Opinion
G058186
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. EDGAR ZAVALA, Defendant and Appellant.
Victoria H. Stafford, 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, Acting Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 00CF1063) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed as modified. Victoria H. Stafford, 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, Acting Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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1. Introduction
Edgar Zavala brought this appeal after he was resentenced in order to correct the number of days of custody credit shown on the abstract of judgment. Zavala contends the abstract of judgment fails to include the 5,306 actual days he spent in the custody of the California Department of Corrections and Rehabilitation (CDCR) since his original sentencing. The Attorney General agrees the abstract of judgment should be modified to award Zavala an additional 5,306 actual days of custody credit. We shall order the abstract of judgment modified to reflect an additional 5,306 actual days of custody credit, for a total of 5,525 actual days of custody credit and 5,557 total days of credit.
2. Background
An information charged Zavala with six counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a)). The information also alleged Zavala had engaged in substantial sexual conduct with the victims within the meaning of Penal Code section 1203.066, subdivision (a)(8), and alleged as to counts 2, 3, and 5 that Zavala had committed a sexual offense specified in Penal Code section 667.61, subdivision (c) against more than one victim within the meaning of section 667.61, subdivisions (b), (c)(7), and (e)(5).
In December 2004, a jury convicted Zavala on counts 1 through 5 and found true all of the special circumstance allegations. As to count 6, the jury convicted Zavala of the lesser included offense of attempted lewd act on a child under 14 years of age. In February 2005, Zavala was sentenced to five consecutive terms of 15 years to life on counts 1 through 5. The court struck the sentence on count 6.
In a prior appeal, Zavala challenged the convictions on counts 5 and 6 only. We affirmed in an unpublished opinion. (People v. Zavala (Mar. 15, 2006, G035113).)
In June 2018, Zavala filed a petition for writ of habeas corpus in this court. He alleged: (1) imposition of 15-years-to-life sentences on counts 1 through 4 violated federal and state constitutional prohibitions on ex post facto laws because the evidence at trial did not prove the offenses occurred before the November 30, 1994 effective date of Penal Code section 667.61; (2) counts 1 through 4 were time-barred; and (3) both his trial and appellate counsel were ineffective for failing to raise those issues. In September 2018, a panel of this court issued an order to show cause, returnable before the superior court, on the ex post facto claim with respect to counts 1 and 2 and on Zavala's claim of ineffective assistance of trial and appellate counsel. The order to show cause directed the trial court to make findings and rule on Zavala's habeas corpus petition.
In December 2018, the trial court issued an order granting Zavala's habeas corpus petition. The court concluded the sentences imposed on counts 1 and 2 violated state and federal prohibitions on ex post facto laws and vacated the sentence imposed in February 2005.
Zavala was resentenced in August 2019 to a term totaling 55 years to life in prison. The court resentenced Zavala to a term of eight years on count 1 and a consecutive term of two years on count 2. On counts 3, 4, 5, and 6, the court reimposed the sentence imposed in February 2005. The court ordered that the sentences imposed on counts 1 and 2 run consecutively to the sentences on the other counts.
The trial court awarded Zavala his "original credits" of 251 days of custody credit, consisting of 219 actual days and 32 local conduct days of credit. At the sentencing hearing, Zavala's counsel stated that Zavala had 5,306 actual days of custody credit from the CDCR. The court asked whether the People disputed this calculation. The prosecutor replied no. The court took note of the additional 5,306 actual days of conduct credit. The court minutes have the entry, "Defendant also has 5,306 actual days from the [CDCR]." The abstract of judgment, however, reflects only 251 days of local conduct credit.
3. Discussion
"[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) In addition, in the event of a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
Zavala is entitled to custody credit for the days he spent in the custody of the CDCR from the date of his original sentencing to the date of resentencing. At the resentencing hearing, the People did not dispute that Zavala had served 5,306 days in prison. The trial court orally noted those days of custody credit, and they are awarded in the court minutes. The Attorney General agrees that Zavala is entitled to 5,306 days of custody credit in addition to the 251 days reflected in the abstract of judgment.
4. Disposition
The abstract of judgment is ordered modified to reflect 5,525 actual days of custody credit and 5,557 total days of credit. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.