People v. Zuniga CA2/4

Filed 7/21/21 P. v. Zuniga CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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.
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 2014, a jury convicted appellant Pedro Huerta
Zuniga of murder, attempted murder, assault with a deadly
weapon, home invasion robbery, and first degree burglary.
The jury additionally found true that he had personally used
a handgun in his crimes, and that the murder was a “special
circumstance” murder, because it was committed while
appellant was also committing robbery and burglary. The
jury had been instructed that it could not make the special-
circumstance finding unless it also found that appellant was
at least a major participant in the robbery or burglary who
acted with reckless disregard to life. Though requested to do
so, the jury failed to find that appellant had discharged a
firearm and caused great bodily injury or death to the
victim, or that appellant had personally inflicted great bodily
injury on the victim. The court sentenced appellant to life in
prison without the possibility of parole, plus an additional 40
years and eight months.
In January 2020, appellant petitioned for relief under
Penal Code section 1170.95, alleging that he could not now
be convicted of murder because of changes to section 189,
2
and requesting counsel.1 In March 2020, the People opposed
the petition. Five days after the opposition was filed,
without appointing counsel or permitting appellant to reply
to the opposition, the court denied the petition, finding
appellant ineligible for relief because he was the “actual
shooter.”
On appeal, appellant argues the court erred in: (a)
looking beyond the allegations of the petition in determining
whether he had made a prima facie showing of entitlement
to relief; (b) failing to appoint counsel after he had filed a
facially sufficient petition; (c) denying his petition without
permitting a reply to the People’s opposition; and (d) denying
the petition on the grounds that appellant was the “actual
shooter,” when the record of conviction contradicts that
finding. The People counter that any error was harmless
because the jury necessarily found appellant was at least a
major participant in the underlying felony who acted with
reckless disregard to life, rendering him ineligible for relief
under section 1170.95 as a matter of law. They argue
appellant may not rely on our Supreme Court’s clarification
in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark), because the court did
not change the applicable law, and thus did not undermine
the jury’s special-circumstance finding. The People further
argue that even assuming Banks and Clark effected a
change in the law, the trial evidence demonstrated appellant
1 Undesignated code references are to the Penal Code.
3
was a major participant who acted in reckless disregard to
life under the new standard.
We conclude that the court was permitted to look
beyond the petition in making its prima facie determination,
but erred in concluding appellant was the actual killer.
Because we cannot conclude as a matter of law that
appellant was ineligible for relief, the error was not
harmless. Accordingly, we reverse the court’s order denying
the petition and remand with directions to appoint counsel
for appellant, permit appellant to file a reply brief, and
proceed as set forth in section 1170.95.
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 (§§187, subd. (a),
664), 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
2 “Effective January 1, 2012, former section 12021(a) was
repealed and reenacted without substantive change as section
(Fn. is continued on the next page.)
4
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)
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) “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
29800, subdivision (a).” (People v. White (2014) 223 Cal.App.4th
512, 518, fn. 2.)
5
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. During sentencing, the court asked
whether the People had made a “deliberate decision” to
recommend an enhancement of only 10 years instead of 25
years on the murder conviction because “we’re not sure who
the shooter was,” and the district attorney confirmed this to
be the case. Appellant appealed, and we affirmed the
conviction.
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.
6
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
finding appellant ineligible for relief because he was “the
actual shooter.”3 Appellant timely appealed.
DISCUSSION
“On September 30, 2018 the Governor signed Senate
Bill 1437, which, effective January 1, 2019, amended
sections 188 and 189, significantly modifying the law
relating to accomplice liability for murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 325, review granted
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.
7
Mar. 18, 2020, S260493 (Verdugo).) Specifically, “Senate Bill
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).)” (People v.
Martinez (2019) 31 Cal.App.5th 719, 723.)4
“Senate Bill 1437 also added section 1170.95 to the
Penal Code, which permits an individual convicted of felony
murder or murder under a natural and probable
consequences theory to petition the sentencing court to
vacate the conviction and to be resentenced on any
remaining counts if he or she could not have been convicted
of first or second degree murder because of Senate Bill
1437’s changes . . . .” (Verdugo, supra, 44 Cal.App.5th at
326, rev.gr.)
4 “‘“Under the felony-murder doctrine, when the defendant or
an accomplice kills someone during the commission, or attempted
commission, of an inherently dangerous felony, the defendant is
liable for either first or second degree murder, depending on the
felony committed.”’” (People v. Powell (2018) 5 Cal.5th 921, 942.)
“[U]nder the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended crime, but also
‘for any other offense that was a “natural and probable
consequence” of the crime aided and abetted.’” (People v. McCoy
(2001) 25 Cal.4th 1111, 1117.)
8
Section 1170.95 requires a petition for relief to include
certain basic elements, such as a declaration that the
petitioner is entitled to relief, information regarding the
underlying conviction, and whether the petitioner requests
the appointment of counsel. (§ 1170.95, subd. (b)(1).) “If any
of the required information is missing and cannot be readily
ascertained by the court, ‘the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.’” (Verdugo, supra, 44 Cal.App.5th
at 327, rev.gr., quoting § 1170.95, subd. (b)(2).)
Section 1170.95, subdivision (c) (Section 1170.95 (c)),
provides for “two additional court reviews before an order to
show cause may issue, one made before any briefing to
determine whether the petitioner has made a prima facie
showing he or she falls within section 1170.95—that is, that
the petitioner may be eligible for relief—and a second after
briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at 328, rev.gr.)
“Once the order to show cause issues, the court 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.” (Id. at 327, citing
§ 1170.95, subd. (d)(1).)5
5 Appellant argues that Verdugo and similar cases such as
People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar.
(Fn. is continued on the next page.)
9
A. The Court Was Permitted to Look Outside
the Petition
In denying the petition, the court explained that it had
reviewed our prior opinion affirming appellant’s conviction.
Appellant contends the court erred in “reaching outside the
Petition to deny it on the merits.” We disagree.
Verdugo addressed what documents a court may
review in making a prima facie determination. While
acknowledging that Section 1170.95(c) “does not define the
process by which the court is to make” that determination, it
found that the Legislature’s intent could be understood by
looking at subdivisions (a) and (b). (Verdugo, supra, 44
Cal.App.5th at 329, rev.gr.) Specifically, it held that the
“same material that may be evaluated under subdivision
(b)(2)—that is, documents in the court file or otherwise part
of the record of conviction that are readily ascertainable—
should similarly be available to the court in connection with
the first prima facie determination required by subdivision
(c).” (Ibid.) “A court of appeal opinion, whether or not
18, 2020, S260598 (Lewis) wrongly interpreted section 1170.95,
and urges us instead to follow the interpretation proffered in
People v. Cooper (2020) 54 Cal.App.5th 106, review granted Nov.
10, 2020, S264684 and in the dissent in People v. Tarkington
(2020) 49 Cal.App.5th 892, review granted Aug. 12, 2020,
S263219, both of which hold that Section 1170.95(c) contemplates
only one prima facie review, and that the right to counsel
attaches after a facially sufficient petition is filed. We find more
persuasive the reasoning in Verdugo, Lewis, and their companion
cases and continue to follow them.
10
published, is part of the appellant’s record of conviction.”
(Id. at 333.) Accordingly, the court did not err in considering
our prior opinion.
B. The Court Erred in Concluding Appellant
Was the Actual Killer, and The Error Was
Not Harmless
Appellant contends the court incorrectly found him to
be the “actual shooter,” and the People do not disagree.6
However, the People urge us to affirm the court’s denial of
the petition, because by finding 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 who acted with reckless indifference to life,
rendering him ineligible for relief under section 1170.95.
Though the jury made this finding before our Supreme Court
issued its opinions in Banks and Clark, the People argue
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 do
6 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 reach a conclusion as to whether he personally and
intentionally discharged a firearm causing great bodily injury to
the victim, or whether he had 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.”
11
not undermine the jury’s finding. The People further argue
even if we find that Banks and Clark articulated a new
standard, we should still affirm because the record of
conviction demonstrates appellant’s actions satisfied this
new standard.
We find that because the special-circumstance
conviction occurred before Banks and Clark, it does not
render appellant ineligible for relief as a matter of law. We
further find that we cannot use the record of conviction to
decide as a matter of law that appellant is ineligible for
relief, as appellant must be afforded the opportunity to file a
reply, in which he may develop a factual record beyond the
record of conviction.7
7 Appellant also argues the court’s denial of his petition prior
to appointing counsel deprived him of his rights under the federal
and California constitutions. This argument was addressed and
rejected in People v. Daniel (2020) 57 Cal.App.5th 666, 676,
review granted Feb. 24, 2021, S266336 [“a petitioner’s right to
counsel under section 1170.95(c) is not protected by the federal
Constitution”] and People v. Falcon (2020) 57 Cal.App.5th 272,
279, review granted Jan. 27, 2021, S266041 [“Appellant also
contends denial of appointment of counsel violates his federal and
state constitutional rights. We are not persuaded. A sentence
modification is not a criminal trial; it is an act of lenity. . . . If the
trial court acted erroneously in declining to appoint counsel, that
error does not constitute a violation of appellant’s constitutional
rights”]. We find Daniel and Falcon persuasive.
12
1.
Appellant Was Not Ineligible for Relief
as a Matter of Law
Section 1170.95 permits relief only to petitioners who
“could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3).) Under the
amended section 189, subdivision (e), “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder
only if one of the following is proven: [¶] (1) The person was
the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”8
8 Section 189, subdivision (a), provides in pertinent part that
“[a]ll murder . . . that is committed in the perpetration of, or
attempt to perpetrate, . . . robbery [or] burglary . . . is murder of
the first degree.” Section 190.2, subdivision (d), provides:
“Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a
major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of
murder in the first degree therefor, shall be punished by death or
imprisonment in the state prison for life without the possibility of
(Fn. is continued on the next page.)
13
Appellant was charged with a special circumstance
murder, namely, that he committed murder while also
committing robbery and burglary under section 190.2,
subdivision (a)(17). The jury was instructed that it could
find this true only if it also found that: (a) 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. Because a true finding on any of these
elements would mean that appellant could be convicted of
murder under the amended section 189, and the jury
necessarily found at least one of these elements true, the
People argue that appellant is therefore ineligible for relief
as a matter of law, and any error the court made in
concluding that appellant was the actual killer or in failing
to appoint counsel was harmless.
Recognizing that courts of appeal have split on how to
treat the standard articulated in Banks and Clark, we find
more persuasive the reasoning set forth in People v. Torres
(2020) 46 Cal.App.5th 1168, 1179, review granted Jun. 24,
2020, S262011 (Torres). In Torres, our colleagues in Division
parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.”
14
Five explained: “[O]ur Supreme Court’s decisions, clarifying
what it means . . . to be a ‘major participant’ in an
underlying felony and to act with ‘reckless indifference to
human life,’ construed section 190.2, subdivision (d) in a
significantly different, and narrower manner than courts
had previously construed the statute.” (Torres, supra, 46
Cal.App.5th at 1179, rev.gr.) Thus, when determining if
appellant “could be convicted today of first degree murder,
we cannot simply defer to the jury’s pre-Banks and Clark
factual findings that [he] was a major participant who acted
with reckless indifference to human life as those terms were
interpreted at the time.” (Ibid. [petitioner’s claim that
evidence presented against him failed to support robbery-
murder special circumstance after Banks and Clark requires
resolution of whether facts “are legally sufficient in light of
Banks and Clark”].)
The People argue Torres was wrongly decided and urge
us to follow instead People v. Galvan (2020) 52 Cal.App.5th
1134, review granted Oct. 14, 2020, S264284 (Galvan) and
its line of cases. Under Galvan, defendants like appellant
would not be entitled to relief under the plain language of
section 1170.95, because any present inability to convict
them of murder was not ‘“because of changes”’ made by
Senate Bill 1437, but because of the “clarification of the
requirements for the special circumstance finding in Banks
and Clark.” (Galvan, supra, 52 Cal.App.5th at 1142, rev.gr.)
Galvan held that a section 1170.95 petition is not the
15
“proper vehicle” for challenging a special-circumstance
finding. (Galvan, supra, 52 Cal.App.5th at 1141, rev.gr.)
Mindful of the conflicting caselaw, we continue to
follow Torres. Appellant’s section 1170.95 petition seeks to
have his “murder conviction vacated and to be resentenced
on any remaining counts.” (§ 1170.95, subd. (a); see People v.
York (2020) 54 Cal.App.5th 250, 260, review granted Nov.
18, 2020, S264954 [“[o]ur analyses in Torres and [People v.]
Smith [(2020) 49 Cal.App.5th 85, review granted July 22,
2020, S262835 (Smith)] recognized that section 1170.95
permits a petitioner to challenge a murder conviction”
(italics omitted)].) Because a petitioner’s entitlement to
section 1170.95 relief may require consideration of the
verdict (including any special-circumstance findings), Banks
and Clark remain applicable for those purposes. As the jury
was not instructed on the standards as articulated in Banks
and Clark, and no other finding by the jury renders
appellant ineligible for relief as a matter of law, we cannot
conclude that defendant is categorically precluded from relief
at this prima facie stage.
The People argue that should we choose to follow
Torres, we should nevertheless examine the record of
conviction to find appellant was a major participant who
acted in reckless disregard of life even under the standards
articulated in Banks and Clark, and therefore affirm because
he remains ineligible for relief as a matter of law.
Specifically, the People argue the statement of facts in our
prior opinion affirming appellant’s conviction demonstrate
16
appellant’s “full participation in the robbery scheme and full
approval” of the murder.
On this issue we find persuasive the reasoning in
Smith. Smith also involved a defendant convicted of special-
circumstance murder, whose conviction was affirmed on
appeal. (Smith, supra, 49 Cal.App.5th at 88, 89, rev.gr.)
After the defendant petitioned for resentencing under
section 1170.95, the trial court reviewed the prior appellate
opinion and considered the facts as described in the
discussion of the sufficiency of the evidence supporting the
special circumstance to conclude that “those facts were
sufficient to establish that [the defendant] was a major
participant in the underlying felony and acted with reckless
indifference to human life.” (Id. at 95.) The court therefore
denied the petition. (Ibid.)
The Court of Appeal reversed, holding that when “the
record of conviction does not preclude a petitioner from
making a prima facie showing that he falls within the
statute’s provisions as a matter of law, the petitioner is not
confined to presenting evidence contained in the record of
conviction in seeking relief. Section 1170.95 provides ‘the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[].’ [Fn. omitted.] (§
1170.95, subd. (d)(3).) It is conceivable that [the defendant]
may be able to provide evidence not presented at trial that
would demonstrate either that he was not a major
participant in the robbery or did not act with reckless
indifference to human life. By ruling prior to the
17
appointment of counsel, the trial court deprived [the
defendant] of the opportunity to develop, with the aid of
counsel, a factual record beyond the record of conviction.
Only after giving a petitioner the opportunity to file a reply,
in which he may develop a factual record beyond the record
of conviction, is a trial court in a position to evaluate
whether there has been a prima facie showing of entitlement
to relief.” (Smith, supra, 49 Cal.App.5th at 95, rev.gr.) We
find appellant’s circumstances substantively similar, and
similarly hold that appellant must be afforded the
opportunity (with the aid of counsel) to file a reply in which
he may develop a factual record beyond the record of
conviction.
18
DISPOSITION
The court’s order denying appellant’s section 1170.95
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
1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
19