People v. Avena CA2/3

Filed 8/16/21 P. v. Avena CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307362
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A362244
v.
CARLOS AVENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Affirmed.
James M. Crawford, 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, Paul M. Roadarmel, Jr. and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Carlos Avena was resentenced to two life terms
without the possibility of parole. On appeal, he contends the trial
court erred by failing to award him presentence worktime credits.
We disagree and affirm the judgment.
BACKGROUND
1. Factual and Procedural History
In 1981, Avena was convicted and sentenced to death by a
jury on two counts of first degree murder for killings he
committed during a carjacking in 1980.1 (Pen. Code, § 187; all
further undesignated statutory references are to this code.) He
was also convicted of robbery, attempted robbery, two counts of
assault with a deadly weapon, and two counts of assault with
intent to commit murder. (§§ 211, 664/211, 245, subd. (a), and
former § 217.) In 1996, the California Supreme Court vacated one
special circumstance finding but otherwise affirmed the guilt and
penalty judgments in their entirety. (Avena I, supra, 13 Cal.4th
at p. 408.)
In 2019, the Ninth Circuit held that “the California
Supreme Court was objectively unreasonable in concluding that
Avena failed to show prejudice and denying Avena’s claim for
ineffective assistance of counsel at the penalty phase.” (Avena II,
supra, 932 F.3d at p. 1253.) Accordingly, it reversed the judgment
1The facts and procedural history are drawn from the California
Supreme Court’s opinion in Avena’s direct appeal (People v.
Avena (1996) 13 Cal.4th 394 (Avena I), and the Ninth Circuit’s opinion
reversing the district court’s denial of Avena’s habeas corpus petition.
(Avena v. Chappell (9th Cir. 2019) 932 F.3d 1237 (Avena II).)
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of the district court on the certified claim of ineffective assistance
of counsel at the penalty phase, and instructed the district court
“to grant the Writ of Habeas Corpus as to Avena’s sentence
unless the state court resentences Avena within a reasonable
time to be determined by the district court.” (Ibid.)
2. Avena’s Resentencing, Appeal, and Request for
Conduct Credits
After the case was remanded from the district court, the
People elected not to retry the penalty phase. On June 26, 2020,
the superior court vacated Avena’s death sentence and
resentenced him to two life terms without the possibility of parole
for the first-degree murder convictions. At Avena’s resentencing
hearing, the issue of calculating his presentence credits was
raised by the court. Based on defense counsel’s calculations, the
court awarded Avena 14,531 presentence credits for actual time
served. Neither side mentioned conduct or worktime credits, and
the court did not award Avena any conduct or worktime credits.
On August 21, 2020, Avena filed a timely notice of appeal.
During the pendency of the appeal, Avena’s appellate
counsel submitted a letter to the superior court pursuant to
People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel
(2002) 103 Cal.App.4th 516, requesting that the court award
Avena pretrial conduct credits. On February 16, 2021, the court
denied the request.2
2 At Avena’s request, we augmented the record to include the letter
and the court’s minute order denying the request for conduct credits.
Although he did not appeal the court’s February 2021 ruling, we
address the merits of Avena’s contentions. (See People v. Delgado
(2012) 210 Cal.App.4th 761, 763 [section 1237.1 “does not preclude a
defendant from raising, as the sole issue on an appeal, a claim his or
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CONTENTIONS
Avena challenges the trial court’s failure to award him
presentence worktime credits. Specifically, he contends that
because he committed the murders before the enactment of
section 2933.2, he should have received worktime credits in
addition to his actual presentence custody time of 14,531 days.
The People agree that section 2933.2 applies only to offenses
committed after the statute’s effective date. They contend,
however, that based on former section 4019 and other provisions,
Avena was not entitled to receive conduct credits.
DISCUSSION
A defendant sentenced to prison for criminal conduct is
entitled to credit against his term for all actual days of
presentence and postsentence custody and while in prison
custody, “can earn postsentence good behavior/worktime credits
(§ 2931) or prison worktime credits (§ 2933) to shorten the period
of incarceration.” (People v. Cooper (2002) 27 Cal.4th 38, 40.)
“ ‘Conduct credit’ collectively refers to worktime credit … and to
good behavior credit pursuant to section 4019, subdivision (c).”
(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Section 2933.2 prohibits any person convicted of murder
from accruing any presentence conduct or worktime credit. The
statute applies, however, only to offenses committed after its
effective date of June 3, 1998. (§ 2933.2, subd. (d), as approved by
voters (Prop. 222) June 2, 1998; see People v. Hutchins (2001) 90
her presentence custody credits were calculated pursuant to the wrong
version of the applicable statute”].)
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Cal.App.4th 1308, 1317 (Hutchins).) Because Avena committed
his crimes in 1980, we agree with the parties that section 2933.2
does not apply in this case. Avena, however, was not entitled to
presentence custody credits under other statutory provisions.
“Section 4019 sets forth a statutory scheme for presentence
custody credits.” (People v. Adams (2004) 115 Cal.App.4th 243,
262 (Adams).) The current version of section 4019 specifies that it
applies only to offenses committed on or after October 1, 2011.
(§ 4019, subd. (h).) Section 4019 provides that conduct credits for
offenses committed prior to October 1, 2011, should be calculated
“at the rate required by the prior law.” (Ibid.)
In 1980, section 4019 provided that “a defendant shall
receive one-for-six days’ credit for ‘good behavior’ (subd. (c)) and
one-for-six days’ credit for ‘work time’ (subd. (b)) for prisoners
‘confined in or committed to a county jail … , including all days of
custody from the date of arrest to the date on which the serving
of the sentence commences, under a judgment of imprisonment,
or a fine and imprisonment until the fine is paid in a criminal
action or proceeding.’ ([Former] § 4019, subd. (a)(1), as amended
by Stats. 1978, ch. 1218, § 1, p. 3941.) Section 2931 provided that
a defendant who makes bail or is released on his own
recognizance, then is tried, convicted of a felony, and sentenced to
state prison receives conduct credit against his full sentence.”
(Adams, supra, 115 Cal.App.4th at pp. 262–263.)
When Avena committed his crimes, former section 4019
applied to a prisoner confined in jail under a judgment of
imprisonment “only when sentenced in a misdemeanor
proceeding.” (People v. Sage (1980) 26 Cal.3d 498, 504 (Sage).)
And, by its express terms, section 2931 applied to felony
defendants who were released pretrial. That is, “[o]nly the
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presentence detainee eventually sentenced to prison did not
receive conduct credit against his full sentence because he is
denied credit for his presentence confinement. Thus, in [1980] at
the time of [Avena’s] offense[s], there was no express statutory
entitlement for felons awaiting trial to receive presentence
conduct credits.” (Adams, supra, 115 Cal.App.4th at p. 263.)
To be sure, in Sage, the California Supreme Court held that
principles of equal protection required awarding presentence
conduct credits to detainees awaiting trial on felony offenses in
county jail. (Sage, supra, 26 Cal.3d at p. 508.) The Sage holding,
however, did not extend to felons sentenced to an indeterminate
life term. As explained in People v. Garcia (1981) 115 Cal.App.3d
85, “section 2931, by its terms, applies only to persons sentenced
pursuant to Penal Code section 1170. Appellant was sentenced to
a term of straight life imprisonment pursuant to former Penal
Code section 190 and Penal Code section 1168, subdivision (b). [¶]
At the time that appellant committed her offense there was no
statutory provision for awarding life prisoners conduct credits.
(See former § 190, Stats. 1977, ch. 316, § 5, pp. 1256–1257.) Thus,
there was no arbitrary discrimination between classes of life
prisoners. The legislative distinction made was between persons
sentenced to straight life imprisonment and other felons.” (Id. at
pp. 112–113, fn. omitted, disapproved on another ground
in People v. Marsh (1984) 36 Cal.3d 134, 141.)
“Other provisions of the Penal Code dealing with good
time/work time credits were in accord. At the time of [Avena’s]
offense[s], section 2900.5 (added by Stats. 1971, ch. 1732, § 2)
required the trial court to award conduct credits under section
4019 as against a ‘term of imprisonment.’ Section 2900.5,
subdivision (c) defined ‘term of imprisonment’ to include ‘any
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period of imprisonment including any period of imprisonment
prior to release on parole and any period of imprisonment and
parole, prior to discharge, whether established or fixed by
statute, by any court, or by any duly authorized administrative
agency.’ This definition excluded sentences without the
possibility of parole.” (Adams, supra, 115 Cal.App.4th at p. 264.)
Avena’s reliance on People v. Chism (2014) 58 Cal.4th 1266and Hutchins is misplaced. Chism held that section 2933.2, which
as we noted limits presentence conduct credits, applies only to
crimes committed after June 3, 1998. (Chism, at p. 1336.) The
defendant in Chism committed his crimes in 1997 and was
awarded conduct credits based on the 1982 version of section
4019. (Chism, at p. 1336.) And the Hutchins court held that
under the May 1998 version of section 190—i.e., prior to the
passage of Proposition 222 in June 1998—the defendant might be
entitled to presentence conduct credits. (Hutchins, supra, 90
Cal.App.4th at p. 1317.) Unlike the defendants in Chism and
Hutchins, Avena committed his crimes in 1980 when sections
4019 and 190 did not allow him to earn presentence conduct
credits.
In sum, Avena has not shown he was entitled to
presentence conduct credits under the existing statutory scheme.
Rather, his commission of the murders in 1980, and original
death sentence and subsequent sentence of life in prison without
the possibility of parole, rendered him statutorily ineligible for
conduct credits. Thus, the court did not err.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
HILL, J.*
* Judgeof the Santa Barbara County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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