretations of thefamiliar proposition that there is no horizontal stare decisis in theCalifornia Court of Appeal….In my view, we should treat the published opinionsof other divisions and districts as persuasive authority, but we shouldnormally follow the published opinions of our own division, absent a sufficientreason to depart from them….When our division has recently taken a position onan issue that is dividing the Courts of Appeal, I do not believe that my meredisagreement with our division’s position is a sufficient reason.”
Unpublished Portion
In a portion of the opinion which was not certified forpublication, Ramirez said that Valles was not entitled to an instruction onvoluntary manslaughter based on having acted in the heat of passion. Heexplained that while Valles and the victim had quarreled and wrestled earlier,the evidence did not show that the defendant was in a frenzied state at the timehe shot the victim—who was either dying from knife wounds or already dead—inthe head.
Valles testified that he believed the victim was dead but hewanted to alleviate any persisting brain pain.
Ramirez said:
“To suggest that defendant’s actions were comparable to thoseof an ordinary person of average disposition is unreasonable. An ordinaryperson of average disposition, upon seeing a stabbing victim bleeding on theground, does not get a rifle to finish him off. The average person of ordinarydisposition would seek emergency assistance for the victim, or so we hope. Thefact that the defendant did not seek emergency assistance for the victim, and,instead, procured a rifle to put him out of his misery, speaks volumes aboutdefendant’s mental state at the time of the shooting. He intended to make surethe victim was dead.
“Thus, the only evidence of defendant’s mental state was thatof premeditation and deliberation when he entered his tent, obtained the firearm,returned to where the victim lay, and shot him in the head. There is noevidence that the offense was less than that charged….There was no error inrefusing to instruct the jury on the theory of heat of passion voluntarymanslaughter.”
The case is People v. Valles, E071361.
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