People v. Chavez CA2/7

Filed 11/10/21 P. v. Chavez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B308641

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA091961)
v.

ADRIAN CHAVEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Conditionally affirmed
as modified and remanded with directions.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________________
 On March 17, 2008 a jury convicted Adrian Chavez of the
first degree murder of Salvador DeAvila as an aider and abettor
under the natural and probable consequences doctrine. The trial
court sentenced Chavez to an aggregate term of 75 years to life
and imposed a restitution fine, imposed and stayed a parole
revocation restitution fine, and imposed a DNA penalty
assessment and court security fee. The court also ordered victim
restitution. In 2020 the superior court granted Chavez’s petition
for resentencing under Penal Code section 1170.95,1 vacated his
murder conviction, and sentenced him to six years in state prison
for felony assault as a second-strike offender (§§ 667, subds. (b)-
(i), 1170.12). The court reimposed the fines and fees and placed
Chavez on parole for three years.
On appeal, Chavez contends the trial court erred in failing
to apply his excess custody credits to offset the fines and fees.
The People concede and we agree the trial court erred in failing
to apply his excess custody credits to offset the restitution fine,
parole revocation restitution fine, and DNA penalty assessment.
However, because the court security fee is not a punishment, the
excess custody credits cannot be used to offset that fee. Chavez
also contends the restitution award must be reversed because it
is based on his since-vacated murder conviction, or in the
alternative, we should remand for the trial court to consider
whether Chavez’s assault conviction supports the restitution
award. We agree with the latter contention and remand for the
trial court to hold a restitution hearing at which the People will
have the burden to prove by a preponderance of the evidence that
the assault by Chavez was a substantial factor in causing the

1 All further undesignated statutory references are to the
Penal Code.

2
murder. Finally, Chavez argues, the People concede, and we
agree the trial court erred in placing him on three-years’ parole
because section 3000.01 mandates a maximum two-year parole
term.
We modify Chavez’s sentence to reflect a two-year parole
term and satisfaction of the restitution fine, suspended parole
revocation restitution fine, and DNA penalty assessment in full.
We conditionally affirm the judgment as modified. If the trial
court determines at the restitution hearing that the assault
conviction does not support the prior restitution award, the court
should vacate the prior restitution award.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial2
On the night of June 24, 2007 DeAvila drove into the
parking lot of Tam’s Burgers in Paramount with Jose Maszano,
Antonio Palomares, and Fausto Rojo. DeAvila dropped the three
men off at the parking lot and drove in to find a parking space.
As Maszano, Palomares, and Rojo walked into the parking lot,
Yashie Navarro drove up in a white BMW and almost hit
Maszano. Maszano, who was intoxicated, briefly argued with
Navarro. Maszano then leaned on the BMW’s rear bumper and
began talking on his cell phone. Navarro told Maszano to “get
the fuck off his car.” Maszano said “okay” and walked away.
Chavez then walked up to Maszano and told him, “This is
Paramount Varrio, this is my Varrio. Get the fuck out of here.”

2 Our summary of the information and evidence is taken
from our opinion in People v. Chavez (May 9, 2011), B216450
[nonpub. opn.].

3
Chavez identified himself as “Evil.” Maszano responded, “[W]e
ain’t going nowhere.” Chavez punched Maszano on the side of
the chin and knocked him unconscious. Chavez then reached for
Maszano’s cell phone and went through Maszano’s pockets.
Palomares tried to push Chavez away from Maszano.
Another man approached Palomares and said something like,
“[D]o you know who he is?” or “[D]on’t be touching him” or
“[D]on’t be touching Evil.” The man then hit Palomares in the
nose, causing him to lose his contact lens. Palomares started to
throw punches to defend himself.
DeAvila left his car and headed toward the fight to help his
friends. Luis Jesus Rodriguez, later identified as a member of
Chavez’s gang, shot and killed DeAvila.

B. The Verdict and Sentence
On March 17, 2008 a jury convicted Chavez of first degree
murder (§ 187, subd. (a)) and found multiple firearm and gang
enhancements to be true. Chavez admitted he suffered a prior
serious or violent felony conviction under the three strikes law
and served two prior separate prison terms within the meaning of
section 667.5, subdivision (b). The trial court sentenced Chavez
to an aggregate term of 75 years to life in prison.3
The court ordered Chavez to pay a $10,000 restitution fine
(Pen. Code, § 1202.4, subd. (b)); it imposed and suspended a
parole revocation restitution fine in the same amount (id.,
§ 1202.45); and it imposed a $20 court security fee (id., § 1465.8,
former subd. (a)(1)) and $20 DNA penalty assessment (Gov. Code,

3 The court struck the prior prison term enhancement
allegations and imposed and stayed the 10-year gang
enhancement.

4
§ 76104.7, subd. (a)). The court also ordered Chavez to pay
$7,499.09 in victim restitution, plus 10 percent interest, to the
State Victim Compensation Board. (Pen. Code, § 1202.4,
subd. (f).) We affirmed Chavez’s conviction. (People v. Chavez
(May 9, 2011), B216450 [nonpub. opn.].)

C. Chavez’s Resentencing and Section 1170.95 Petition
In 2017, following the filing of a petition for writ of habeas
corpus with the California Supreme Court, the trial court
modified Chavez’s conviction to reflect a conviction of second
degree murder in light of the Supreme Court’s holding in
People v. Chiu (2014) 59 Cal.4th 155, 167. The court resentenced
Chavez to an aggregate term of 55 years to life and reimposed the
fines and fees. On January 23, 2019 Chavez filed a petition for
resentencing pursuant to section 1170.95. On August 26, 2020
the superior court granted Chavez’s petition and vacated his
murder conviction and the firearm enhancements. In finding
Chavez should be resentenced for the target offense of assault,
the court explained, “There is no dispute in the evidence that an
assault occurred. Therefore, redesignating Petitioner’s conviction
to assault fits his culpability for punching Maszano, rendering
him unconscious on the ground.” The court found the gang
allegations to be true as to the assault conviction, and designated
the target offense as felony assault based on the gang allegation
under section 186.22, subdivision (d). The court also noted
Chavez previously admitted the prior strike conviction and two
prior prison term allegations.
On September 17, 2020 the superior court resentenced
Chavez to the upper term of three years for felony assault,
doubled under the three strikes law. The court again struck the
prior prison term enhancement allegations. The court awarded

5
Chavez 4,793 days of actual custody credit (sentencing him to
time served) and placed Chavez on parole for three years.
Chavez’s counsel inquired as to whether the custody credits could
be used to offset the previously imposed fines and fees. The court
responded, “I don’t see anything imposed in the minute order. I
don’t have the abstract of judgment, so I’m really not going to say
anything about the fines and fees. It doesn’t appear it was
impose[d] by the judgment originally.”4

DISCUSSION

A. The Restitution Fine, Parole Revocation Fine, and
DNA Penalty Assessment Should Have Been Offset by
Chavez’s Excess Custody Credits; No Offset Is
Available for the Court Security Fee
Chavez contends, the People concede, and we agree Chavez
is entitled to have his excess custody credits applied as an offset
to the $10,000 restitution fine, the $10,000 suspended parole
revocation fine, and the $20 DNA penalty assessment. However,
notwithstanding the People’s concession, the custody credits
offset does not apply to the $20 court security fee, which was not
imposed as punishment.
When Chavez was convicted in 2007, section 2900.5, former
subdivision (a), provided, “In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has
been in custody, including, but not limited to, any time spent in a
jail, . . . prison, . . . or similar residential institution, all days of

4 Although the superior court indicated it intended to impose
the same fines and fees previously imposed, the 2020 amended
abstract does not reflect any fines or fees (or victim restitution).

6
custody of the defendant, including days . . . credited to the period
of confinement pursuant to Section 4019, shall be credited upon
his or her term of imprisonment, or credited to any fine on a
proportional basis, including, but not limited to, base fines and
restitution fines, which may be imposed, at the rate of not less
than thirty dollars ($30) per day, or more, in the discretion of the
court imposing the sentence.” (Stats. 1998, ch. 338, § 6.)
Section 2900.5, former subdivision (a), provided further, “In any
case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant
shall first be applied to the term of imprisonment imposed, and
thereafter the remaining days, if any, shall be applied to the fine
on a proportional basis, including, but not limited to, base fines
and restitution fines.” (Stats. 1998, ch. 338, § 6.)
Pursuant to section 2900.5, former subdivision (a), where a
defendant is resentenced under section 1170.95, any excess
custody credits may be used to offset the restitution fines.
(People v. Lamoureux (2020) 57 Cal.App.5th 136, 152 [“Under the
plain terms of section 2900.5, as the statute existed at the time of
the offense, the trial court was required to apply Lamoureux's
excess custody credits to reduce her $560 restitution fine at a rate
of no less than $30 per day of excess custody credit.”]; see
People v. Souza (2012) 54 Cal.4th 90, 143 [restitution fine must
be based on law applicable at time of sentence under ex post facto
clause]; People v. Callejas (2000) 85 Cal.App.4th 667, 678 [ex post
facto clause applies to parole revocation restitution fine].)
The excess custody credits also may be used to offset the
$20 DNA penalty assessment (Gov. Code, § 76104.7, former
subd. (a)) because it is a punitive assessment. (See People v.

7
Batman (2008) 159 Cal.App.4th 587, 590 [the DNA penalty
assessment “statute denominates the assessment a penalty”].)5
At the time Chavez was resentenced in 2020, the trial court
found Chavez was entitled to 4,793 days of actual custody credit,
and sentenced him to six years, which amounted to
approximately 2,190 days (assuming 365-day years). This left
Chavez with 2,603 days of excess credit. At $30 per day, Chavez
had sufficient excess custody credits to offset $78,090 in fines,
well in excess of the $10,000 restitution fine, the $10,000 parole
revocation restitution fine, and the $20 DNA penalty assessment.
Therefore, on remand the judgment should be modified to reflect
that the restitution fine, parole revocation restitution fine, and
DNA penalty assessment have been satisfied in full.

5 Government Code section 76104.7, former subdivision (a),
provided in 2007 that “there shall be levied an additional state-
only penalty of one dollar ($1) for every ten dollars ($10), or part
of ten dollars ($10), in each county upon every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal
offenses.” Government Code section 76104.7 is intended to help
“fund the operations of the Department of Justice forensic
laboratories, including the operation of the DNA Fingerprint,
Unsolved Crime and Innocence Protection Act.” (Id., § 76104.7,
subd. (b); see People v. Hamed (2013) 221 Cal.App.4th 928, 933,
fn. 2.) Chavez contends the DNA assessment was improperly
imposed because under Government Code section 76104.7, former
subdivision (a), it can only be imposed in addition to a “fine,
penalty, or forfeiture,” and the restitution fines and court security
fee do not qualify. Because we agree the DNA penalty
assessment can be offset by Chavez’s excess custody credits, we
do not reach this issue.

8
 In contrast, however, the court security fee is not designed
as a punishment, and therefore, the excess custody credits cannot
offset these fees. As the Court of Appeal explained in People v.
Robinson (2012) 209 Cal.App.4th 401, 406, in rejecting the
defendant’s argument that his excess custody credits should be
used under section 2900.5, subdivision (a), to offset the court
operations assessment (Pen. Code, §1465.8, subd. (a)(1)) and
court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), “‘A
fine is punitive.’ [Citation.] The term ‘fine’ in section 2900.5,
subdivision (a) includes ‘state and county penalty assessments.’
[Citation.] ‘The root word [of penalty], “penal,” means “of or
relating to punishment or retribution.” [Citation.] The American
Heritage Dictionary defines “penalty” as “[a] punishment
established by law or authority for a crime or offense.”’” The
court explained that the court operations assessment and court
facilities assessments, unlike restitution fines, were not
considered punitive, and therefore could not be offset with excess
custody credits. (Robinson, at pp. 406-407.)
The $20 court security fee under section 1465.8, former
subdivision (a)(1), is likewise a fee that was adopted as a
budgetary measure, not for punitive purposes. (People v. Alford
(2007) 42 Cal.4th 749, 758 [“The purpose of the court security fee
was not to punish but to ensure adequate funding for court
security.”]; People v. Wallace (2004) 120 Cal.App.4th 867, 875
[same].) As the Supreme Court explained in Alford, “‘The stated
reason for enacting the $20 court security fee appears in
section 1465.8, subdivision (a)(1), “To ensure and maintain
adequate funding for court security . . . .” The maintenance of
“adequate funding for court security” purposes is unambiguously
a nonpunitive objective.’” (Alford, at p. 756; accord, Wallace, at
p. 875.) Further, “the amount of the fee is not dependent on the

9
seriousness of the offense. Thus, it does not meet the objectives
of punishment and is distinguishable from a fine. Indeed, the
same fee is imposed in unlimited civil and probate cases.”
(Alford, at p. 759.) Because the court security fee “shall be
imposed on every conviction for a criminal offense” (§ 1465.8,
former subd. (a)(1)), the superior court was required to impose
this fee.

B. Remand Is Necessary for the Trial Court To
Determine Whether Chavez’s Assault of Maszano
Supports a Victim Restitution Award
Chavez contends the trial court erred in ordering him to
pay $7,499.09 in victim restitution (plus 10 percent interest) to
the State Victim Compensation Board because the award was
based on his murder conviction, which no longer stands. Chavez
argues in the alternative that the superior court should hold a
hearing at which the People must prove the assault was a
substantial factor in causing the murder of DeAvila. We agree as
to the latter contention and remand for the superior court to hold
a restitution hearing to determine whether to order victim
restitution based on Chavez’s assault conviction.
Section 1202.4, subdivision (f), provides with exceptions not
applicable here, “[I]n every case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court
shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the
amount of loss claimed by the victim or victims or any other
showing to the court. . . . The court shall order full restitution.”
(See Cal. Const., art. I, § 28, subd. (b)(13)(A) [“all persons who
suffer losses as a result of criminal activity shall have the right to
seek and secure restitution from the persons convicted of the

10
crimes causing the losses they suffer”]; People v. Martinez (2017)
2 Cal.5th 1093, 1098 [“‘To the extent possible,’ direct victim
restitution is to be ordered in an amount ‘sufficient to fully
reimburse the victim or victims for every determined economic
loss incurred as the result of the defendant’s criminal conduct.’”];
People v. Grandpierre (2021) 66 Cal.App.5th 111, 115 [“The
California Constitution requires courts to order restitution in
every case in which a crime victim suffers a loss. [Citation.]
Statutory provisions implement this constitutional directive.
Restitution is ‘based on the amount of loss’ the victim claims and
should ‘fully reimburse’ the victim for every economic loss the
defendant’s criminal conduct caused.”].) Section 1202.4,
subdivision (f)(2), provides that “[r]estitution ordered pursuant to
this subdivision shall be ordered to be deposited in the
Restitution Fund to the extent that the victim . . . has received
assistance from the California Victim Compensation Board.”
The People argue Chavez has forfeited his right to
challenge the superior court’s victim restitution order by failing
to object to the restitution order at the time he was resentenced.
(See People v. Anderson (2010) 50 Cal.4th 19, 26, fn. 6
[“Defendant has waived a claim of error as to the amount of
restitution by failing to object on that ground in the trial court.”];
People v. Mays (2017) 15 Cal.App.5th 1232, 1237 [“A defendant
wishing to argue on appeal that there is no factual basis for a
restitution order must object on that ground in the trial court to
preserve the issue for appeal.”].)
However, at the time Chavez was resentenced in 2020, it
was not clear the superior court intended to reimpose the prior
victim restitution order. When Chavez’s counsel raised a concern
about the court’s imposition of “mandatory fines and fees,” the
court responded, “Well I don’t see anything imposed in the

11
minute order. I don’t have the abstract of judgment, so I’m really
not going to say anything about the fines and fees. It doesn’t
appear it was imposed by the judgment originally.” Although
Chavez did not at that time also object to an award of restitution,
the superior court did not address or award restitution at the
hearing, nor does the minute order or amended abstract of
judgment address victim restitution.6 Forfeiture principles
therefore do not apply.
Chavez argues the victim restitution order should be
vacated because he no longer has a conviction for murder, the
basis for the initial restitution award. (See People v. Lai (2006)
138 Cal.App.4th 1227, 1246 [“section 1202.4 limits restitution to
losses caused by the criminal conduct for which the defendant
was convicted”]; People v. Percelle (2005) 126 Cal.App.4th 164,
180 [“in the nonprobation context, a restitution order is not
authorized where the defendant’s only relationship to the victim’s
loss is by way of a crime of which the defendant was acquitted”].)
However, Chavez acknowledges that to the extent his
assault of Maszano caused the murder of DeAvila, he could be
held responsible for victim restitution for economic losses from
the murder. (See People v. Trout-Lacy (2019) 43 Cal.App.5th 369,

6 Given that the amended abstract of judgment leaves blank
the lines specified for imposition of fines and fees and victim
restitution, arguably they were not imposed at the time of the
2020 resentencing (unlike in 2017 when fines, fees, and victim
restitution were specifically reimposed). But the parties appear
to agree that the court effectively imposed the same fines, fees,
and victim restitution that were previously imposed. Further,
the court must address restitution on remand, as required by the
California Constitution (Cal. Const., art. I, § 28, subd. (b)(13)(A))
and section 1202.4, subdivision (f).

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372 [in determining victim restitution, “[w]e apply tort principles
of causation to determine whether a loss was a result of the
defendant’s conduct”]; People v. Holmberg (2011) 195 Cal.App.4th
1310, 1321 [“tort principles of causation apply to victim
restitution claims in criminal cases”].) As the Court of Appeal
explained in Trout-Lacy, “‘Legal causation in tort law has
traditionally required two elements. . . .’ [Citation.] The first is
cause in fact. [Citation.] ‘“‘An act is a cause in fact if it is a
necessary antecedent of an event.’” [Citation.]’ [Citation.] ‘[T]he
“but for” test governs questions of factual causation’ except in
cases involving concurrent independent causes, in which case the
‘substantial factor’ test applies. [Citation.] ‘[C]oncurrent
independent causes . . . are multiple forces operating at the same
time and independently, each of which would have been sufficient
by itself to bring about the harm.’ [Citation.] The second aspect
of legal causation focuses on public policy considerations that
limit an actor’s responsibility for the consequences of his
conduct.” (Trout-Lacy, at p. 372; accord, Holmberg, at pp. 1321-
1322 [trial court did not abuse discretion in ordering defendant to
pay restitution where defendant’s receipt and concealment of
stolen property on day it was taken in burglary was concurrent
cause of victim’s loss and substantial factor in causing loss to
victim].)
The People contend Chavez’s gang challenge (“This is
Paramount Varrio, this is my Varrio”) and his punching of
Maszano and knocking him unconscious were the precipitating
factors that caused Rodriguez to shoot and kill DeAvila.
Certainly Chavez’s actions led up to the shooting, but the
violence escalated when another man issued a gang challenge to
Palomares (“[D]on’t be touching Evil”) after Palomares tried to
push Chavez away from Maszano, and then the man hit

13
Palomares, and Palomares threw punches in response. Because
there were multiple independent causes of the murder, the
superior court will need to determine whether Chavez’s conduct
was a substantial factor in causing Rodriguez to shoot DeAvila.
(People v. Trout-Lacy, supra, 43 Cal.App.5th at p. 372; People v.
Holmberg, supra, 195 Cal.App.4th at pp. 1321-1322.) We remand
for the superior court to hold a restitution hearing, at which the
People will have the burden of proving Chavez’s assault supports
the victim restitution award. (See People v. Giordano (2007)
42 Cal.4th 644, 664 [“The burden is on the party seeking
restitution to provide an adequate factual basis for the claim.”].)

C. The Trial Court Erred in Imposing Up to a Three-year
Parole Term
Chavez contends, the People concede, and we agree that the
trial court erred in imposing up to a three-year parole term.
Effective January 1, 2019, section 1170.95, subdivision (g),
provides that “[t]he judge may order the petitioner to be subject
to parole supervision for up to three years following the
completion of the sentence.” But section 3000.01, which became
effective on August 6, 2020, clarifies that persons released from
state prison on or after July 1, 2020 and “sentenced to a
determinate term shall be released on parole for a period of two
years.” (§ 3000.01, subds. (a), (b)(1).)
In People v. Tan (2021) 68 Cal.App.5th 1, the defendant
was convicted of robbery and first degree murder, but after the
superior court granted the defendant’s petition for resentencing
under 1170.95, the court vacated his murder conviction,
resentenced him for robbery, and placed him on parole for three
years. The Court of Appeal reversed the three-year parole term
as unauthorized, concluding section 3000.01 unambiguously

14
provides for a maximum parole term of two years (with limited
exceptions not applicable here)7 for any person who is sentenced
to a determinate term and released from prison after July 1,
2020. (Tan, at pp. 5-6.) The Court of Appeal explained
section 3000.01 did not conflict with section 1170.95 because it
“was enacted after section 1170.95 and specifically states that it
applies ‘notwithstanding any other law . . . .’ [Citations.] We
presume that the Legislature, when drafting this language, knew
that it had enacted section 1170.95 the year before and intended
to maintain a consistent body of rules.” (Tan, at p. 7.)
We find the reasoning in People v. Tan, supra,
68 Cal.App.5th at page 7, to be persuasive. Because Chavez was
sentenced to a determinate term and released from state prison
after July 1, 2020, the maximum period of parole the superior
court could impose was two years. (§ 3000.01, subds. (a), (b)(1).)
Accordingly, on remand the superior court must reduce Chavez’s
period of parole to a maximum of two years.

7 Section 3000.01, subdivision (d) provides that the two-year
parole term does not apply to “[a]n inmate currently incarcerated
for an offense that will require the person to register as a sex
offender” and “[i]nmates whose parole term at the time of the
commission of the offense was less than the parole term
prescribed in subdivision (b).”

15
 DISPOSTION

We modify Chavez’s sentence to reflect a two-year parole
term and satisfaction of the restitution fine, suspended parole
revocation restitution fine, and DNA penalty assessment in full.
We conditionally affirm the judgment as modified. We remand
for the trial court to hold a restitution hearing to determine
whether the People can meet their burden to show Chavez’s
assault of Maszano was a substantial factor in causing the
murder of DeAvila. If the trial court determines at the
restitution hearing that the assault conviction does not support
the prior restitution award, the court should vacate the prior
restitution award. Following the restitution hearing, the
superior court is directed to prepare a corrected abstract of
judgment reflecting all fines and fees imposed (and those that are
satisfied) and any restitution award, and to forward it to the
Department of Corrections and Rehabilitation.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

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