Gilberto Lopez-Ramirez v. United States

Noiiee: Tlu's opinion is subject to formal revision before publication in the

Atlantie end Mar_})land Reporiers. Users are requested to notify the Clerk of the

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DlSTRlCT OF COLUMBIA COURT OF APPEALS

NO. lb-C`M-l.'ll‘)

FlL

GILBERTO L.or>Ez-RAMIRIEZ, APPELLAN'I', D;S§Ef /0“-: `IQ?-/

C d COiUm

_ADDBBIB a

4

V.

UNITED S'I'A'rlis, AI’I»l§Ll_EL-i_ C!e"k c"'Coun

Appeal from the Superior Cc)urt

Of`the District ofColumbia

(DVM-2363-l4)

(Hc)n. Nea| E. Kravitz, Tria] Judge)

(Argued .lune 27, 2017 Decided October 12, 2017)

Dunie/ S. Harau-‘a, Pub|ic Defender Service, With Whom Scnniu Fum and

A{iee I'Vong, Public Def`ender Service, were 011 the brief, f`er appellant.

Luuren R. Baies, ASSiStant United States Attorney, With Whom C' banning D.

P/)ii/ips, United Stales Attorney at the time the briei` Was filed, and E!i:obef/:

Trosn-mn, Eli:abeib H. Done//o, and Candiee C. i"Vong, ASSiStanl Unit€d Stat€$

Attc)rneys, were 0r1 the brief". for appellee

Bei`ore FISHER and BECKW|'I‘H, Assoc:'ore Jndge.s‘, and NI:BEI<F,R, Sen:'or

Jucige.

Opinion f`or the court by {-'I.s'soeioie Jua'ge FISIII:R.

Dissenting Opinion by Associute .]ud_ge BECKWI'I'|I at page 2().

I~.J

FlSl-IIER, Associcne Juclge: After a bench trial, appellant Gilberto Lopez-

Ramirez was convicted of attempted misdemeanor sexual abuse,1 but acquitted of

three counts of contempt2 Appellant argues that he should have received a jury

trial because his “tota| financial exposure" was greater than $4,000 When taking

into account assessments under the Victims o'l` Violent Cr"ime Compensation Act

(VVCCA). We affirm the decision of the Superior C`ourt denying appellant"s

request for a jury trial. We remand for the limited purpose of correcting

appellant`s sentence.

l. Background

VVCCA assessments are mandatory payments "imposed upon each person

convicted of or pleading guilty or nolo contendere to the offense in the Superior

Court of the District of Columbia or any other court in which the offense is

charged." D.C. Code § 4-516 (a) (2012 Repl.). A defendant must pay "an

assessment of between $50 and $250 for . . . misdemeanor offenses, and an

assessment of between .‘BIOO and $5,000 for each felony offense[.]"` !d. The

' D.C. Code §§ 22-3006. -30| 8 (2012 Repl.).

3 D.C`. Code § 231-1329 (c) (2012 Repl.).

assessments are placed in a fund that is used to compensate victims of crime in the

District ol`Columbia. See Pcu'ris/i v. District of`Co/nnibiu, 718 A.?.d 133, l33-34

{D.C`. 1998); see also D.C. Code § 4-515 (2012 Repl.) (C`rime Victims

C`ompensation Fund).

D.C. Code § 16-705 (b)( l )(B) (20I2 Repl.) allows a defendant to demand a

trial by jury if he "is charged with 2 or more offenses which are punishable by a

cumulative fine or penalty of more than $4,000 or a Cumulative term of

imprisonment of more than 2 years[.]" On the day before trial, appellant moved

for ajury trial, arguing that an assessment under the VVCCA should be considered

a “fme or penalty“ within the meaning of this statutory provision

Standing alone, the charge of attempted misdemeanor sexual abuse exposed

appellant to paying 3750: a 3500 iine, plus a $250 VVCCA assessment See D.C.

Code §§ 22-3006, -30|8 (2012 Rep|.) (setting a maximum fine of 3500 for

attempted misdemeanor sexual abuse). Appellant was exposed to a potential

payment of$3,750 if convicted ofthe three contempt counts: $3.000 in fines, and

5750 in VVCCA assessments See D.C. Code §§ 23-1329 (c)1 22-357|.01 (20!2

Rep|.) (setting a maximum fine of$l,UOO for each contempt violation). Appellant

therefore faced total potential payments of$4.500. Because this amount exceeded

4

the 54,000 threshold for fines or penalties in D.C`. Code § 161-705 (b)(l)(B),

appellant argued that he was entitled to a jury trial.

judge Laura Cordero rejected appellant`s argument, ruling that a VVCCA

assessment "is not a line." She cited Gota_i' v. Uniied Stutes, 805 A.Qd 944 (D.C.

2002), in which this court noted that the VVCCA “does not call [these sums] fines;

moreover, fines are generally prescribed in the statutes that define particular crimes

and establish the penalties for them." ]d. at 948 n.9. The Goto_r court decided to

adhere to the statutory term “assessments" when referring to VVCCA payments

[a'. I-'loweven the court in Goia_i‘ was not presented with the question we consider

here- whether a VVC`CA assessment should count as a ‘“ftne or penalty" for

purposes ofdetermining the statutory right to a jury trial.

Because appellant only faced a maximum payment of 33,500 if VVCCA

assessments were not included, .ludge Cordero`s ruling meant that he could not

cross the $4,000 threshold established in D.C. C`ode § 16-705 {b)( l )(B) to obtain a

jury trial. After convicting appellant of attempted misdemeanor sexual abuse,

ludge Nea| E. Kravitz sentenced him to 180 days` incarceration._ with execution of

sentence suspended as to all but thirty days; two years of probation; and a 550

payment under the VVCCA. On appealq Mr. Lopez-Ramirez reiterates his

argument that VVCCA assessments should be treated as fines or penalties under

D.C. Code § 16-705 (b)(l )(B), thus making his casejury-demandable.

ll. Analysis

We note as an initial matter that our inquiry focuses on the statutory right to

a jury trial conferred in the District of Co|umbia. Appellant has not asserted that

his constitutional right to ajury trial has been violated, and such a claim would fail

under Supreme Court precedent. See. e.g., Leu-'is i'. Uniteci Stutes, 518 U.S. 322,

323 (199()) (holding “that no jury trial right exists where a defendant is prosecuted

for multiple petty offenses"); United Srcues v. Noc/nigui, 507 U.S. 1, 4-6 (1993)

(ho|ding that a defendant was “not constitutionally entitled to a jury trial"' because

he was charged with a “petty offense" even though the penalties for the offense

included a maximum line of $5,000). The issue presented is entirely a matter of

legislative intent: did the Counci| of the District of Columbia intend that a

VVC`CA assessment be treated as a flne or penalty for purposes of applying D.C.

C`ode § 16-705`?

A. Standard of Review

Our review of questions of statutory interpretation is de novo. Peterson v.

United Stotes, 997 A.Zd 681 683 (D.C. 2010). ‘“We begin by looking lirst to the

plain language of the statute to detemiine if it is clear and unambiguous." Id. at

684 (intemal quotation marks omitted). We are mindfu|, however1 that “[s]tatutory

interpretation is a holistic endeavor[.]" Ti})pen t'. Dol_r, 10 A.3d l 123, l 127 (D.C.

2010) (en banc) (quoting l-'Vasbington Gas Liglit C`o. v. Pub. Seri'. Couun’n, 932

A.Bd 691. 716 (D.C. 2009)). “When interpreting a statute, the judicial task is to

discern, and give effect to. the legislature`s intent."' fn re C`.G.H., 75 A.3d 166,

171 (D.C. 2013) (quoting xl.R. v. F.C., 33 A.3d 403, 405 (D.C. 2011)). lndeed,

“the primary rule" of statutory construction “is to ascertain and give effect to

legislative intent and to give legislative words their natural meaning; should effort

be made to broaden the meaning of statutory language by mere inference or

surmise or speculation, we might well defeat true legislative intent." Gro_i-'.s'on v.

AT & T C`orp., 15 A.3d 219, 237-38 (D.C. 2011) (en banc) (a|terations omitted)

(quoting Bon/rs i’. Uniteri Stutes, 359 A.Zd S, l() (D.C, 1976)).

Thusq “[t]he words ofa statute are a primary index but not the sole index to

legislative intent; the words cannot prevail over strong contrary indications in the

legislative history." Id. at 238 (internal quotation marks omitted). "lt is a

fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory scheme."

0 ’Roiu'ke v. District ofC'oluinbio Po/iee & Firefig/iters ' Rei. & Re/ief`Br/., 46 A.3d

378, 383 (D.C. 2012) (quoting FD/l i’. Broii-'n & l-l"i//iainson Tobacco Corp., 529

U.S. 120, 133 (2000)).

B. The Text of the Statutes

We begin by looking at the statutory texts. “Fine" and "penalty" are not

defined in D.C. Code § 16-705. but the legislature could not have thought that

VVCCA assessments fell within those terms when it first enacted that statute See,

e.g., D.C. C`ode § l 1-715a (1961 ed.) (recodifying the provision that a defendant

may demand a jury trial when the "“fine or penalty"` exceeds certain thresholds).

VVCC`A assessments were not created until 1981 See 29 D.C. Reg. 933-85

(1982). Appellant nonetheless argues that VVCCA assessments should be

considered to be lines or penalties under D.C. Code § 16-705 because. among

other reasons, they “p|ace a financial burden on the defendant," they ‘“are imposed

as part ofa del`endant`s sentence." they have characteristics that seem to fall within

dictionary definitions of "l`ine" and “pena|ty," and the *`failure to pay them will

result in the same treatment as the failure to pay any other fine or penalty."

lt is not obvious from the text of the VVCCA that the C`ouncil intended

those assessments to fall within the term "fme or penalty," as used in § 16-705.

First, the Council used the word “assessment`1 in the VVCCA rather than “fine” or

"penalty." The Council also specified that VVCCA assessments were to be

imposed “[i]n addition to and separate from punishment imposed." see D.C. Code

§ 4-516 (a) (2012 Repl.), suggesting that the Council did not consider VVCCA

assessments to be punishment in the same way that a “fine or penalty" is. See id.

§ 16-705 (b)( l )(B) (providing that a defendant may receive ajury trial when he "is

charged with 2 or more offenses which are punishable by a cumulative fine or

penali‘_i' of more than $4,000" (emphases added)).3 Further. D.C. Code § 4-516 (c)

provides that VVC`CA assessments "shall be collected as fines" This language

3 Appellant cites certain federal cases for the proposition that federal victim-

assistance assessments have been interpreted as penalties or punishments See

Unii‘ecl Si‘ui‘es i’. King, 824 F.2d 313, 317 (4th Cir. 1987); Uniiecl Stutes i’. Sinitli,

818 F.2d 687, 690 (9th Cir. 1987); Unitecl .S'tcu’es t'. Ma_i‘beriji‘, 774 F.2d 1018, 1021

(10th Cir. 1985). l-'lowever1 those decisions are not binding on us, and they address

issues different than the one presented here. l\/loreover, other federal courts have

cast doubt on the proposition that the federal assessments are punishments See

Uiiiiecl Siuies i’. Dr)nolrlsr)m 797 F.2d 125 (3d C`lr. 1986) (liOlding that the rule of

lenity did not apply to the statute establishing the assessments because “Congress`

purpose in enacting [the statute] was not to punish criminal defendants but rather

was to raise revenue"'); see also Uniien' Suites v, Dobbins 807 F.2d 1301 131 (8th

Cir. 1986) (adopting the holding of Donalclson).

would be unnecessary if the Council otherwise equated “assessments" with

“lines."4

Nonetheless, given that “l`ine," ‘“penalty," and “assessment" can “seem

ambiguous in isolation_,” we look to legislative history and to “the remainder ofthe

statutory scheme" to discern the legislature"s intent. Ferguson v. Uni`reo' Siates,

157 A.3d 1282, 1285-86 (D.C. 2017). An examination of legislative history

reveals no evidence that the Council intended VVCC`A assessments to affect the

meaning of the “fine or penalty" language in D.C. Code § 16-705. Such an

interpretation would disrupt a statutory scheme that the Council has carefully

constructed over decades

4 Appellant emphasizes that the word ‘“fines" occasionally appears in the

committee report for the latest amendments to the VVCCA. Many of these

references however, are instances where the Committee was summarizing the

testimony of various witnesses who supported the amendments See D.C. Counci|,

Report on Bill 11-657 at 8-9. l l (Sept. 26, l996). Appellant also points to the use

of the word “fmes" in the preamble of the proposed bill as it is attached to the

committee report. See i'a'. at Attachment A. However, that tenn does not appear in

the preamble for the enrolled original. See 44 D.C. Reg. l 142 (1997). l\lowhere

does the Council suggest that VVCCA assessments are “fmes" for purposes of

analyzing the right to ajury trial. Finally. appellant notes that then-Mayor l\/larion

Barry sometimes referred to the assessments as “fines" in a |98l letter

recommending the original VVCCA legislation to the Couiicil. See D.C. Counci|,

Report on Bill 4-36| at Appendix A (Dec. 16, 1981). llowever, these references

were made in the context of a brief summary of the proposed legislation and, in

any event. the Mayor does not express the intent ofthe Counci|.

C. The lmpact on Other Statutes

Adopting appellant`s argument would affect much more than the

"cumulative fine or penalty” provision invoked by appellant lt would also

dramatically alter the application of D.C`. Code § 16-705 (b)(l)(A), which has

provided since 19935 that a defendant may demand a jury trial when he “is charged

with an offense which is punishable by a line or penalty of more than $1,000 or by

imprisonment for more than 180 days." See 40 D.C. Reg. 796, 799 (1993). ln

1994 the Council passed the l\/lisdemeanor Streamlining Act, which reduced the

maximum penalties for more than forty crimes to a fine of not more than $1,000 or

imprisonment for not more than 180 days, or bothq for the express purpose of

making those crimes non-jury-demandable. See 41 D.C. Reg. 2608 (1994); D.C.

Council` Report on Bill 10-98 at 3-8 (.lan. 26, 1994). ln 2013 the Council

standardized the maximum fine for 180-day crimes at 31,000. See D.C. Code

§ 22-3571.01 ibi (2012 Repi. a supp. 2014); 60 D.C.Reg_9834(20131.

This provision was previously codified at D.C`. Code § 16-705 {b)(l)

(1997 ed.). A small change was made in 1994 to correct a typographical error. See

41 D.C. Reg. 5197 (1994); D.C. C`ouncil, Repoit on Bill 10-673 at 5 (.lune 21,

1994).

5

ll

Thus, a vast number of misdemeanor offenses currently have a maximum

fine of$l,000. Under appellant`s interpretation of“f`me or penalty," a mandatory

VVCCA assessment would be added to the $l,000 maximum fine for all of those

offenses suddenly making them all jury-demandable under D.C. Code § 16-705

(b)(l)(A) even when charged in a single-count information.‘l This interpretation

would produce a result wholly at odds with the intent of the l\/lisdemeanor

Streamlining Act. There is absolutely no evidence that the Couneil intended this

result. Accordingly, even if a VVCCA assessment could be considered a "“fine,"

"penalty," or “punishment" for some purposes we would reject appellant`s

argument See, e.g., District of Colninbia O_}_‘fice of Tu.r & Rei'enne i’. Sunbelt

Beverage, LLC, 64 A.3d 138, 145 (D.C. 2013) (‘“[l]t is well established that the

literal meaning ofa statute will not be followed when it produces absurd results[.]"

(internal quotation marks omitted)); Peoples Drug Stoi'es i’. District ofC`o/unibia,

470 A.2d 751. 754 (D.C. 1983) (en banc) (“[A] court may refuse to adhere strictly

“ Appellant"s theory would also support an argument he made in the

Superior Court but does not advance on appea|. l“le argued that he was entitled to a

jury trial on each o|` the charges of contempt because the VVCCA assessment

would be added to the maximum fine of$l,000. A provision in the Misdemeanor

.lury Trial Act gives a defendant the right to a jury trial ifhe "is charged with 2 or

more offenses and the offenses include at least one jury demandable offense and

one non~jury demandable offense[.]" See D.C. Code § 16-705 (b-|) (2012 Rep|.);

49 D.C. Reg. 3440 {2002).

|‘)

to the plain wording of a statute in order to effectuate the legislative purpose[.]"

(interna| quotation marks omitted)).

lndeed. adopting appellant`s position would suggest that the Misdemeanor

Streamlining Act has been misapplied since it was enacted. But nothing in the

committee report for the 1997 amendments to the VVCCA suggests that the

Council intended the result appellant urges see D.C. Council, Report on Bill ll-

657 {Sept. 26, 1996), and we decline to find it by implication C_`f, e.g.._

Ricliarclson i’. Uniiecl States, 927 A.2d 1137, 1143 (D.C. 2007) (warning that

“[r]epeals by implication are not l`avored"' and that "[i]n the absence of`any express

repeal or amendment, a later statute is presumed to be in accord with the legislative

policy embedded in a prior statute so as to allow the prior and later statutes to be

construed together" (alterations omitted)).

We have stressed that “the canon disfavoring repeal by implication must be

taken seriously":

lt is one of the fundamental ground rules under which

laws are framed. Without it. determining the effect of a

bill upon the body of preexisting law would be

inordinately difficult, and the legislative process would

become distorted by a sort of blind gamesmanship, in

which l\/lembers of [the legislature] vote for or against a

13

particular measure according to their varying estimations

of whether its implications will be held to suspend the

effects of`an earlier law that they favor or oppose

Spe_i"er v. Brn‘r_i'. 588 A.2d 1147, 1165 (D.C. 1991) (quoting Uni`terl Stales i'.

Hunsen, 772 F.2d 940, 944 (D.C. Cir. 1985)). Consequently, we demand that “the

intention of the legislature to repeal . . . be clear and manifest." lcl. (emphasis

omitted) (quoting Kreiner v. Clieni. Cons!. Corp.q 456 U.S. 461, 468 11982)).

We confront a similar situation here Strictly speaking, appellant is not

asserting that any portions ol`§ 16-705 have been repealed by implication but his

argument would have much the same efl`ect. He contends that the day-to-day

application of§ 16-705 has been dramatically altered either by implication or by

inadvertence The intention ol` the legislature to make this change certainly is not

"clear and manifest."

D. The Legislative History of the Misdemeanor .lury Trial Act of 2002

Perhaps more importantly, the legislative history ofthe i’er_i' statute on irliicli

appellant relies dispels the notion that the Council intended for VVCCA

assessments to be considered fines or penalties for purposes of determining the

14

right to a jury trial. D.C. Code § 16-705 (b)(l)(B) was enacted as part of the

Misdemeanor .lury Trial Act of 2002. See 49 D.C. Reg. 3439 (2002). The

legislation apparently was prompted by the Supreme Court`s decision in Leii'is,

which held that the Sixth Amendment right to a jury trial did not limit the number

of petty offenses that could be joined in one prosecution See Leii'is, 518 U.S. at

323-24; D.C. Council, Report on Bill 14-2 at 1-2 (Nov. 27, 2001). ln the

committee report, the Council expressed concern with allowing prosecutors to

charge a defendant with multiple misdemeanor offenses which cumulatively

would "potentia|ly resu|t[] in lengthy prison sentences." unless a trial byjury was

provided D.C. Council1 Report on Bill 14-2 at l. However, the Council made

clear that it was “trying to balance the interests of efficiency and justice" when

setting the thresholds for determining when a defendant could demand ajury trial.

lcl. al 4.

ln that balancing process the Council rejected arguments by the Public

Defender Service for the District of Columbia and the American Civil Liberties

Union that defendants charged with multiple offenses should receive a jury trial

whenever the maximum cumulative penalty would be more than 180 days lrl. at 4.

7, Attachment E (testimony of Laura E. Hankins, C`hiefI.-egislative Counsel, Public

Defender Service for the District of Columbia) at 3, 6-7. Superior Court Chief

15

ludge Rufus G. King lll expressed the court`s “concern" with such a provision

noting the “toll” it “would take on juror and judicial resources" given the large

increase in the number of jury-demandable cases that would result. lrl. at

Attachment E (testimony of Chiefludge Rufus G. King lll) at 1. The Chiefludge

estimated that the provision would create “an additional 300 jury trials per year."

la’. at Attachment E (testimony ofChief.ludge King) at 2.

The Council responded to the Superior Court`s concerns Finding that the

"180 day limit would involve a significant increase in the administrative burden on

the [Superior] Court._"' the Council decided to set the threshold at two years instead

lcl. at 4. lt then changed the maximum-line threshold for multiple offenses from

81.000, as had been proposed, to the current $4`000 ‘“in order to be consistent with

the change in the threshold l`orjury demandable offenses based on [the] cumulative

prison penalt[y] [oftwo years]." lrl.

The committee report stressed that these changes ensured "that the

legislation will apply to cases representing roughly one to 5% of misdemeanor

cases in Superior Couit." which would constitute only “|0 50 total cases per

year[.]" lcl. at 5. Given this limited impact, the Counci| C`ommittee “believe[d]

16

that the additional resources required by the [Superior] Coun and law enforcement

agencies will be minimal." lcl.

Appellant`s interpretation of D.C. Code § 16-705 would plainly undo the

C`ouncil"s careful balancing Instead often to fifty additional cases per year being

subject to a jury trial, the Superior Court would be faced with additional jury trials

for the many offenses that currently are punishable by 180 days in prison andlor a

81,000 fine7 As former Chief ludge King noted in his testimony, such a result

would strain the Superior Court’s resources by requiring the court to summon and

accommodate more jurors; to spend more time on misdemeanor cases given that

jury trials typically take longer than bench trials resulting in the court resolving

fewer overall cases per month; and to “realign[] . . . resources" from “more serious

felony tria|s"’ to misdemeanors D.C. Council, Report on Bill 14-2 at Attachment

E (testimony of Chief.ludge King) at 2-3.

Significantly, the Council weighed these issues four years after passage of

the most recent amendments to the VVCCA. The Council would presumptively

l Most ofthe 180-day offenses would be implicated because the Council has

provided that the default maximum fine for those offenses is 511000. See D.C.

Code § 22-357|.01 (b) (2012 Repl. & Supp. 2014) [the “Criminal Fine

Proportionality Amendment Act of 2012"`).

17

have been aware of the current VVC`CA assessment system, yet it still expressed

its intention to limit the number of misdemeanor cases that would be tried by a

jury, and it nowhere indicated that it viewed VVCC`A assessments as affecting that

analysis In fact, the committee report outlined proposed changes to several

offenses that would set the maximum penalties at 180 days in prison, and/or a fine

of 81,000, “so that the defendant does not have the right to a jury trial in these

cases." lcl. at 3-4. Yet, under appellant`s interpretation of“fine or penalty" in D.C.

Code § 16-705, a defendant ii'ould have been entitled to a jury trial in those cases.f

lndeed, considered in context, appellant`s argument would suggest that botli

the Council and the Superior Court have been ignorant|y interpreting the

provisions relating to jury-demandable offenses for more than two decades First.

VVCCA assessments were created in 1982, and the Misdemeanor Streamlining

*" The committee report for the Criminal Fine Proportionality Amendment

Act of2012, which set the default maximum fine for 180-day offenses at 51,000,

see D.C. Code § 22-3571.01 (b) (2012 Repl. & Supp. 2014); 60 D.C. Reg. 9834

(2013). contains similar examples For instance the report stated that the

maximum fine for a first offense of driving under the inlluence ([)Ul) or driving

while intoxicated (DWl] was being changed from $300 to 1131,000. D.C. Council,

Report on Bill 19-214 at 12 (Oct. 9, 2012). Because VVCCA assessments are

imposed for traffic offenses see D.C. Code § 4-516 (a} (2012 Repl.), a defendant

charged with those offenses would be exposed to a potential payment over 81.000.

Nonetheless, the report stated: “While the penalty increases substantially, neither

the old penalty, nor the new penalty. create a right to a july tria|." D.C. Council.

Repon on Bill 19-214 at 12 (citing D.C. Code § 16-705 (b)}.

18

Act was not passed until 1994. See 29 D.C. Reg. 983-85 [1982); 41 D.C. Reg.

2608 (1994). Appellant seems to assume that the Council did not realize that its

decision in 1994 to set the maximum fine for various offenses at $1,000 did not in

fact accomplish its goal of making those offenses non-jury-demandable because

the VVCCA assessment would have to be added to the $1,000. Second,

appellant’s theory would lead to the conclusion that the Superior Court has since

1993,q erroneously denied a jury trial in every case in which a defendant has been

charged with at least one offense punishable by a fine of$ 1 1000.

ln sum, the Council never intended what appellant proposes Whatever the

definitions of"“fine.“ “penalty," or “assessment" may be in isolation the legislative

history and the larger statutory scheme ‘“make[] clear that [the statutory terms]

should not be read to extend to the outer limits of[their] definitional possibilities."

Orleniran i'. Hunle_i-‘ l'l"oorl, LLC, 985 A.2d 421, 426 (D.C. 2009) (internal

quotation marks omitted); see also Dolan i’. Unitecl Stores Posi‘ul Sei'v., 546 U.S.

481, 486 (2006) (concluding that "context and precedent require[d] a narrower

reading"` of a statute because "[t]he definition of words in isolation . . . is not

necessarily controlling in statutory construction"l; O'Rourlre, 46 A.3d at 386-87

" See 40 D.C. Reg. 796, 799 (|993) (amending D.C. Code § |6-705 to

permit a jury trial when a defendant has been charged with an offense punishable

by a line or penalty ol""more than $1`000").

19

lrejecting a statutory interpretation that would lead to “incongruous consequences"

and was "in tension" with other statutes). We therefore affirm the decision to deny

appellant a jury trial.

E. Remand to Correct Sentence

We remand for the limited purpose of correcting appellant`s sentence The

trial judge imposed a sentence of 180 days' incarceration suspended as to all but

thirty days A sentence of 180 days may be imposed for misdemeanor sexual

abuse D.C. Code § 22-3006 (2012 Repl.), but appellant was convicted of

attempted misdemeanor sexual abuse, which carries halfthat penalty. See irl. § 22-

3018.

lIl. Conclusion

We remand with instructions to correct appellant`s sentence ln all other

respects thejudgment ofthe Superior Coun is hereby

A_f}"ii'inerl.

BECkwl't'l-l, Assoei'ate Juolge, dissenting in part: The majority rejects

Gilberto Lopez-Ramirez`s contention that the Victirns of \liolent Crime

C`ompensation Act [VVCCA) assessment1 is a “fine or penalty" for the purposes of

the jury-trial statute D.C. C`ode § 16-705, on the ground that Mr. Ramirez`s

“interpretation would produce a result wholly at odds with the intent of the

l\/lisdemeanor Streamlining txct.”2 Ante at 1 1. But by deviating from the ordinary

commonsense understanding ofthe terms “f"ine" and “penalty"- an understanding

that encompasses a fee like the VVCCA assessment that was automatically

imposed following conviction in an amount proportional to the severity of the

offense the majority`s interpretation produces a result "wholly at odds" with the

intent of the jury-trial statute: it deprives defendants facing fines above the

statutorily specified threshold of their right to a jury trial. Because there is no

nonspeculative basis for us to prioritize the legislative purpose ofthe l\/lisdemeanor

Streamlining Act over that ofthejury-trial statute we should apply the statutes as

written construe their words “according to their ordinary sense and with the

' D.C. Code § 4-516 (a) (20|2 Repl.). A|l subsequent D.C. Code citations

are to the 2012 Replacement set unless otherwise noted

3 Title l of D.C. Act 10-238, 4| D.C`. Reg. 2608 (1994).

71

,¢_¢

meaning commonly attributed to them,"'l and conclude that the VVCC`A

assessment is a “fine or penalty."

l. The VVCCA Assessment ls a “Fine” or “'Penalty” Under § 16-705.

The text of the jury-trial statute D.C. Code § 16-705, reflects the intent of

the D.C`. Council (and of Congress*) that misdemeanor defendants facing monetary

fines and penalties above a certain threshold should receive a jury trial. ln its

current fomi. the statute provides that a defendant “charged with an offense which

is punishable by a fine or penalty ofmore than 51,000" or “charged with 2 or more

offenses which are punishable by a cumulative line or penalty of more than

$4,000"` is entitled to a jury trial. D.C. Code § 16-705 (b)(l). The Act’s long

title-- in relevant part, ‘“Al\l AC`T to amend section 16-705 . . . to require that trials

be jury demandab|e where a defendant charged with more than one offense is

3 Peoples Di'u_g Stores, lnc. v. District rif`("r)liiiiil)iri, 470 A.2d 7511 753 (D.C.

1983) (en banc) (quoting Davis i'. Unitecl States, 397 A.2d 9511 956 (D.C. 1979)).

“l Congress revised and codified the jury-trial statute at D.C. Code § |6-705

by enacting an Act of Dec. 23, 1963, Pub. L. No. 88-241_ 77 Statq 478. 558. But

C`ongress had provided for a statutory right to a jury trial long before that. See Act

of l'vlar. 3, 1891q ch. 536` § 2, 27 Stat. 848 (providing that "[i]n all prosecutions in

which [defendants] would not be by force ofthe Constitution ofthe l_lnited States

entitled to a trial by jury, but in which the line or penalty may be fifty dollars or

more or imprisonment for thirty days or more the trial shall be by jury"). The

jury-trial statute was most recently amended by the Misdemeanor .lury Trial Act of

2002, 49 D.C. Reg. 3439.

I~J

l\.)

exposed to a cumulative maximum fine of more than $4,000 or a cumulative

maximum term of imprisonment of more than 2 years" reflects the D.C`.

Council`s desire to expand the right to a jury trial in cases involving substantial

fines or penalties lrl.

Because ‘“fine" and “pena|ty" are not defined in the jury-trial statute and

because they do not seem to be terms of art, this court will typically “accord them

their ordinary meaning in common usage."’ Hooa’ v. Uni`tecl States, 28 A.3d 553,

559 (D.C. 201 l). ln common usage the term ‘“fine" refers to "a sum . . . imposed

as punishment for a crime." l-'l”'el)stet"s Tltirrl Neii' lnternatiomil Di`c'tionatji' 852

(20021; see also Blaclt"s Laii‘ Dtc'tlottcttj' 750 (IOtli cd. 2014) (defining "fine"' as

“[a] pecuniary criminal punishment or civil penalty payable to the public

treasury"). The term ‘“penalty" means "“the suffering in person rights or property

which is annexed by law or judicial decision to the commission of a crime or

public offense." l'l"el)ster's Tln'rrl Neii' lnternational Dietionar_i' 1668; see also

Blaclr's Laiv Dietionar_i--' 1313 (defining “penalty" as “[p]unishment imposed on a

wrongdoer. usu. in the form ofimprisonment or fine; esp., a sum of money exacted

as punishment").

Both fines and penalties are ordinarily understood to be forms of

punishment A punishment is “[a] sanction such as a fine penalty_ confinement,

23

or loss ofproperty, right, or privilege assessed against a person who has violated

the law." Blaclr's Laii' Dictionaiji' 1428. Typical criteria indicating that a monetary

fee or assessment is a punishment are: (1) it "places an additional burden or

penalty upon the defendant"; (2) it "can be imposed only following conviction ofa

crime"; (3) ‘“the assessment [is] higher . . . for more serious crimes,” reflecting a

“punitive objective"; and (4) the fee is "collected in the same way that fines are

collected." Unitecl States v. ll/lai’l)erri-~, 774 F.2d 1018, 1021 (10th Cir. 1985);

ac'c'orrl, Uiiiterl States i’. Kt`ng., 824 F.2d 313, 316- 17 (4tlt Cir. 1987); Unitecl States

i'. Stnitli. 818 F.2d 687, 689-90 (9th Cir. 1987);"" see also Uniterl States v.

Ba;`alra;`ian, 524 U.S. 321, 328 (1998) (ho|ding that forfeiture under a certain

statute constituted punishment because “[t]he statute directs a court to order

forfeiture as an additional sanction when `imposing sentence on a person convicted

of a willful violation").

5 The majority acknowledges that lvlr. L.opez-Ramirez cited these and

similar cases and correctly notes that these “decisions are not binding on us"' and

that they "address issues different than the one presented here." Ante at 8 ri.3. But

the point in citing these cases is that they sensibly explain what a “punishment" or

"penalty" is. The critical question in this case is whether the VVCCA assessment

is a “fine" (that is, monetary punishment) or “penalty" as those terms are

commonly understood, and these cases provide helpful guidance The majority

sets forth no alternative conception of what "fine," “`penalty." and "punishment"

mean and does not attack the cited cases` understanding ofthose terms

24

The VVCCA, originally enacted in 1982 and substantially revised in 1996.“

provides for an “assessment"l to be imposed on defendants “convicted of or

pleading guilty or nolo contendere to" various ofl"enses: "5100 for each violation

of § 50-2201.05, . . . between 850 and 8250 for other serious traffic or

misdemeanor offenses and . . . between $100 and $5,000 for each felony offense.'"

D.C. C`ode §4-516 (a).“ The VVCCA provides that "[t]he decision of the

sentencing court regarding assessments is final__" irl., that “`[a]ssessments . . . shall

be collected as fines," id. § 4-516 (c),° and that "[f]ailure to pay . . . will subject a

*‘ Victims of Vio|ent C`rime Compensation Act of 1981, 29 D.C`. Reg. 969

(Apr. 6, 1982); Victims ofViolent Crime Compensation Act of 1996, 44 D.C. Reg.

1141 (Apr. 9, 1997).

7 The term “assessment” is neutral and can refer to either a fine or a non-

fine payment See Blaclr's Lon-' Dictionar_i> 139 (defining “assessment" as the

“[i]mposition of sorriething1 such as a tax or fine . . . ; the tax or fine so imposed").

“‘ The majority notes that the VVCCA assessment is "imposed ‘[i]n addition

to and separate from punishment imposed."" xlnte at 8 (quoting D.C. Code § 4-516

(a)) (alteration in origina|). T`his language reflects the D.C. Council`s intent that

the VVCCA assessment be imposed as an additional cost and that it not merge

into the line for the offense imposed pursuant to D.C. Code § 22-3571.01 or other

statute The fines of an individual convicted ol"a ninety-day misdemeanor could

thus be up to 81,250: the 51,000 maximum set forth in D.C. Code § 22-3571.01

(b)(4) plus the 8250 maximum VVCCA assessment The fines would not be

capped at $1,000 with 550 to 5250 ofthat going towards the VVCCA assessment

" The majority says that "[t]his language would be unnecessary if the

Council otherwise equated *assessments` with ‘fines."’ Ante at 9. But “laws often

make explicit what might already have been implicit `for greater caution` and in

order “to leave nothing to construction."` lining i'. Unitecl Pareel Serv.. lnc.. 135

(continued...)

25

defendant . . . to sanctions provided pursuant to § 16-706," i`cl. Tliat provision

states in turn that "the court may, in the event ofdefault in the payment of the line

imposed, commit the defendant for a temi not to exceed one year." D.C. Code

§ 16-706.

The VVCCA assessment is a “fine” or “pena|ty" as those terms are

commonly understood because it is "imposed as punishment for a crime" or is a

burden ““annexed by law or judicial decision to the commission of a crime."

l-l"el)stei"s Tlu`rrl Neir lnternational Dic'tionruji' 852. 1668. The VVCCA

assessment shares the typical characteristics of a punishment lt is necessarily

imposed following conviction as part ofthe sentence in this case it was included

in the written judgment of l\/lr. l.opez-Ramirez`s sentence"'-- --and it cannot be

imposed on a person who has not been convicted of an offense See D.C. Code

§4-516 (a). The trial court has discretion within a range to decide how high an

(...continued)

S. Ct. 1338, 1363 (2015) (Scalia, l., dissenting) (quoting The Federa|ist 1\10. 33, pp.

205 206 (.l. Cool<e cd. 196 l) (A. Hamilton]); see also District o_f`(__`olunibia i’. _lertjt‘

M., 717 A.2d 866` 871 (D.C. 1998) (“The presumption against redundancy . . . `is

only a constructionary crutch and not a judicial ukase in the ascertainment of

legislative intention."’ (quoting Erlii‘arrls v. Unitecl States 583 A.2d 661. 664 (D.C.

1990111.

"' This appears to be regular practice See C alter i=. Unitecl States, 37 A.3d

282, 285 n.l4 (D.C. 20|2) (“l\lor did the court err by amending its sentence to add

periods of supervised release and assessments under the Victims ofViolent C`rime

Conipensation Act that were required as a matter oflaw."` (emphasis added)).

26

assessment to impose for each conviction and the range for more severe offenses

(felonies) is higher than the range for less severe offenses (misdemeanors). See icl_

These considerations reflect a ‘“punitive objective" -"making the punishment fit

the crime." ll/la_i-'beriji', 774 F.2d at 1021. Finally, the VVC`C.A assessment is

‘“collected as [a] fine[]," D.C. Code § 4-516 (c), meaning, among other things that

a defendant who fails to pay it can go tojail, D.C. Code § 16-706.

Putting aside that the VVC`CA assessment bears many of the standard

hallmarks of a fine or penalty (or punishment), and putting aside that we have no

reason to think that the terms "`fine" and `““penalty" as used in the jury-trial statute

mean something different from what they mean in ordinary legal discourse the

legislative history of the VVCCA of 1996 -which enacted the current version of

the assessment provision D.C`. Code § 4-516- further signals that the D.C.

C`ouncil viewed the VVCCA assessment as a fine

At the outset the .ludiciary Committee's report on the VVCCA of 1996

repeatedly refers to the assessments as "'fines." D.C. C`ouncil, Report on Bill 1 l-

657 at 3 (Sept. 26, 1996) (noting that under the VVCCA ol` 1981, "many judges

did not consistently impose or collect the applicable fines needed to fund the"

C`rime Victims Compensation Program (CVCP) (emphasis added)); irl. at 8 (noting

the testimony of Professor ludith Bondennan that under the VVCCA of 1981, a

27

“sma|l portion" of the CVCP funds came "from_)‘i`nes assessed by Superior Court

judges" (emphasis added)); ul. (noting the testimony of Dan Eddy recommending

that the C`ouncil expand the funding for the CVCP by “including a broader range[]

of offenses in the class of offenses for which judges can assess victim _)'ines"

(emphasis added)); icl. at 9 (noting the testimony of Mary Lou Leary, Chiefofthe

Superior Court Division of the U.S. Attorney`s Office, that “thefines have not

been changed since the inception ofthe [victims' compensation] program in 1982"

(emphasis added)l; ial. at l l (noting the testimony of Anne Goodson stating that

the proposed VVCCA of 1996 “will assure thejudiciary that tlie_fines assessed will

be dedicated exclusively to use by the [victims`] compensation program"'

(emphasis added)). Although, as the majority notes, many- but not all- -of the

uses of the word “fine" are in the summaries of witness testimony. ante at 9 n.4,

the report`s consistent use of the tertii across multiple summaries indicates either

that the ludiciary C`ommittee viewed "fine" as an accurate term to describe the

‘“assessment" or that most lif not a|l) of the interested parties who testified before

the Judiciary Comniittee- including someone representing the U.S. Attorney`s

Office viewed it as such.'I

l' The draft of the VVCCA of 1996 that was attached to the .ludiciary

Committee`s report referred to the assessments as ‘_‘ ines thatjudges may assess for

certain offenses." D.C. Council, Report on Bill 11-657 Attachment A (emphasis

(continued...)

28

Other indications that the D.C. Council viewed the VVCCA assessment as a

line include a resolution the Council passed during the period in which the

VVCCA of 1996 was before the ludiciary Committee. Tliat resolution- entitled

“Sense of the C`ouncil on the Reestablishment of the District of Columbia Crime

Victims Compensation Program of 1996," Resolution l 1-337, 43 D.C. Reg. 3225

(.lune 4, l996)_referred to the VVCCA assessments as “lines" and stated that

“‘[i]n order to adequately fund the CVCP, the Council urges the Superior Court to

diligently levy the maximum allowable_)‘ines on convicted criminals as required by

D.C. C`ode § 3-414."]2 lcl. at 3 (emphasis added). Fifteen years earlier, the person

who proposed the VVC`CA of 1981, Mayor l\/larion Ber"ry, described the VVCCA

assessment in his cover letter to the proposed legislation as a "special line . . . to be

imposed on convicted offenders" D.C. C`ouncilq Report on Bill No. 4-361, App`x

A(oec. is 1931).

(...continued)

added). Although this language was removed from the final version of the

preamble see ante at 9 n.4, nothing in the final version of the preamble (or

anywhere else) indicates that the C`ouncil removed the language because it rejected

the characterization See 44 D.C. Reg. 1141. The later version of the preamble

appears instead to be a truncated version ofthe earlier version

'3 D.C. Code § 3-413 (c) at that time specifically said that the victim

compensation fund ‘“sha|l consist of," inter alia, “costs imposed under [the

assessments] section." D.C. Code § 3-413 (c) ( 1994 Repl.).

29

ll. The Presumed Purpose of the Misdemeanor Streamlining Act Cannot

Override the Clear Language of the .]ury-Trial Statute and VVCCA.

My colleagues in the majority will not give effect to the ordinary meaning

of the language in the jury-trial statute and the VVCCA assessment provision

because in their view, doing so would lead to a result in stark contradiction with

the intent ofthe Misdemeanor Streamlining Act. slate at l 1. There is little doubt

that the purpose of the Misdemeanor Streamlining Act was to render a large

number of misdemeanor offenses non-jury-demandable, and that when the D.C.

Council enacted the Misdemeanor lury Tria| Act of2002, it did not envision that

its amendment to the jury-trial statute would significantly increase the number of

jury-demandable cases13 Ante at 10-12, 14 16. lt is also true as the majority

states that to fully give effect to the D.C. C`ouncil`s intent in enacting the

Misdemeanor Streamlining Act (and its intent that the Misdemeanor .lury Trial Act

not significantly expand the number of cases tried by juries), the court would have

to reject Mr. Lopez-Ramirez`s interpretation of the jury-trial statute and the

"‘ Even before the l\llisdemeanor .lury Trial Act of 2002 was enacted._ there

were numerous offenses including most of the 180-day offenses --that would

have been jury-demandable ifthe VVCCA assessment had been treated as a fine

See ante at l 1 n.61 16 n.7. So to the extent a drastic increase in the number ofjury-

demandable cases had already occurred, the D.C. Council"s intent with respect to

the Misdemeanor lury Trial Act`s effect on that number is less significant

30

VVCCA assessment provision and deviate from the plain language of those

statutes

The majority`s interpretation falters because it undermines the clear

legislative purpose behind the jury-trial statute As spelled out in the preceding

section the jury-trial statute reflects the judgment of the D.C. C`ouncil and

C`ongress that defendants facing fines or monetary penalties above a certain

threshold -81.000 if charged with only a single offense but $4.000 otherwise

should receive a jury trial. The VVCCA assessment lits the functional criteria for

a fine or penalty, and the D.C. C`ouncil that enacted the VVCCA of 1996 likely

considered the VVCCA assessment a line The majority`s interpretation deprives

defendants whom the D.C. Counci| intended to receive jury trials --that is,

defendants facing fines above the statutory threshold --oftheirjury trials

Put another way, the statutes and legislative acts at issue in this case reflect

mutually incompatible legislative sgoa|s or purposes Tlrat leaves two choices for

resolving the inconsistency We can give effect to the purpose ofthe Misdemeanor

Streamlining Act- -but contravene the legislature’s intent that defendants facing

lines above a certain threshold receive a jury trial by pretending that the VVC.`CA

assessment is not a fine or penalty. Or we can give effect to the legislatures intent

that defendants facing fines above a certain threshold receive a jury trial but

31

undermine the purpose of the Misdemeanor Streamlining Act --by accepting that

the VVCCA assessment fits the criteria of a line or penalty,'4 At least the latter

option is consistent with the ordinary meaning ofthe text ofthe relevant statutes.'5

lll. There ls No Reason To Belicve That the D.C. Council Would Favor the

Majority’s lntcrpretation.

The majority’s analysis relies on the assumption that the D.C. Council, in

enacting the various amendments to thejury-trial statute (such as the l\/lisdemeanor

.lury Trial Act of 2002), the VVCCA (of 1981 and of 1996), and the l\/lisdemeanor

Streamlining Act (in 1994), was f`ully aware of the existence of other pertinent

14 There is a third way to resolve the inconsistency We could hold that the

VVCCA assessment plus any other fine imposed for an offense should be limited

by the maximum fines set forth in D.C. Codc § 22-3571.01 (b). Under such an

interpretation Mr. Lopez-Ramirez would not be entitled to a jury trial, and the

explosion ofjury trials that the majority fears would simply not happen But this

interpretation would be at odds with D.C. C`ode § 4-516 (a), which requires that the

VVCCA assessment be imposed ‘“[i]n addition to and separate from punishment

imposed." See also supra note 8.

'5 The rule oflenity does not apply in this case because the statutes at issue

are clear: the VVCCA assessment is a “fine or penalty" as those terms are

normally used See Hollon--'a__i-' v. Uniterl States, 951 A.2d 59, 65 (D.C`. 2008)

(explaining that the rule of lenity is “a secondary canon of construction and is to

be invoked only where the statutory language structure purpose and history leave

the intent ofthe legislature in genuine doubt" (quoting Cullen v. Uniteal States 886

A.2d 870, 874 (D.C. 2005))). A reasonable corollary ofthe rule oflenity might be

that when a court is faced with legislative acts reflecting irreconcilable legislative

purposes the court gives effect to the purpose that favors the defendant over the

purpose that favors the government

32

enactments, that it thought through completely how they would interact with each

other, and that this court can divine how the Council envisioned the enactments

interacting with each other. See, e,g., ante at 9 (contending that l\/lr. Lopez-

Ramirez’s interpretation would “disrupt a statutory scheme that the Counci| has

carefully constructed over decades"`); ante at 16 (stating that the Council that

passed the Misdemeanor .lury Trial Act of 2002 ‘“would presumptively have been

aware ofthe current VVCC`A assessment system . . . ."`); cf.' ante at 5 (framing the

“issue presented" in this case as whether “the [D.C.] Council . . . intend[ed] that a

VVCCA assessment be treated as a fine or penalty l`or purposes of applying D.C.

C`ode § 16-705"]. The majority does notjustify this assumption with any evidence

in the legislative history, and no such evidence exists. Moreover, the relevant

enactments were passed over a period of several decades and “their respective

subject matters and purposes” -in particular, the VVCCA`s purpose of creating

and funding a victims` compensation fund and the l\/lisdemeanor Streamlining

Act`s purpose of reducing the number ol`jury trials "are different." District of

Cr)hmt/)t`a v. T/iompsaa, 593 A.?.d 621, 630 (D.C. 1991); see also 213 Shambie

Singer, Sm‘he)‘[and S.*a!tm)r_i-' C()as!mcri`on § 5121 (7th ed.) (“`[l]n the absence of

some evidence that legislators were cognizant of related statutes, courts should

reject both the presumption and the rule of m pari materia until after exhausting all

33

other means to determine legislative intent."). So the majority’s central

assumption is unsound.

lt is not, moreover, the job of this court to resolve the conflict between the

purpose ofthe l\/lisdemeanor Streamlining Act and the text and purpose ofthejury-

trial statute C_'f Antonin Scalia & Brian A. Garner, Readi`ng Law.' The

hite)'[w'efaa`on ofLega/ Te,r:‘s 237 -38 (2012) (noting that the absurdity doctrine

"does not include substantive errors arising from a drafter`s failure to appreciate

the effect of certain provisions"). lndeed, if the D.C. Council today had to decide

how to resolve the apparent inconsistency between the purpose of the

Misdemeanor Streamlining Act and the jury-trial statute the C`ouncil might take

any number ol` approaches lt might adopt the majority"s interpretation and

indicate that the VVCCA assessment does not count as a “fine" or “penalty" for

the purpose of the jury-trial statute Or it might conclude alternatively, that

reducing the number ol`misdemeanorjury trials is no longer a priority and go on to

adopt l\/lr. Lopez-Ramirez"s proposed interpretation lt might also solve the

conflict by decreasing the fines or VVCCA assessments, pushing offenses back

below thejury-trial threshold This court cannot know. The majority, by deviating

from the clear language of the jury-trial statute and the VVCCA assessment

provision based on ‘“mere inference or surmise or speculation" about what the

Council wanted, "might well [have] defeat[ed] true legislative intent." Gra_i'san i'.

34

AT & T C`r)rp., 15 A.3d 2l9, 237 38 (D.C. 2011) (en banc) (brackets omitted).

l respectfully dissent.