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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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