People v. Zamora CA3

Filed 9/10/14 P. v. Zamora CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C073072

v. (Super. Ct. No. CRF120507)

ROBERTO FERNANDEZ ZAMORA,

Defendant and Appellant.

Appointed counsel for defendant Roberto Fernandez Zamora asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief contending his trial counsel rendered ineffective assistance when she advised him “not to take any deals, and that’s what [he] did” and requests his sentence be reversed. We reject this contention. Our review of the record has identified three errors that need to be addressed. First, the reporter’s transcript omits the word “not” from the special jury instruction on flight. This appears to be a clerical error. But even if the word was omitted in the court’s

1

reading, the written instruction is correct and we conclude it is not reasonably likely any juror misunderstood the instruction. Second, the trial court erroneously awarded defendant conduct credit pursuant to Penal Code section 4019.1 The judgment must be modified to award conduct credit pursuant to section 2933.1. Third, the judgment must be modified to impose the mandatory criminal conviction assessment and court operations fee. As modified, the judgment is affirmed. FACTS A jury found defendant Roberto Fernandez Zamora guilty of eight counts of lewd and lascivious acts with a child under age 14. (§ 288, subd. (a).) He was sentenced to prison for 16 years, awarded 358 days’ custody credit and 53 days’ conduct credit, and ordered to pay a $240 restitution fine (§ 1202.4) and a $240 restitution fine suspended unless parole is revoked (§ 1202.45). Prosecution Case-in-Chief Y. was born in 1999 and was age 13 at the time of trial. In January 2012, she resided in Woodland with her 25-year-old sister and guardian, Jessica. Jessica’s sons, J. age nine and A. age three, also resided there. A.’s father, J.M., stayed there temporarily as well. When J.M. was present, Y. would sleep in J.’s room, sometimes on the floor and sometimes in the bed. Defendant is the brother of Jessica and Y. For a few weeks in January 2012, he resided with his siblings because his wife had evicted him from their residence. Y. had been on good terms with defendant and would talk to him about things that were bothering her or making her mad. On multiple occasions during his stay, defendant rubbed Y.’s bare feet for a few seconds using both of his hands. The rubbing made Y. feel uncomfortable.