Filed 11/22/21 P. v. Zuniga CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074958
v. (Super.Ct.No. INF065236)
ROGELIO LEON ZUNIGA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorney Generals, Lance E. Winters, Julie L.
Garland, Assistant Attorney General, Daniel Rogers, Christopher P. Beesley, and Kristen
Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
A jury convicted defendant and appellant Rogelio Leon Zuniga of first degree
murder with robbery special circumstances under Penal Code 1 sections 187, subdivision
(a) and 190.2, subdivision (a)(17). On February 1, 2013, the trial court sentenced
defendant to one year plus life in prison without the possibility of parole.
After defendant appealed, we affirmed the judgment in People v. Dunson et. al.
(Feb. 26, 2015, No. E056565 [nonpub. opn.]).
On July 26, 2019, defendant filed a petition for resentencing under section
1170.95. Defendant argued that he could not be convicted of murder today pursuant to
the statutory changes pursuant to SB 1437. The People filed an opposition and argued
that section 1170.95 was unconstitutional and defendant’s robbery-murder special
circumstance made him ineligible for relief. The trial court stayed the matter pending the
outcome of two cases determining the constitutionality of SB 1437. Defendant filed a
reply in support of his petition to preserve his arguments on the constitutionality of SB
1437.
On November 22, 2019, the trial court lifted the stay.
On February 14, 2020, by oral motion, the People moved to have the petition
dismissed because defendant’s jury found true a robbery-murder special circumstance,
the court sentenced defendant to life without the possibility of parole, and the court
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
instructed the jury with CALCRIM No. 703, which required the jury to find that
defendant acted with intent to kill or was a major participant with reckless indifference.
The court granted the People’s motion to dismiss the petition.
On March 18, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY2
In November 2007, Jackie Dunson and her brother Robert Dunson lived in the
ground floor apartment of a two-story duplex in Indio. Ronald Handwerk occasionally
stayed with them. Defendant and his girlfriend, M.J., lived in the apartment above the
Dunsons’ apartment. Fernando Benavidez was Jackie’s boyfriend and visited at the
apartment occasionally. Jackie sometimes would engage in prostitution and Benavidez
would bring her clients, or “dates.” In November 2007 Robert, Jackie, M.J., Handwerk,
Benavidez, and defendant hung out together and smoked methamphetamine in the
Dunsons’ apartment on most days.
On November 25, 2007, M.J., Benavidez, Robert, defendant, Handwerk, and
Jackie were at the Dunsons’ apartment. Benavidez offered to find someone to bring back
to the apartment to have sex with Jackie. Robert did not want his sister to engage in sex
for money, so he proposed that they bring a man “back to the apartment, beat his ass, rob
him, and take all of his shit.” Jackie nodded her head in agreement. Defendant and
2 The facts are taken from our unpublished opinion in case No. E056565. An
unpublished case may be cited for the purpose of providing a factual background.
(Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th
897, 907, fn. 10.)
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Handwerk said nothing. Benavidez left the apartment to find someone and M.J. and
defendant went back to their upstairs apartment.
A surveillance videotape from the Spotlight 29 casino, which was approximately
five minutes from the Dunsons’ apartment, showed Benavidez entering the casino just
after midnight during the morning of November 26, 2007. He eventually was able to
persuade the victim, William Dobbs, to come with him to the Dunsons’ apartment. They
drove together in Dobbs’s car.
At some point that night or early morning, M.J. woke to the voice of a man in the
Dunsons’ apartment screaming: “Oh, God. Please help me.” M.J. described the
screaming as “gut wrenching,” “like someone is in pain, like they were hurt [and]
screaming for someone to help them.” She also heard “very loud” sounds of banging on
a wall downstairs, “like something pretty heavy slamming up against the wall.”
Defendant told M.J. to go back to sleep. Handwerk went upstairs, woke defendant and
told him to go downstairs because he had broken someone’s ribs and Handwerk’s hand
was “messed up.” M.J. went back to sleep.
In the predawn hours of November 26, 2007, T.S., who was friends with Robert
and Jackie, walked to the Dunsons’ apartment. As she approached, she saw Benavidez
walking away from the apartment. When she got closer to the apartment, she heard
Jackie arguing, yelling, and crying. T.S. heard Jackie say, “he was acting stupid,” and
“[h]e doesn't want to give [the money] to her.” A side door to the apartment was ajar. As
T.S. passed by that door, she heard Robert yelling loudly and angrily, “ ‘[g]et down,
mother fucker’ ” and “[t]hese better be the right PIN numbers.” T.S. watched Robert
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push a man to his knees. The man appeared to have blood under his chin. Robert then
put a plastic bag over the man’s head and used duct tape to secure the bag to the man’s
neck and face. T.S. decided to leave. As she left, she heard Robert say: “Come on,
mother fucker. We’re going for a ride.”
Robert recruited defendant to help him. Jackie watched as defendant and Robert
drove off with Dobbs in Dobbs’s car. M.J. asked for defendant, and Jackie told her that
he and Robert had to go somewhere but that they would back.
M.J. went downstairs to the Dunsons’ apartment the morning of November 27.
Robert was kneeling in a corner of the living room scrubbing the walls with bleach and
pulling up the carpet. He gave M.J. a bank card and a piece of paper with a PIN number
written on it and told her to pull out as much money as she could and bring it back to
him. Between 10:26 a.m. and 11:39 a.m. on November 27, M.J. and defendant used
Dobbs’s bank card to retrieve approximately $1,000 from different ATMs. When she
and defendant returned to the Dunsons’ apartment, she gave him $300, the bank card, and
the piece of paper with the PIN number. M.J. kept the remaining cash.
Dobbs’s body was found on November 27 two miles from the Spotlight 29 casino;
he had a black bag attached to his neck with red tape. He had been stabbed with a sharp
instrument 14 times, mostly on his face and neck. His internal and external jugular veins
and carotid artery were severed, and his trachea was also severed. He had bruises and
abrasions on his face and scalp, and signs of blunt force trauma to his chest. He had four
broken ribs, which caused ruptures to his liver and lung. The forensic pathologist who
performed the autopsy on Dobbs described the injuries as “brutal,” and said it “looked
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like perhaps some injuries were inflicted for the purpose of torture” and for “causing
pain.”
Dobb’s car was found on December 1, 2007, approximately 100 yards from the
Dunson’s apartment. (People v. Dunson, 2015 Cal.App. Unpub. LEXIS 1445, *3-12)
DISCUSSION
A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE
FOR RELIEF UNDER SECTION 1170.95
Defendant contends that the trial court erred in finding him ineligible for relief
under section 1170.95 without issuing an order to show cause and conducting an
evidentiary hearing. For the reasons set forth post, we find that the trial court properly
found defendant ineligible for relief under section 1170.95. 3
1. LEGAL BACKGROUND
Effective January 1, 2019, Senate Bill 1437 (SB 1437) was enacted to “amend the
felony-murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) It accomplished this by amending section 188, which defines malice, to add a
requirement that all principals to a murder must act with express or implied malice to be
3
In People v. Lewis (2021) 11 Cal.5th 952, 972-973, the California Supreme
court addressed the appropriate stage in section 1170.95 proceedings for appointment of
counsel. This is not an issue in this case because the trial court appointed counsel for
defendant.
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convicted of that crime. (Id., § 2, subd. (a).) It also amended section 189, which defines
the degrees of murder, by adding a condition to the felony-murder rule. Henceforth, in
order to be convicted of felony murder, a defendant who was neither the actual killer nor
a direct aider and abettor to the murder must have been a major participant in the
underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch.
1015, § 3, subd. (d)(3); see Lewis, supra, 11 Cal.5th at pp. 959-960; People v. Martinez
(2019) 31 Cal.App.5th 719, 723.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
[Sen. No. 1437] added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.) Thus, section 1170.95 allows those
“convicted of felony murder or murder under a natural and probable consequences theory
[to] file a petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95,
subd. (a).) The section goes on to describe what must be included in a petition for
resentencing, and sets forth the procedure to be followed by a trial court upon receiving
such a petition.
In its initial review of whether a petitioner has made a threshold showing that he
or she falls within the provisions of section 1170.95, the court examines whether the
petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory
pleading was filed against him or her allowing prosecution under the felony-murder rule
or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she
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was convicted of first or second degree murder following a trial, or pleaded guilty to first
or second degree murder in lieu of a trial at which he could have been so convicted (id.,
subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree
murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).
If the petitioner meets this facial showing of eligibility, the court must appoint
counsel and entertain briefing from the prosecutor and appointed counsel. If, after
briefing, the petitioner has established a prima facie case he or she is entitled to relief,
i.e., if a showing regarding his or her eligibility has been made, the court must issue an
order to show cause, and thereafter hold a full hearing to determine whether petitioner is
entitled to relief. (§ 1170.95, subds. (c) & (d)(1); see also Lewis, supra, 11 Cal.5th at pp.
959-960.) “If the trial court determines that a prima facie showing for relief has been
made, the trial court issues an order to show cause, and then must hold a hearing ‘to
determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not . . . previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence to meet their respective
burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Lewis, at p. 960.)
We apply a de novo standard of review to a lower court’s denial of a defendant’s
section 1170.95 petition. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, fn. 8
8
(Verdugo), review granted March 18, 2020, S260493; cf. People v. Blackburn (2015) 61
Cal.4th 1113, 1123 [statutory construction questions are reviewed de novo].)
2. ANALYSIS AND APPLICATION
In this case, a jury convicted defendant of first degree murder as an aider and
abettor, and a robbery special circumstance was found true. After defendant appealed
and we affirmed the judgment, defendant filed a section 1170.95 petition. At the hearing
on the petition, the People moved to dismiss the petition because the jury found true that
the robbery-murder special circumstance required the jury to find defendant intended to
kill or was a major participant who acted with reckless indifference to human life. The
trial court agreed with the People and dismissed defendant’s section 1170.95 petition.
On appeal, defendant contends that “the trial court erred in dismissing the petition
because the findings on the robbery-murder special circumstance allegation were made
prior to the Banks and Clark decisions,[4] therefore the matter should be reversed and
remanded with instructions to issue an order to show cause under section 1170.95.” (All
caps. omitted.)
Recently, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted
January 27, 2021, S265854, this court rejected a similar contention. (Id. at pp. 482-485.)
In Jones, we held that “[a] petitioner with a pre-Banks/Clark finding faces the same bar to
relief under section 1170.95 as a petitioner with a post-Banks/Clark finding. This is
because Banks and Clark did not create a new rule of law, but rather ‘clarified’ the
4 People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63
Cal.4th 522 (Clark).
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already-existing meaning of the phrases ‘major participant’ and ‘reckless indifference to
human life’ for purposes of special circumstance allegations under section 190.2,
subdivision (d).” (Id. at p. 482.) Therefore, “a special circumstance finding under
section 190.2, subdivision (d) [renders a petitioner ineligible] for relief under section
1170.95 as a matter of law. This is because a jury has already found them to have
satisfied the new definition of felony murder under amended section 189. Although they
were not the actual killer, a jury found them to have been a major participant in the
underlying felony who acted with reckless indifference to human life.” (Id. at p. 482.)
We recognize that there is a split of authority on (1) whether a defendant must first
seek relief under Banks/Clark through a habeas petition before filing a section 1170.95
petition (Jones, supra, 56 Cal.App.5th at pp. 482-483). We also recognize that the issue
of whether a felony-murder special circumstance finding under section 190.2, subdivision
(a)(17), made before Banks and Clark, precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95, is currently pending before the
Supreme Court. (People v. Strong (Dec. 18, 2020, C091162) [2020
Cal.App.Unpub.LEXIS 8505], review granted March 10, 2021, S266606.)
Courts, including this court, which have held that a pre-Banks and Clark felony-
murder special circumstance finding bars section 1170.95 resentencing relief, have
reasoned that Banks and Clark merely clarified the law as it always was. (Jones, supra,
56 Cal.App.5th at pp. 482-484; accord, People v. Nunez (2020) 57 Cal.App.5th 78,
review granted January 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th
449.) These courts further note that our Supreme Court does not require juries to be
10
instructed on the Banks and Clark clarifications. “Rather, while CALCRIM No. 703 now
includes optional language drawn from Banks and Clark regarding the factors a jury may
consider, ‘[t]he bench notes to the instruction state that Banks “stopped short of holding
that the court has a sua sponte duty to instruct on those factors,” and Clark “did not hold
that the court has a sua sponte duty to instruct on those factors.” ’ ” (Nunez, at pp. 92-93;
accord, Jones, at p. 484; Allison, at pp. 458-459.) Thus, these courts found “no basis to
conclude as a general matter that a pre-Banks and Clark jury was instructed differently
than a post-Banks and Clark jury, or resolved different factual issues, answered different
questions, or applied different standards.” (Nunez, at p. 94.)
These courts have also held that an attack on a special circumstance finding in a
section 1170.95 proceeding effectively constitutes a collateral attack on the judgment.
(People v. Galvan (2020) 52 Cal.App.5th 1135, 1142, review granted October 14, 2020,
S264284; People v. Gomez (2020) 52 Cal.App.5th 1, 16.) According to these courts, a
petitioner who wishes to argue the special circumstance finding is invalid under current
law must first seek to invalidate that finding through a petition for writ of habeas corpus
before seeking resentencing pursuant to section 1170.95. (Galvan, at p. 1142; Gomez, at
p. 17; Jones, supra, 56 Cal.App.5th at p. 485.) These courts reason that a contrary
interpretation “would read into section 1170.95 a new procedure allowing petitioners to
ignore a special circumstance finding—no matter how well supported in the record—as
well as the recognized method of challenging it. Such petitioners would be allowed to
relitigate a prior jury finding at an evidentiary hearing where the prosecution bears the
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burden of proving the truth of the finding, beyond a reasonable doubt, a second time.”
(Jones, supra, 56 Cal.5th at p. 485.)
Moreover, “in the wake of Banks and Clark, no mandatory language was added to
the CALCRIM instructions on special circumstances under section 190.2, subdivision
(d). Optional language describing the Banks and Clark factors was added. (CALCRIM
No. 703.) . . . [¶] [However,] the optional language that was added to the CALCRIM
instructions in light of Banks and Clark does not require the jury to consider any
additional questions or resolve any additional issues. As to reckless indifference, the
optional language states, ‘When you decide whether the defendant acted with reckless
indifference to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine whether the defendant
acted with reckless indifference to human life. Among the factors you may consider are,’
followed by a list of the factors identified in Clark. (CALCRIM No. 703.) The optional
language concerning major participant is identical. The only requirement imposed on the
jurors is that they consider all the evidence. Everything else is optional (the jury ‘may’
consider the listed factors, among others). (CALCRIM No. 703.) [¶] . . . The issues
resolved and questions answered by juries before and after Banks and Clark will be
exactly the same.” (Jones, supra, 56 Cal.App.5th at pp. 486-487 (conc. opn. of
Menetrez, J.).)
On the other hand, other courts that have found a special circumstance finding
insufficient to render a petitioner ineligible for relief have reasoned that Banks and Clark
“construed section 190.2 in a significantly different, and narrower manner than courts had
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previously construed the statute.” (People v. Torres (2020) 46 Cal.App.5th 1168, 1179,
review granted June 24, 2020, S262011; accord, People v. Harris (2021) 60 Cal.App.5th
939, 958, review granted April 28, 2021, S267802.) Thus, these courts surmised that a
petitioner with a pre-Banks and Clark special circumstance finding may have been
convicted based on “conduct that is not prohibited by section 190.2 as currently
understood.” (Torres, at p. 1180; accord, Harris, at p. 948; People v. York (2020) 54
Cal.App.5th 250, 258, review granted November 18, 2020, S264954; People v. Smith
(2020) 49 Cal.App.5th 85, 93, review granted July 22, 2020, S262835.) To the extent the
jury’s finding on a felony-murder special circumstance is legally insufficient under Banks
and Clark, it cannot refute a prima facie showing of entitlement to resentencing relief.
(People v. Secrease (2021) 63 Cal.App.5th 231, 256.) Accordingly, in considering
whether a petitioner is entitled to relief pursuant to section 1170.95, the trial court must
first determine whether “the evidence presented at trial was sufficient to support the
felony-murder special-circumstance finding under Banks and Clark.” (Secrease, at p.
264.)
Notwithstanding the conflict in authority between the courts of appeal, unless and
until the Supreme Court tells us otherwise, we adhere to our opinion in Jones, supra, 56
Cal.App.5th 474. (Cal. Rules of court, rule 8.1115(e).) However, as we suggested in
Jones, supra, at pages 478 through 479, a person in defendant’s position is not wholly
without a remedy. He or she may challenge prior special circumstance findings in a
habeas proceeding. (See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 676-683.) We
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express no opinion as to whether in defendant’s case there might be some procedural bar
to such a proceeding at this point.
Therefore, we conclude that the trial court properly dismissed defendant’s section
1170.95 petition.
DISPOSITION
The order dismissing defendant’s section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.
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