Filed 2 / 14 / 22 (unmodified opinion at tached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL GUTIERREZ ZAMORA,

Defendant and Appellant. G059259

(Super. Ct. No. 16CF1903)

ORDER MODIFYING OPINION

, DENYING PETITION FOR

REHEARING AND

DENYING MOTION

REQUESTING JUDICIAL

NOTICE ; NO CHANGE IN

JUDGMENT

The opinion filed January 14, 2022, is ordered modified as follows:

1. Following the last sentence at the bottom of page 9, add the following in a

separate paragraph:

“Zamora has filed a petition for rehearing, asking us to evalu ate whether he is

entitled to resentencing based on the amended version of Penal Code section

1170, subdivision (b), which became effective on January 1, 2022. We

conclude the issue should be addressed, in the first instance, to the trial

court. We direc t the trial court, on remand, to set a briefing schedule on the

issue, and then to hold a hearing to determine whether Zamora is entitled toadditional sentencing relief based upon the newly amended statute. If the

court concludes Zamora is entitled to su ch relief, it shall resentence him

accordingly. We offer no opinion on the substance of the claim.”

2. Before the sentence “In all other respects the judgment is affirmed” in the

Disposition section on page 10 of the opinion, add the following within the same

paragraph:

“We also instruct the trial court, on remand, to set a briefing schedule to

address Zamora’s contention he is entitled to additional sentencing relief on

the basis of the recent amendment of Penal Code section 1170,

subdivision ( b). The court shall then hold a hearing to determine whether

Zamora is entitled to such relief based upon the newly amended statute. If the

court concludes Zamora is entitled to such relief, it shall resentence him

accordingly.

These modifications do no t affect the judgment.

The petition for rehearing filed January 31, 2022, is DENIED.

As a result of these modifications, appellant’s request for judicial notice is DENIED.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ZELON, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the

Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 1/ 14 /2 2 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL GUTIERREZ ZAMORA,

Defendant and Appellant. G059259

(Super. Ct. No. 16CF1903)

O P I N I O N

Appeal from an order and judgment of the Superior Court of Orange

County, Michael A. Leversen, Judge. Order affirmed. Judgment reversed in part and

remanded with directions.

Avatar Legal and Cynthia M. Jones, under appointment by the Court of

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi,

Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 Following his conviction on several charges, including attempted murder,

kidnapping, and assault with a semiautomatic weapon, Israel Gutierrez Zamora filed a

petition for disclosure of juror identifying information pursuant to Code of Civil

Procedure section 237. 1 After denying the disclosure petition as untimely, the trial court

sentenced Zamora to a total term of 98 years to life. Zamora then filed an appeal

challenging the denial of his petition for disclosure; he also argued there were errors in

his sentence and the abstract of judgment.

As a result of that first appeal, we reversed the order denying the petition,

as well as the challenged aspects of the sentence and abstract, and remanded the case with

directions. ( People v. Zamora (Dec. 20, 2019, G055827) [nonpub. opn.]) ( Zamora 1 ).)

On remand, the court denied Zamora’s disclosure petition on the merits, and corrected the

sentence and abstract as directed.

Zamora now appeals from that second order which denied his disclosure

petition, arguing that the court was statutorily required to release the identifying

information for jurors who did not object to disclosure. We disagree. Section 237

obligates the court to release the information only if none of the jurors protest the

disclosure. If any juror does object, the court must sustain the objection if it concludes

the motion fails to show good cause for the release. That is what occurred in this case.

Six of the twelve jurors objected to disclosure, which triggered the court’s obligation to

determine whether there was good cause for disclosure. After concluding there was not,

the court properly denied the petition.

Zamora also challenges additional asp ects of his sentence that were

imposed when the court resentenced him following our remand. He argues he is entitled

to the benefit of recent changes in the law that rendered certain sentence enhancements

1 All further statutory references are to this code unless otherwise designated.3 imposed under Penal Code section 667.5 inapplicable to this case. The Attorney General

concedes the point and agrees the challenged enhancements must be stricken, rather than

stayed. We also agree and remand the case to the trial court with directions to strike

those sentence enhancements.

FACTS

This is the second appeal arising from the trial court’s denial of Zamora’s

motion for disclosure of juror identifying information and alleged sentencing errors.

Because neither issue relates to the convictions themselves, we incorporate the brief

summary of facts underlying Zamora’s convictions from our prior opinion.

“Zamora’s charges were based on three separate inciden ts involving the

same victim, J. Hernandez. In the first incident, Zamora and Hernandez were drinking

together and got into a fist fight. During the fight, Zamora threatened Hernandez with a

gun and unsuccessfully attempted to force Hernandez into his car; Hernandez escaped.

“The second incident occurred a few months later, when Hernandez was

driving and Zamora walked into the street and began shooting at him, with several bullets

hitting Hernandez’s car. Hernandez crashed and took off running but Zamor a followed

him and told him to get into his car. Hernandez agreed, and the two of them spent the

rest of the day together. Later that evening, Zamora threatened to kill Hernandez.

“The third incident occurred a few weeks later when Zamora went to

Hernandez’s house and threatened to hurt Hernandez or his family if Hernandez talked to

the police.” ( Zamora 1

, supra

, G055827.)

Zamora was charged with nine counts. The jury found him guilty on

counts 1 and 2 (attempted kidnapping and assault with a semia utomatic firearm); not

guilty on count 3 (assault with a deadly weapon

— pliers or screwdriver); guilty on counts

4 and 5 (attempted murder and kidnapping); guilty on counts 6 and 7 (assault with a4 firearm and shooting at an occupied motor vehicle); and guilty on counts 8 and 9

(criminal threats and dissuading a witness or victim by force or fear).

“On January 3, 2018 [two days before the continued sentencing hearing],

Zamora filed a motion to disclose juror identifying information arguing that there was

good cause to disclose the information based on a declaration by Zamora’s sister.

According to her declaration, ‘during one morning break near the beginning of the trial,

I overheard a female juror walking back into the c ourtroom state to another female juror,

“let’s just find him guilty so we can get this over with.” The juror was laughing as she

said it. The second female juror also laughed about it.’” ( Zamora 1

, supra

, G055827.)

The trial court determined Zamora’s motion for disclosure of juror

identifying information was untimely and denied the motion on that basis without

considering its merits; the court then proceeded with Zamora’s sentencing. Zamora

appealed from the court’s conclusion his motion was u ntimely, and also argued the court

made several errors relating to his sentence and the abstract of judgment.

In Zamora 1 , we concluded the request for a disclosure order was not

untimely and remanded the case to the trial court with directions to consider the request

on the merits. ( Zamora 1

, supra

, G055827.) We also instructed the trial court to modify

the sentence and abstract of judgment and directed the court “to prepare amended

minutes and an amended abstract of judgment consistent with all o rdered changes. In all

other respects the judgment is affirmed.” ( Zamora 1

, supra

, G055827.)

Following remand, the court informed counsel it intended to direct the jury

commissioner’s office to give notice to the trial jurors of the potential release of their

personal information; the court then “ordered the Jury Commissioner’s Office to send

notice to the named jurors on the present case notifying them of the release of juror

information pursuant to Code of Civil Procedure 237 and the hearing date of July 17,

2020 at 8:30 AM in Department C39.”5 The jury commissioner’s letter informed jurors the court had made a

tentative decision to release their juror identification information to counsel for both

parties; the letter also told th e jurors they had the right to object to the release, either

personally or in writing, pursuant to section 237, subdivision (c). The jurors were

informed of the date and time of the hearing at which the court would make the final

decision. Six of the jurors objected in writing to the disclosure of identifying

information.

The July 17 hearing was continued to July 28; on July 27, Zamora filed a

supplemental brief arguing that despite the objections of some jurors, he had made a

prima facie showing of go od cause for disclosure of juror identification information. He

pointed out that aside from the specific content of the juror’s statement, the fact that

jurors were discussing the case at all was misconduct

— a direct violation of the court’s

repeated admoni tion directing them not to do so.

The court read and considered Zamora’s supplemental brief; it then denied

the petition. As the court explained at the hearing, “[f]or the court to release juror

information, among the things that the court has to find is t hat the alleged misconduct

must be of such a character as is likely to have influenced the verdict improperly. The

court does not so find.” The court then explained that it is not uncommon for jurors to

joke with each other, and it is apparent from “their body language or what they say or

how they act, whether smiling or laughing,” which is contrasted with what they look like

“as they’re receiving evidence, whether they’re bored or taking the evidence seriously.”

The court viewed the comment described by Zamora’s sister as “a casual comment by

one juror to another [that was] a joke about probably the amount of time that I told them

this case was going to take.”

The court also pointed out that the jury had “asked for two separate

readbacks of t he testimony, which indicates to me that they took their obligation seriously

and examined the evidence and the instructions of the court seriously.” The court also6 stated it believed the evidence in the case “was overwhelmingly towards guilt .” Based

on those factors, “the court does not find that the defense has shown good cause and

refuses then to release the juror information.”

DISCUSSION

1. Governing Law

For all cases in which the jury’s verdict was returned on or after January 1,

1996, the right to obtain the jurors’ personal identifying information is governed by

section 237.

Section 237, subdivision (a)(2), requires that after the verdict is recorded in

a criminal case, the trial jurors’ “personal juror identifying information”

— defined as their

names, addresses, and telephone numbers

— shall be sealed. However, “[a]ny person may

petition the court for access to these records. The petition shall be supported by a

declaration that includes facts sufficient to establish good cause for the re lease of the

juror’s personal identifying information.” (§ 237, subd. (b).)

If the trial court finds that the moving party made a prima facie showing of

good cause, and if it finds no compelling interest against disclosure, it shall set the matter

for hearing. (§ 237, subd. (b).) The trial jurors are entitled to notice of the hearing, an

opportunity to “protest the granting of the petition,” and an opportunity to appear.

(§ 237, subd. (c).)

If none of the jurors object to the petition for disclosure, th e trial court must

grant disclosure following the hearing. However, if one or more jurors does object, the

court must sustain the protest(s) “if, in the discretion of the court, the petitioner fails to

show good cause, the record establishes the presence o f a compelling interest against

disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the

petitioner.” (§ 237, subd. (d).) Moreover, “[t]he court shall set forth reasons and make

express findings to support the granting or denying of the petition to disclose.” ( Ibid .)7 Trial courts have broad discretion when ruling on a motion to release juror

contact information. ( People v. Russell (2017) 9 Cal.App.5th 1050.) The trial court’s

decision to deny such a request is reviewed for abuse of discretion. ( Id. at p. 1059.)

2. The Court’s Ruling on the Disclosure Motion

Zamora argues the court abused its discretion by refusing to order

disclosure of the juror identifying information for the six jurors who did not object to

disclosure. According to Zamora, section 237 “only blocks the release of contact

information for those jurors who object to release,” and the plain language of the statute

requires the court “to release the information of those jurors who did not object.” Zamora

misreads the statute.

Section 237, subdivision (b), requires the court to set a hearing, and notify

the jurors, if the defendant makes a “prima facie” showing of good cause for disclosure,

unless the court finds a compelling interest a gainst disclosure. But that does not mean the

court has made a finding that good cause exists. It is merely a determination that good

cause potentially exists. “Prima facie evidence is that which will support a ruling in favor

of its proponent if no contro verting evidence is presented. [Citations.] It may be slight

evidence which creates a reasonable inference of fact sought to be established but need

not eliminate all contrary inferences.” ( Evans v. Paye (1995) 32 Cal.App.4th 265,

280

- 281, fn. 13; accord, Anti

- Defamation League of B’nai B’rith v. Superior Court

(1998) 67 Cal.App.4th 1072, 1098.)

The issue of whether good cause exists is ultimately resolved at the

scheduled hearing. Subdivision (c) of section 237 states that “[a]ny affected former juror

may appear in person, in writing, by telephone, or by counsel to protest the granting of

the petition.” A juror’s objection is not limited to the disclosure of his or her personal

information; rather, a juror’s protest can support a denial of the petition in its entirety.

Following the hearing, the court must make the records available as

requested in the petition “unless a former juror’s protest to the granting of the petition is8 sustained.” (§ 237, subd. (d).) So, if no juror protests, the records shall be released as

requested. However, where one or more jurors protest, the court is required to “sustain

the protest” if the court determines “the petitioner fails to show good cause, the record

establishes the presence of a compelling interest against disclosure as defined in

subdivision (b), or the juror is unwilling to be contacted by the petitioner.” (§ 237,

subd. (d).)

Here, in response to the protests of six jurors, the court made a

determination at the hearing that, wh en considered in the wider context of the trial, the

evidence offered by Zamora did not show good cause for disclosure of the juror

identifying information. That is precisely what the statute requires; we find no error.

Zamora relies on Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097,

as well as this court’s decision in DeHoyos v. Superior Court (2020) 50 Cal.App.5th 71,

82, for the proposition that the court cannot “unilaterally prohibit all contact” with jurors.

Those cases are i napposite, as both involved cases in which the jury verdicts were

returned long before the effective date of section 237, and both challenged the validity of

juror “no contact” orders. There is no such order in place here. The court’s denial of

Zamora’s pe tition for disclosure of the juror identifying information does not “prohibit all

contact” with the jurors. It denies him access to sealed records.

Zamora does not make the additional argument that the court’s rejection of

his good cause argument under sec tion 237 was an abuse of discretion. We consequently

need not address that point. We nonetheless observe that, in addition to the facts

highlighted by the court in its ruling, its conclusion is bolstered by the fact the jury found

Zamora not guilty of coun t 3. That verdict is inconsistent with the contention that any

juror chose to “find him guilty so we can get this over with.”

3. Retroactively Unlawful Sentence

Zamora also challenges several sentence enhancements. Specifically,

Zamora explains that “[b]efore appellant’s original sentence, the trial court found9 appellant had suffered one prior felony conviction resulting in prison sentence pursuant to

[Penal Code] section 667.5, subdivision (b), and found appellant had committed three

prior violent felony convictions resulting in prison sentences pursuant to [Penal Code]

section 667.5, subdivision (a). [Citation.] The prison priors resulted from convictions for

remaining in the United States after deportation, making a criminal th reat ([Penal Code]

§ 422), attempted robbery ([Penal Code] §§ 664, 211), and assault ([Penal Code] § 245).

[Citations.] The court imposed but stayed a one

- year enhancement along with three

three

- year enhancements in calculating appellant’s third strike sen tences on Counts 1, 2,

4, 6, 7, and 8.”

Zamora acknowledges the one

- year enhancement imposed (but stayed)

under subdivision (b) of Penal Code section 667.5 was proper when initially imposed

because the subdivision previously applied to any prior prison ter m that did not fall

within subdivision (a). However, he correctly points out that the statute was amended

effective January 1, 2020, to specify that the subdivision (b) enhancements would be

imposed only where the prior prison term resulted from ‘“a sexually violent offense as

defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.”’

(§ 667.5, subd. (b).) That amendment applies retroactively to all defendants whose

judgments were not yet final. ( People v. Herrera (2020) 52 Cal .App.5th 982, 995.)

Because Zamora’s prior prison term was not for a qualifying sexually

violent offense as required under the amended version of Penal Code section 667.5,

subdivision (b), he contends the one

- year enhancement does not apply to this case and

must be stricken as to all counts. Zamora also argues the three

- year enhancements

imposed (but stayed) under Penal Code section 667.5, subdivision (a), are unlawful and

must be stricken because none of the prior convictions relied upon to support them was a

violent felony as specified in subdivision (c) of the statute.

The Attorney General agrees with Zamora on both counts, and so do we.10 DISPOSITION

The order denying Zamora’s petition for disclosure of juror identifying

information is affirmed. We reverse the judgment in part and remand the matter to the

trial court with instructions to strike the sentence enhancements that were imposed (but

stayed) pursuant to Penal Code section 667.5, subdivisions (a) and (b), on counts 1, 2, 4,

6, 7, and 8. In all other respects the judgment is affirmed. The trial court is directed to

prepare an amended abstract of judgment and forward a certified copy to the Department

of Corrections and Rehabilitation.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ZELON, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the

Chief Justice pursuant to article VI, section 6 of the California Constitution.