People v. Zavala

THE PEOPLE, Plaintiff and Respondent, v. OMAR ALEJANDRO ZAVALA, Defendant and Appellant.

B298290

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

February 2, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MA022420)

APPEAL from a judgment of the Superior Court of Los Angeles County, Shannon Knight, Judge. Affirmed.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Blythe J. Leszkay and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ This appeal follows the resentencing of defendant Omar Alejandro Zavala for attempted murder and assault with a firearm. The original sentencing court issued an unauthorized sentence because it miscalculated defendant's minimum parole date. The "Three Strikes law" (Pen. Code,¹ §§ 667, subds. (b)-(i), 1170.12) required the original sentencing court to double the 15-year minimum parole date because defendant suffered a prior serious or violent felony conviction. (People v. Jefferson (1999) 21 Cal.4th 86, 90 (Jefferson).) The resentencing court corrected the error and imposed a longer sentence for the attempted murder—totaling 60 years to life. The resentencing court sentenced defendant to a 36-year determinate term for the assault with a firearm, but stayed that sentence pursuant to section 654.

On appeal, defendant argues that the resentencing court abused its discretion in declining to strike his prior conviction for a serious or violent felony, that his sentence violates principles of double jeopardy, and that his sentence constitutes cruel and unusual punishment. Defendant forfeited these arguments because he failed to raise them in the trial court. On their merits, his arguments also fail.

We affirm the judgment.

BACKGROUND

1. Facts Underlying Defendant's Conviction

In the appeal from the judgment of conviction, we described the pertinent facts: "Defendant and Thomas Trevino were members of the LCV street gang in the Antelope Valley. In earlyFebruary 2001, they became acquainted with Sonia Ortiz. Sonia Ortiz has two sisters, Sandra Ortiz (Sonia's twin) and Clemmie Graves.

"On February 17, 2001, Sonia and Sandra Ortiz went to Graves's Lancaster residence. Their purpose was to baby-sit while Graves went out for dinner with her boyfriend, Salvador Santos, who was associated with the Paca Flats gang of Pacoima. While baby-sitting, Sandra called defendant and Trevino and asked them to come to Graves's house so the four could 'hang out' together after Graves returned. About 20 to 30 minutes later, two cars pulled up on the opposite side of the street from the house. The first car was an Acura in which Trevino was the driver and defendant was the passenger. Other LCV gang members were in the second car.

"Soon thereafter, Graves and Santos returned to the house, pulling part way into the driveway. Defendant asked Santos where he was from, which meant that he wanted to know Santos's gang affiliation (Santos had a shaved head and was wearing baggy clothes in the style of a gang member). Santos felt disrespected because someone was asking him about his gang affiliation in front of his (Santos's) own house. Santos responded by saying 'What?' in a tone that would let defendant know that he felt disrespected.

"Defendant, who was either standing next to the passenger door of the Acura or just getting out of the car through that door, then fired multiple gunshots at Santos. Santos fled upon hearing the shots, at first not realizing that he had been hit. Santos's brother approached and asked Santos if he was all right. At that point Santos heard more bullets and hid behind a nearby car. Eyewitness testimony coupled with physical evidence indicatedthat defendant fired the first shots while getting out from the passenger side of the Acura and then moved toward the front of the car (perhaps for cover in the event that Santos had a gun), where he continued to fire." (People v. Zavala (July 24, 2003, B160722) [nonpub. opn.] (Zavala I), fn. omitted.)

"Defendant, Trevino and others were in a car that was involved in a traffic stop the day after the shooting. A .45-caliber handgun found in the car matched a bullet and casings that had been found at the scene. A gang expert testified that asking someone about gang affiliation could lead to a violent confrontation if the person asked were from a rival gang. It would be a sign of weakness to back down if the question were met with a disrespectful response. Shooting someone who had disrespected one's gang is a sign of strength and itself garners respect from members of the shooter's gang." (Zavala I, supra, B160722).

"Santos sustained a gunshot wound to the stomach, causing an injury to his hip bone that required surgery." (Zavala I, supra, B160722).

"[T]he manner in which defendant attempted to kill Santos demonstrated calculation; that is, firing multiple shots from relatively close range in separate groups of gunfire, the second group coming after Santos's brother approached him and asked if he was all right." (Zavala I, supra, B160722).

2. Conviction

In February 2002, the jury found defendant guilty of attempted murder. The jury found that the offense was committed willfully, deliberately, and with premeditation. The jury found that defendant personally and intentionally discharged a firearm causing great bodily injury to Santos withinthe meaning of section 12022.53, subdivision (d). The jury also found true a firearm enhancement within the meaning of section 12022.53, subdivision (c). The jury further found that defendant caused great bodily injury to Santos within the meaning of section 12022.7. The jury found a gang enhancement true.

The jury also convicted defendant of assault with a firearm and found that he personally used a firearm. With respect to the assault, the jury found that defendant personally caused great bodily injury to Santos.

Following a court trial on whether defendant had a prior robbery conviction, the court so found beyond a reasonable doubt. The court further found that the robbery constituted a serious or violent felony within the meaning of the Three Strikes law and that the robbery was a prior serious felony within the meaning of section 667, subdivision (a)(1), and a one-year prison prior within the meaning of section 667.5, subdivision (b).

3. Probation Officer's Report

The probation officer's report, dated October 25, 2001, indicated that defendant was born in 1980. Defendant had been a gang member since 1997. Defendant's mother reported defendant suffered from " 'learning disabilities,' " but defendant denied any medical problems.

Defendant had a criminal history. In November1997, the juvenile court sentenced defendant to 6 months' probation for vandalism. Just over a year later, in January 1999, defendant was convicted of robbery. The probation officer described the facts underlying that robbery as follows: Defendant and two fellow gang members entered a store and one of defendant's confederates threatened the store clerk with a handgun and stole cash and other items. Another confederate stole cash from thecash drawer. Meanwhile, defendant took video tapes, cigarettes, and other items. A getaway driver waited for defendant and his confederates and drove them away. Officers later recovered "a large amount of money" and a .357 revolver loaded with one round.

Defendant violated his parole in February 2001, when he possessed a firearm. A San Diego court sentenced defendant to 32 months for being a felon in possession of a firearm. Defendant was on parole when he attempted to murder Santos.

4. Original Sentence

On April 26, 2002, the original sentencing court imposed a life sentence for the attempted murder conviction with a premeditation finding. The court correctly indicated that the gang enhancement required that the court impose a 15-year minimum parole eligibility. (§ 186.22, subd. (b)(5).) The court did not double the minimum parole date under the Three Strikes law. The original sentencing court did not strike the prior serious or violent felony offense. The court imposed a consecutive 25-year-to-life sentence pursuant to section 12022.53, subdivision (d) and stayed the other firearm enhancement and the great bodily injury enhancement. The court added to the indeterminate sentence five years for the section 667, subdivision (a)(1) prior serious felony conviction enhancement. The court struck the one-year prior prison term enhancement in the interest of justice.

The court imposed a 31-year determinate sentence for the assault, which it stayed pending successful completion of the sentence for attempted murder. That sentence consisted of eight years for the assault (four years doubled pursuant to the Three Strikes law), three years for the great bodily injury enhancement,10 years for the firearm enhancement, and 10 years for the gang enhancement.

5. CDCR Letter

On October 23, 2018, the superior court received a letter from the California Department of Corrections and Rehabilitation (CDCR) stating that there may be an error in defendant's sentence. The letter indicated that defendant's minimum 15 year eligibility for parole was not doubled pursuant to the Three Strikes law.

6. Defendant's Response to the CDCR Letter

Through appointed counsel, defendant responded to the CDCR letter. Defendant argued that the life sentence with a 15-year minimum eligibility was not unauthorized and should be reimposed. Counsel did not request a new probation report.

7. De...