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Court Must Make Ability-To-Pay Finding Prior to Imposition of Fines

California v. Lopez-Vinck Court: California Courts of Appeal, Docket: D077029 (Fourth Appellate District), Opinion Date: September 15, 2021. Defendant Alfred Lopez-Vinck appealed 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 contended insufficient evidence supported 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. He also argued his convictions for assault with a deadly weapon had to be modified to convictions for the lesser offense of brandishing because, he claimed, brandishing was a more specific statute that applied to his conduct and preempted the assault statute. In addition, Lopez-Vinck contended 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. The Court of Appeal concluded only that Lopez-Vinck’s final contention had merit; the case was therefore remanded for the trial court to correct the minute order and abstract of judgment to reflect that the court struck Lopez-Vinck’s prison prior. The Court also found a recent recent ameliorative amendment to the law entitled Lopez-Vinck to have vacated any portion of the fee imposed pursuant to Government Code section 29550.1.

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