Filed 2/26/21 P. v. Zamora CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302053
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. YA092302
v.
BYRON ZAMORA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed.
Rachel Lederman, 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, Scott A. Taryle and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
In November 2018, we affirmed Byron Zamora’s conviction
of assault with a deadly weapon inflicting great bodily injury.
Zamora stabbed a developmentally disabled 51-year-old man
held down by one or both of Zamora’s companions, after the
victim bought them beer following a dispute over a dog. Zamora
admitted a prior felony conviction for voluntary manslaughter,
and the trial court sentenced him to 16 years in prison including
what was then a mandatory five-year enhancement for the prior
serious felony conviction. (People v. Castaneda (Nov. 8, 2018,
B278764) [nonpub. opn.].)
In February 2019, our Supreme Court transferred Zamora’s
case back to us with directions to vacate our decision in light
of Senate Bill No. 1393 (SB 1393). We remanded for a new
sentencing hearing and directed the trial court to exercise its
discretion under SB 1393. (People v. Castaneda (May 9, 2019,
B278764) [nonpub. opn.].) The trial court declined to strike
the enhancement and imposed the same sentence. Zamora filed
this second timely appeal.
DISCUSSION
Effective January 1, 2019, during the pendency of
Zamora’s appeal, SB 1393 amended Penal Code section 667,
subdivision (a)(1) to give the trial court discretion to strike or
dismiss the five-year serious felony enhancement. SB 1393
applies retroactively to cases not yet final when it went into
effect. (People v. Zamora (2019) 35 Cal.App.5th 200, 208.)
On remand, the trial court held a resentencing hearing
on October 17, 2019. Zamora’s counsel requested a continuance
to allow his family to testify “as to the good things that are
going on with him. He’s been taking numerous programs.”
The prosecutor pointed out this would be the third continuance,
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and no good legal cause existed to grant it. The court denied
Zamora’s request to continue.
The court explained it had prepared several times and
was ready to rule.
“In addition, the information that Mr. Zamora
wishes to provide the court, I’m not so sure
that that is of any relevance . . . . [¶] [A]ny
additional information that occurred after Mr.
Zamora’s sentencing is of very little relevance
on the issue at hand. [¶] In addition, even if
it were, the court does not see, based on its
understanding, its review of the court file of
this case, that anything would cause this court
to strike or dismiss the enhancement. This
was a serious, violent felony. It was egregious.
Mr. Zamora’s actions were egregious. . . . [¶]
[The original sentencing judge] stated th[e]se
concerns[:] ‘There was no excuse for Zamora’s
participation in the three-on-one attack and
his stabbing of a developmentally disabled
man,’ expressed surprise that the stabbing
was not charged as an attempted murder,
found no mitigating factors and pointed
out that Zamora ‘piled on when he stabbed
[the victim] . . . perhaps to prevent him from
testifying about the robbery,’ so the court
does not see any reason to continue the matter,
so the request [for a continuance] is denied.”
Defense counsel argued the evidence that Zamora stabbed
the victim “was suspect and somewhat unreliable,” and the
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prosecutor rejoined that argument contradicted the jury’s
findings. The court stated it understood its discretion to strike
or dismiss the serious prior felony enhancement under SB 1393,
and “chooses not to, for the reasons already stated.”
Zamora argues the court did not properly understand its
discretion because it refused to allow him a third continuance
to present evidence of his postconviction conduct. If the record
“affirmatively discloses that the trial court misunderstood the
scope of its discretion, remand to the trial court is required to
permit that court to impose sentence with full awareness of its
discretion.” (People v. Fuhrman (1997) 16 Cal.4th 930, 944.)
In general, “[t]he defendant's postconviction behavior and
other possible developments remain relevant to the trial court’s
consideration upon resentencing.” (People v. Bullock (1994)
26 Cal.App.4th 985, 990.) The record does not affirmatively
show the trial court misunderstood the scope of its discretion.
The court saw “very little relevance” (not none) in any evidence
of Zamora’s behavior in prison he might present at a continued
hearing. And the court clearly stated any family testimony
that Zamora was participating in programs would not affect
the exercise of its discretion. Nothing Zamora could show
about his post-conviction behavior would change the court’s
view of Zamora’s “egregious” piling on when he stabbed the
developmentally disabled victim.
The trial court did not abuse its discretion when it refused
to strike the prior serious felony enhancement.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
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