People v. Avila-Guzman CA5

Filed 3/25/24 P. v. Avila-Guzman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086307 Plaintiff and Respondent, (Super. Ct. No. 18CR-03529B) v.

ANGEL AVILA-GUZMAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and Snauffer, J.

This appeal concerns only custody credits and fines following a resentencing hearing after a prior appeal. Angel Avila-Guzman stands principally convicted of lying- in-wait special circumstance murder and was sentenced to serve life without parole. On appeal, Avila-Guzman contends the abstract of judgment improperly reflects custody credits, a $5,000 parole revocation fine is impermissible, and other fines and fees are not supported by an ability to pay. The People concede both the credits and the parole revocation fine are in error, but dispute the remaining fines and fees. We accept the concessions but grant no relief from the other fines and fees. BACKGROUND1 At the original sentencing hearing, Avila-Guzman was awarded 784 actual days of custody credit. He was “also ordered to pay an $80 court security fee[ and] a $60 criminal conviction fee ….”2 When the issue of ability to pay arose, because Avila- Guzman alleged an inability to pay and work due to his classification in prison, the court reduced its “normal[]” $10,000 restitution fine to $5,000. The court noted it would “reserve jurisdiction over the issue so [it could] revisit it to show that [Avila-Guzman] doesn’t have financial ability” to pay. In the prior appeal, we directed the trial court to “conduct further proceedings,” i.e., whether to retry a vacated gang-related crime enhancement and then resentence Avila-Guzman. We specifically noted the “complaints as to certain [] fines and fees imposed as part of the judgment [were] moot.” (People v. Avila-Guzman (Aug. 23, 2022, F081473) [nonpub. opn.].) At the resentencing hearing now on appeal, the court awarded Avila-Guzman the same 784 actual days of custody credits. As for fines and fees, Avila-Guzman’s counsel