Filed 12/20/19 P. v. Zamora CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL GUTIERREZ ZAMORA,

Defendant and Appellant.

G055827

(Super. Ct. No. 16CF1903)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed in part; reversed in part, and remanded with directions.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Israel Zamora was convicted of nine felonies at his jury trial. He filed a motion to disclose juror identifying information two days before his sentencing hearing. The trial court determined that Zamora did not give sufficient notice, denied the motion, and sentenced him to 98 years to life in state prison.

Zamora appealed and argues, in the only contested issue, that the court improperly denied his motion for juror identifying information on the mistaken belief that he had to give 20 days’ notice. We agree and remand the matter to the trial court so that the court can conduct a hearing on the issue.

Zamora also argues, and the Attorney General agrees, that (1) the personal use of a firearm enhancement should be stricken as to count 7; (2) Zamora is owed an additional day of custody credit; (3) the abstract of judgment and court minutes do not properly reflect the pronounced sentence on counts 2, 5, and 7; and (4) in light of Senate Bill No. 1393, the trial court must be given the opportunity to exercise its discretion regarding Zamora’s Penal Code section 667(a) priors. We agree and remand the case with directions that the court strike the enhancement as to count 7; modify Zamora’s custody credits; correct the minutes and abstract of judgment as to counts 2, 5, and 7; and exercise its discretion regarding the section 667(a) priors.

FACTS

The issues raised on appeal do not relate to the facts underlying the convictions. For that reason, we provide only a brief summary of the evidence at trial.

Zamora’s charges were based on three separate incidents involving the same victim, J. Hernandez. In the first incident, Zamora and Hernandez were drinking together and got into a fist fight. During the fight, Zamora threatened Hernandez with a gun and unsuccessfully attempted to force Hernandez into his car; Hernandez escaped.

The second incident occurred a few months later, when Hernandez was driving and Zamora walked into the street and began shooting at him, with several bullets hitting Hernandez’s car. Hernandez crashed and took off running but Zamora followed him and told him to get into his car. Hernandez agreed, and the two of them spent the rest of the day together. Later that evening, Zamora threatened to kill Hernandez.

The third incident occurred a few weeks later when Zamora went to Hernandez’s house and threatened to hurt Hernandez or his family if Hernandez talked to the police.

The jury convicted Zamora of attempted murder, discharging a weapon at an occupied vehicle with an enhancement of personal use of a deadly weapon, attempted kidnapping, kidnapping, dissuading a witness, criminal threats, and two counts of assault with a firearm. Sentencing was initially set for June 2, 2017; it was then continued to July 21, September 29, November 17, and finally to January 5, 2018.

On January 3, 2018, Zamora filed a motion to disclose juror identifying information arguing that there was good cause to disclose the information based on a declaration by Zamora’s sister. According to her declaration, “during one morning break near the beginning of the trial, I overheard a female juror walking back into the courtroom state to another female juror, ‘let’s just find him guilty so we can get this over with.’ The juror was laughing as she said it. The second female juror also laughed about it.”

When considering the motion to disclose juror information the court said, “I note that we finished this trial in March of 2017. I got this motion yesterday. It’s supposed to be 20 days’ notice. There’s not 20 days’ notice. There’s no reason this motion couldn’t have been brought prior thereto.” (Italics added.) Defense counsel responded, “I understand the court’s concern about the timing of the motion, and I wish I could have been in a position to file that sooner. Unfortunately, it did take me some time to get that motion—or to get the declaration signed and get back to me.” Defense counsel argued that the contents of the declaration were of “serious concern” and “worthy of at least inquiring of those jurors whether that took place and how that could have affected the verdict . . . .” The court denied the motion.

DISCUSSION

1. The Motion for Juror Identifying Information

Code of Civil Procedure sections 206 and 237 govern the procedure for the release of juror identifying information. Section 206(g) allows for a defendant to “petition the court for access to personal juror identifying information . . . for the purpose of developing a motion for new trial or any other lawful purpose,” and requires the court to consider such petitions pursuant to section 237. Section 237, subdivision (b), requires the court to set a hearing if the defendant’s petition establishes a “prima facie showing of good cause,” but the court “shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure.” If the court sets a hearing, the defendant must provide notice of the petition at least 20 days prior to the hearing to the parties in the action. (Code Civ. Proc., § 237, subd. (c).)

Zamora argues that the court improperly denied his request for juror information on the mistaken belief that he was required to give 20 days’ notice of the motion. We agree.

The court’s only stated reason for denying the motion was, “I got this motion yesterday. It’s supposed to be 20 days’ notice. There’s not 20 days’ notice.” The court did not address whether Zamora established good cause for a hearing. The ruling appears to be based solely on the court’s belief that Zamora failed to comply with a 20 day notice requirement. Code of Civil Procedure section 237 does not contain an express time requirement. However, case law has created ‘“an implied timeliness requirement, albeit only a limited one.”’ (People v. Diaz (2015) 235 Cal.App.4th 1239, 1243; citing People v. Johnson (2013) 222 Cal.App.4th 486, 497 498.) The limited timeliness requirement involves a due diligence analysis. Since the trial court here failed to engage in such an analysis, the court’s denial of Zamora’s motion must be reversed. The matter is remanded to permit the court to make a determination as to Zamora’s due diligence in preparing and filing his motion. If the trial court finds that he exercised due diligence as required, the court shall then determine whether Zamora’s motion established “a prima facie showing of good cause for the release of the personal juror identifying information” as required by Code of Civil Procedure section 237, subdivision (b).

2. Personal Use of a Firearm Enhancement on Count 7

The jury convicted Zamora on count 7, shooting at an occupied vehicle (Pen. Code, § 246), and found true the allegation that he personally used a firearm (Pen. Code, § 12022.5(a)). The court sentenced Zamora to seven years to life for the section 246 violation, plus additional time for the enhancement and priors. The court then stayed that sentence pursuant to Penal Code section 654.

Zamora argues, and the Attorney General concedes, the enhancement must be stricken pursuant to Penal Code section 12022.5, subdivision (a) . We agree.

To be guilty of a violation of Penal Code section 246, a defendant must “maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . .” (Pen. Code, § 246.) “Section 12022.5, subdivision (a)(1), provides generally that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle.” (People v. Kramer (2002) 29 Cal.4th 720, 723, fn 2.) The enhancement must therefore be stricken as to count 7 as a matter of law. On remand, we direct the trial court to do so, and also to correct its minutes and abstract of judgment concerning the sentence imposed on count 7.

3. Errors in the Minutes and Abstract of Judgment

Zamora argues, and the Attorney General again concedes, that there are multiple errors in the court minutes and the abstract of judgment.

The court sentenced Zamora on count 2 as follows: “for the 245(b), nine years; for the 12022.5(a), 10 years; for the three 667(a) priors, 15 years, five years each; for the 667.5(b) prior, one year imposed and stayed; for the 667.5(a) priors times three, three years each, nine years, stayed pursuant to 654.” Appellant correctly notes that the minute order does not reflect that the 12022.5(a) enhancement was stayed. On count 5, the court sentenced Zamora to 25 years to life, but stayed the sentence pursuant to section 654. Both the minutes and the abstract of judgment do not reflect the fact that the sentence was stayed. We direct the trial court to correct the minutes and abstract of judgment to reflect the sentence pronounced on the record.

4. Error in Credits

Zamora argues, and the Attorney General agrees, that Zamora is entitled to an additional day of presentence custody credit. Zamora had been in custody for 535 days when he was sentenced, but he was only awarded 534 days of credit. We direct the trial court to modify Zamora’s abstract of judgment and court minutes to reflect the correct credits.

5. Section 667(a) Priors

Zamora’s total sentence was increased by 15 years due to three section 667(a) priors. At the time of sentencing, the court did not have statutory discretion to strike section 667 enhancements. (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045 1047.) Following the enactment of Senate Bill No. 1393, trial courts now do have such discretion. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.); Pen. Code, §§ 667, 1385.) Zamora argues, and the Attorney General again agrees, that Zamora’s case should be remanded so that the court may consider exercising its discretion and striking the section 667 priors.

In In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada), the California Supreme Court held that a law allowing for a lighter penalty should apply to every case that is not yet final on appeal, unless there is evidence that the Legislature intended otherwise. (See also People v. Brown (2012) 54 Cal.4th 314, 323.) There is no indication that the Legislature intended to limit the application of Senate Bill No. 1393. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973 [Sen. Bill No. 1393 applies to every case wherein the judgment was not final as of January 1, 2019].) We therefore remand the case so the trial court can exercise its discretion under Senate Bill No. 1393.

DISPOSITION

We reverse the trial court’s denial of Zamora’s motion to obtain juror identifying information and remand with directions that the trial court determine whether Zamora’s motion complied with Code of Civil Procedure sections 206 and 237. The court shall determine whether Zamora has established that he exercised due diligence in the preparation and filing of his motion, and if so whether he has established good cause sufficient to warrant production of juror identifying information.

We also remand the matter with instructions that the trial court strike the Penal Code section 12022.5, subdivision (a), enhancement as to count 7 and award Zamora an additional day of presentence custody credit. The amended minutes and abstract of judgment must reflect that (1) the section 12022.5, subdivision (a), enhancement as to count 2 was stayed, and (2) the sentence on count 5 was stayed. The trial court is directed to prepare amended minutes and an amended abstract of judgment consistent with all ordered changes. In all other respects the judgment is affirmed. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, P. J.

ARONSON, J.