People v. Zuniga CA2/4 ( 2022 )

Filed 12/13/22 P. v. Zuniga CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B306037
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA114995)
v.
PEDRO HUERTA ZUNIGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Reversed and
remanded with directions.
Richard Lennon and Jennifer Peabody, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Charles S. Lee and
David A. Wildman, Deputy Attorneys General, for Plaintiff
and Respondent.
________________________________________
INTRODUCTION
In 2020, appellant Pedro Huerta Zuniga filed a petition
for relief under Penal Code section 1170.95.1 After the
People filed an opposition, the superior court denied
appellant’s petition without appointing counsel or awaiting a
reply. In a prior opinion, we reversed the superior court’s
denial, remanding with directions to appoint counsel on
appellant’s behalf, to permit appellant to file a reply to the
People’s opposition to appellant’s petition, to consider such
reply if filed, and to otherwise proceed as set forth in section
1170.95. (People v. Zuniga (July 21, 2021, B306037) 2021
Cal.App.Unpub. LEXIS 4713 (Zuniga I).) At the People’s
request, our Supreme Court granted review and
subsequently transferred the matter back to this court with
directions to vacate our prior decision and reconsider the
matter in light of People v. Strong (2022) 13 Cal.5th 698(Strong). Having done so, and having reviewed the parties’
supplemental briefs, we again conclude the superior court
erred. We therefore reverse and remand with the same
directions as before.
1 Undesignated statutory references are to the Penal Code.
2
STATEMENT OF RELEVANT FACTS
A. The Underlying Case
In 2012, appellant (along with co-defendants Hector
Aguilar Arciga and Francisco Argenis Parra) was charged
with the April 2009 murder of Carlos Zarate (§ 187, subd.
(a)), the attempted murder of Manuel Rojas (§§ 664/187,
subd. (a)), assault with a deadly weapon on Rojas (§ 245,
subd. (b)), the home invasion robbery of Zarate, Rojas, Jesus
Vasquez, and Martha Gutierrez (§ 211), and first degree
burglary (§ 459). Additionally, appellant and Arciga were
each charged with being a felon in possession of a firearm
(former § 12021, subd. (a)(1)).2 As relevant here, the
information additionally alleged that appellant personally
used a firearm in the commission of some of the charged
offenses (§ 12022.53, subd. (b)); that appellant personally
and intentionally discharged a firearm and caused great
bodily injury or death to Zarate (§ 12022.53, subd. (d)); that
appellant personally inflicted great bodily injury on Zarate
(§ 12022.7, subd. (a)); and that appellant committed the
murder while he was committing robbery and burglary
(§ 190.2, subd. (a)(17)). A jury was eventually instructed
that it was not to consider the robbery/burglary–special
circumstance allegation unless it also found that: (a)
2 “Effective January 1, 2012, former section 12021(a) was
repealed and reenacted without substantive change as section
29800, subdivision (a).” (People v. White (2014) 223 Cal.App.4th
512, 518, fn. 2.)
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appellant actually killed Zarate; (b) appellant, “with the
intent to kill aided, abetted, counseled, commanded, induced,
requested, or assisted any actor in the commission of the
murder”; or (c) appellant, “with reckless indifference to
human life and as a major participant, aided, abetted,
counseled, commanded, induced, solicited, requested, or
assisted in the commission of the crime of Robbery or
Burglary which resulted in the death of” Zarate.
In 2014, the jury found appellant guilty on all counts.
It further found true the allegation that he had personally
used a handgun in his crimes, and that appellant murdered
Zarate while committing robbery and burglary. However,
the jury failed to answer the portions of the verdict forms
asking whether appellant had discharged a firearm and
caused great bodily injury or death to Zarate, or whether
appellant had personally inflicted great bodily injury on
Zarate. The court sentenced appellant to life in prison
without the possibility of parole, plus an additional 40 years
and eight months. In response to a question from the court,
the prosecutor confirmed that the People had made a
“deliberate decision” to recommend an enhancement of only
10, rather than 25 years on the murder conviction, because
(in the court’s words) “we’re not sure who the shooter was.”
Appellant appealed, and in 2016, we affirmed the conviction.
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B. Petition for Resentencing
In January 2020, appellant petitioned for resentencing
under section 1170.95, requesting appointment of counsel,
and alleging that: (1) he was prosecuted under a theory of
felony murder or murder under the natural and probable
consequences doctrine, (2) he was convicted of first or second
degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine, (3) he could not
now be convicted of first or second degree murder, due to
changes made to sections 188 and 189, and (4) he was not
the actual killer, did not act with the intent to kill, and was
not a major participant or did not act with reckless
indifference to human life. Nothing in the record indicates
the court reviewed the petition or set a briefing schedule; it
did not appoint counsel.
In March 2020, the People opposed the petition,
arguing that because the jury found appellant had
committed the murder while committing robbery and
burglary, it necessarily also found that appellant “either
actually killed the victim, directly aided and abetted in the
murder, or w[as a] major participant[] in the underlying
felonies who acted with reckless disregard for life,” any one
of which would render him ineligible for relief as a matter of
law. Five days later, without appointing counsel or waiting
for a response to the People’s opposition, the court issued an
order summarily denying appellant’s petition, stating the
court had “read and considered the opinion and ha[d] also
read the unpublished Court of Appeal[’]s opinion” and
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finding appellant ineligible for relief because he was “the
actual shooter.”3 Appellant timely appealed, and we
reversed and remanded with directions to appoint counsel on
behalf of appellant, to permit appellant to file a reply brief,
to consider such reply if filed, and to otherwise proceed as
set forth in section 1170.95. (Zuniga I, supra, 2021
Cal.App.Unpub. LEXIS 4713 at *17.) After our Supreme
Court granted the People’s petition for review, it
subsequently transferred the matter back to this court, with
directions that we vacate our prior opinion and reconsider
the matter in light of Strong.
DISCUSSION
“Effective January 1, 2019, the Legislature passed
Senate Bill 1437 ‘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.’ [Citation.] In addition to substantively
amending sections 188 and 189 of the Penal Code, Senate
3 We interpret the court’s minute order referring to “the
opinion” and “the unpublished Court of Appeal[’]s opinion” to
refer to the opinion in People v. Gutierrez-Salazar (2019) 38
Cal.App.5th 411 and our prior opinion affirming appellant’s
conviction, both of which were attached to the People’s
opposition.
6
Bill 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.” (People v.
Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)4
Pursuant to section 1172.6, an offender must file a
petition alleging, among other facts, that the petitioner
“could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Id., subds. (a)(3) and (b)(1)(A).)
“Upon receiving a petition in which the information required
by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court,
if the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner.” (Id., subd.
(b)(3).) The People have an opportunity to oppose the
petition, and the petitioner may file a reply, after which “the
court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show
cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.” (Id., subd. (c).)
4 Effective June 30, 2022, section 1170.95 was renumbered
as 1172.6 without substantive change. (Strong, supra, 13 Cal.5th
at 708, fn. 2.)
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A. In Ruling on the Petition, a Court May Not
Rely on the Factual Recitations in Appellate
Opinions
In denying the petition in 2020, the superior court
explained that it had reviewed both Gutierrez-Salazar and
our prior opinion affirming appellant’s conviction and
concluded appellant was “the actual shooter.” Appellant
contended the court erred in “reaching outside the Petition
to deny it on the merits.” In Zuniga I, we held the court did
not err in considering our prior opinion. (Zuniga I, supra,
2021 Cal.App.Unpub. LEXIS 4713 at *9-*10, citing People v.
Verdugo (2020) 44 Cal.App.5th 320, 329 [court permitted to
review record of conviction to ascertain whether prima facie
showing made], review granted Mar. 18, 2020, review
dismissed Jan. 5, 2022, S260493, and id. at 333 [appellate
opinion part of record of conviction].)
Following the issuance of our opinion, the Legislature
amended section 1170.95 to provide that in ruling on a
petition, courts could “consider the procedural history of the
case recited in any prior appellate opinion.” (§ 1172.6, subd.
(d)(3), italics added.) Because the amendment made no
mention of the factual history of the case recited in a prior
appellate opinion, several courts thereafter concluded that
“the factual summary in an appellate opinion is not evidence
that may be considered at an evidentiary hearing to
determine a petitioner’s eligibility for resentencing” and
consequently such evidence could not “establish, as a matter
of law, a petitioner’s ineligibility for resentencing at the
8
prima facie stage.” (People v. Flores (2022) 76 Cal.App.5th
974, 988; see also People v. Cooper (2022) 77 Cal.App.5th
393, 400, fn. 9 [superior court may not rely on “facts recited
in an appellate opinion to rule on a petition under section
1170.95”].) We agree and hold that in determining whether
appellant has made a prima facie showing, the superior
court may not consider the factual recitations in our prior
opinion affirming appellant’s conviction.
B. The Court Erred in Concluding Appellant
Was the Actual Killer, and the Error Was Not
Harmless
Appellant also contended the court incorrectly found
him to be the “actual shooter,” and the People did not
disagree.5 However, the People urged us to affirm the court’s
denial of the petition arguing that, because the jury found
true the allegation that appellant committed murder while
committing robbery and burglary under section 190.2,
subdivision (a)(17), the jury necessarily found that appellant
was at least a major participant of the crime who acted with
5 We note that while the jury found appellant guilty of
murder and found true the allegation that he had used a firearm,
it failed to determine whether he personally and intentionally
discharged a firearm causing great bodily injury to the victim, or
whether he inflicted great bodily injury on the victim. Further,
the prosecutor confirmed to the court that he was recommending
an enhancement of 10 years because “we’re not sure who the
shooter was.”
9
reckless indifference to life, rendering him ineligible for
relief under section 1170.95 as a matter of law. Though the
jury made this finding before our Supreme Court issued its
decisions in People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522, the People argued
these cases “did not fundamentally change the meaning of
the phrases ‘major participant’ and ‘reckless indifference to
human life,’” but merely clarified their meaning, and thus
did not undermine the jury’s finding. The People further
argued that even if Banks and Clark articulated a new
standard, appellant was not entitled to relief, as the record
of conviction demonstrated his actions satisfied this new
standard. Acknowledging a split among Courts of Appeal,
we rejected the People’s position and held the record did not
preclude relief as a matter of law.
In Strong, our Supreme Court expressly rejected the
People’s position, holding that “[f]indings issued by a jury
before Banks and Clark do not preclude a defendant from
making out a prima facie case for relief under Senate Bill
1437. This is true even if the trial evidence would have been
sufficient to support the findings under Banks and Clark.”
(Strong, supra, 13 Cal.5th at 710.) The Supreme Court’s
decision in Strong thus reaffirms the correctness of our prior
disposition.6
6 Appellant also argued the court’s denial of his petition prior
to appointing counsel deprived him of his rights under the federal
and California constitutions. Our Supreme Court rejected this
contention in Lewis. (Lewis, supra, 11 Cal.5th at 973 [“a
(Fn. is continued on the next page.)
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DISPOSITION
Our prior opinion in Zuniga I is vacated. The superior
court’s order denying appellant’s petition is reversed, and
the matter is remanded with directions to appoint counsel on
behalf of appellant, to permit appellant to file a reply brief,
to consider such reply if filed, and to otherwise proceed as
set forth in section 1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
petitioner is not constitutionally entitled to counsel at the outset
of the subdivision (c) stage of the section 1170.95 petitioning
process”].)
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