P. v. Zavala CA2/6

Filed 12/22/15 P. v Zavala CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262421 (Super. Ct. No. 2013000274) Plaintiff and Respondent, (Ventura County)

v.

JUAN CARLOS ZAVALA,

Defendant and Appellant.

Juan Carlos Zavala appeals a judgment after conviction by plea of guilty to two counts of offering to sell an assault weapon (Pen. Code, § 30600, subd. (a))1 and one count of offering a handgun for sale (§ 27500, subd. (a)). He admitted a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 459, 460.) He agreed to a 14- year prison term, and received it, but now contends the sentence should not have been configured as a second-strike. We affirm. BACKGROUND On October 8, 2012, Zavala sold a M1 carbine rifle to a confidential informant. Two days later, Zavala sold him a Walther P22 handgun. Two weeks later, Zavala sold two "AK-47 style" rifles and four high-capacity magazines to an informant and an undercover deputy sheriff. When he was arrested, Zavala had a handgun and a live round of ammunition in his car. Zavala has a 1998 felony conviction for robbery.

1 All statutory references are to the Penal Code.

An information charged Zavala with six felony counts of possessing and offering to sell weapons and ammunition. (§§ 30600, subd. (a), 32310, 27500, subd. (a), 30305, subd. (a).) Each count alleged his prior strike. (§§ 211, 667, subd. (c)(1), 667, subd. (e)(1), 1170.12, subds. (a)(1), (c)(1).) Zavala pled guilty to two counts of selling assault weapons and one count of selling a handgun to a person prohibited by law from possessing it, with a maximum agreed-upon sentence of 14 years in state prison. As a term of the plea agreement, he admitted his prior strike and agreed: "Because I am admitting a prior strike conviction, I may accrue prison worktime credit not to exceed 20 percent of the total term of imprisonment." Zavala acknowledged that the maximum term for his offenses was 22 years. At the sentencing hearing, defense counsel stated that "[t]he People have . . . threatened . . . not to dismiss any counts if the Court deviates from their 14-year mandate." The trial court sentenced Zavala to a 14-year term in which each term was doubled for the strike. It consisted of a four-year term (the low term), doubled to eight, for the first count (§ 30600, subd. (a)); a two-year term (one-third the midterm) doubled to four years for the second count (ibid.); and a one-year term (one-third the midterm) doubled to two years for the third count (§§ 27500, 667, subd. (e)(1), 1170.12, subds. (a)(1), (c)(1)). The trial court denied Zavala's motion to strike his prior strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero).) The court said, "I don't see any reason to strike the strike[]." It acknowledged that Zavala is a "good father and a good provider" and has good qualities, but stated that he is "no stranger to weapons and their use." The court said that in the 1998 robbery offense Zavala intimidated the victim by "threatening to have a gun" and that he was subsequently arrested in 2005 with a loaded nine-millimeter semiautomatic handgun. It said that the weapons Zavala sold "can do [a] serious, serious, serious amount of damage" and that Zavala "had no idea where they were going to end up" when he sold them. Zavala offered to withdraw his plea and plead to "whatever . . . is required" if the trial court would grant his Romero motion. The court responded that, in those