Wednesday, May 20, 2020
Justice Menetrez Takes Presiding Justice Ramirez to Task for His Approach
By a MetNews Staff Writer
The controversial 2019 decision in People v. Dueñas that a defendant has a due process right to an ability-to-pay hearing before fines and fees are imposed—which has divided the state’s Court of Appeal districts and divisions and prompted the California Supreme Court to take up the issue in another case—yesterday spawned three opinions in a single case dealing with a Dueñas issue.
A concurring opinion in the case by Court of Appeal Justice Frank J. Menetrez of the Fourth District’s Div. Two chides Presiding Justice Manuel A. Ramirez for placing his own opinion first in line and disputes his characterization of it as a “plurality” opinion. Menetrez also raises the question of whether stare decisis should be followed at least to the extent of a 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 fine because he did not object at the time of sentencing. That view has been both adopted and rejected by other courts.
The first opinion that dealt with the issue of forfeiture came from this district’s Div. Seven which had handed down Dueñas on Jan. 8, 2019. In People v. Castellano, decided on April 4, 2019, Presiding Justice Dennis Perluss declared that an ability-to-pay hearing is not forfeited by a defendant who does not invoke it in the trial court where sentencing took place before Dueñas (authored by Justice Laurie Zelon) was filed.
In opinions filed yesterday, Justices Douglas P. Miller and Frank J. Menetrez agreed with Ramirez as to other issues in the case.
Miller said that “[t]his court” in People v. Jones rejected the view “that a defendant could be found to have forfeited a Dueñas claim as to a minimum restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b) because it was a novel argument and could not have been anticipated by the defendant prior to Dueñas.”
Ramirez did not participate in that decision (nor did Menetrez; Miller did).
“Similarly, here, I would find that defendant in this case has not forfeited the Dueñas argument that an ability to pay hearing is required 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 People v. Kopp, review granted on November 13, 2019.”
(Although a broad-ranging opinion might be expected, in ordering review, the California Supreme Court did not specify the forfeiture issue as one it would decide. It said: “The issues to be briefed and argued are limited to the following: Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?”)
While Ramirez took the position that a challenge to a restitution 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 no need for a remand to determine an ability to pay, because it can be assumed that Valles, sentenced to prison for 50 years, will be able to satisfy his debt out of prison wages. Miller said that, in light of that ability, he sees no need for a remand in connection with the restitution fine.
Menetrez stressed that Ramirez’s opinion is not a majority opinion. He provided this discussion:
“Presiding Justice Ramirez is publishing his Dueñas analysis, which is not joined by any other member of the panel and conflicts with this division’s published precedent in People v. Jones…, which held that a Dueñas challenge to a pre-Dueñas minimum restitution fine is not forfeited by failure to raise it in the trial court. Presiding Justice Ramirez’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 a footnote within his Dueñas analysis, Presiding Justice Ramirez erroneously refers to his own opinion as ‘the plurality opinion.’ ”
He quoted the California Style Manual as saying “[a]n opinion is characterized as a plurality opinion when it has more signatories than any other opinion supporting the judgment in the cause, but less than a majority,” and commented:
“Presiding Justice Ramirez’s opinion has the same number of signatories as every other opinion in this case (namely, one), and every opinion in the case supports the judgment (on which we are unanimous). In sum, Presiding Justice Ramirez is publishing a dissenting view on the Dueñas issue that is inconsistent with our division’s published precedent, and he is presenting it as a plurality opinion.”
Policy, Common Sense
The jurist continued:
“Justice Miller is the only member of the panel who is in the majority on every issue, both reasoning and result. Our division’s policy (as well as common sense) dictates that Justice Miller should therefore author the majority opinion. But my colleagues have chosen a different path, with Presiding Justice Ramirez authoring a lead opinion that expresses a minority analysis of the Dueñas issue.”
Addressing that point in a footnote, Ramirez remarked:
“Justice Miller concurs with the result, and Justice Menetrez agrees with the concurrence. However, Justice Menetrez objects to the plurality opinion, arguing that Justice Miller should be replaced as the author. Justice Menetrez does not cite any authority or Internal Operating Procedures requiring any specific panel action where the separate opinions are unanimous on the outcome.”
In a published portion of his opinion, in addition to dealing with the Dueñas issue, Ramirez rebuffed Valles’s contention that there should be a remand so that the trial court—which beefed up the sentence based on his having intentionally discharged a gun—can exercise discretion as to whether to apply a lesser included enhancement.
On April 11, 2019, the First District’s Div. Five held in People v. Morrison that where a firearm enhancement is stricken, the court has discretion to invoke a uncharged lesser included enhancement; on Aug 12, 2019, the Fifth District said in People v. Tirado that there us no such discretion.
Review was granted in Tirado on Nov. 13, 2019—the same day 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 not participate—sided with the court in Tirado. Review was granted April 22.
Menetrez announced in yesterday’s opinion that he disagrees with Tirado, Yanez, and Ramirez’s discussion in the present case, adding:
“But mindful of principles of stare decisis, I am aware of no basis to depart from our division’s recent decision in Yanez, so I concur in the judgment.”
He elaborated in a footnote:
“I recognize that there are various interpretations of the familiar proposition that there is no horizontal stare decisis in the California Court of Appeal….In my view, we should treat the published opinions of other divisions and districts as persuasive authority, but we should normally follow the published opinions of our own division, absent a sufficient reason to depart from them….When our division has recently taken a position on an issue that is dividing the Courts of Appeal, I do not believe that my mere disagreement with our division’s position is a sufficient reason.”
In a portion of the opinion which was not certified for publication, Ramirez said that Valles was not entitled to an instruction on voluntary manslaughter based on having acted in the heat of passion. He explained 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 time he shot the victim—who was either dying from knife wounds or already dead—in the head.
Valles testified that he believed the victim was dead but he wanted to alleviate any persisting brain pain.
“To suggest that defendant’s actions were comparable to those of an ordinary person of average disposition is unreasonable. An ordinary person of average disposition, upon seeing a stabbing victim bleeding on the ground, does not get a rifle to finish him off. The average person of ordinary disposition would seek emergency assistance for the victim, or so we hope. The fact 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 about defendant’s mental state at the time of the shooting. He intended to make sure the victim was dead.
“Thus, the only evidence of defendant’s mental state was that of 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 no evidence that the offense was less than that charged….There was no error in refusing to instruct the jury on the theory of heat of passion voluntary manslaughter.”
The case is People v. Valles, E071361.
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