People v. Zuniga CA5

Filed 3/14/25 P. v. Zuniga 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F086865 Plaintiff and Respondent, (Super. Ct. No. 15CMS7464) v.

RUDY ZUNIGA, JR., OPINION Defendant and Appellant.

APPEAL from an order of the Superior Court of Kings County. Robert Shane Burns, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Julie A. Hokans and Jessica Trieu- Simerly, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Appellant Rudy Zuniga, Jr., appeals from the denial of his petition for resentencing pursuant to Penal Code1 section 1172.6 (formerly § 1170.95). He contends

1 All further undesignated statutory references are to the Penal Code.

the trial court’s findings that appellant was the actual perpetrator of attempted murder and harbored the intent to kill were not supported by sufficient evidence, and as such the court’s determination he was ineligible for relief was error. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged by information with attempted murder (§§ 664/187, subd. (a); count 1); robbery (§ 211; count 2); and conspiracy to commit robbery (§ 182, subd. (a)(1); count 3). It was further alleged appellant personally used a deadly and dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) in the commission of the crimes. Finally, it was alleged appellant had suffered a prison prior (§ 667.5, subd. (b)). The victim, Margarito Cuevas-Velasquez, testified at the preliminary hearing that on October 31, 2015, he gave a female acquaintance a ride. The acquaintance and another woman directed him to what appeared to be an abandoned apartment. When he went inside the apartment, two men ran in; one was armed with a knife and the other with a pipe. Cuevas-Velasquez said that when the two men entered the apartment, “they started stabbing me to kill me.” The men did not say anything; they just “started attacking” him. The man with the knife stabbed him seven times, and the man with the pipe hit him on his head. They stole his wallet, and after they attacked him, they ran away. Cuevas-Velasquez initially identified appellant in court as one of the men who attacked him. When the prosecutor asked Cuevas-Velasquez what he saw appellant doing, he answered, “I didn’t see him.” When the prosecutor confronted him with the fact he had just identified appellant, Cuevas-Velasquez responded, “No, right now—well, because I don’t know if it’s for sure. But I didn’t see him. I had never seen him. I didn’t know him.” Cuevas-Velasquez then stated he did not remember if appellant was one of the people who attacked him, did not recognize him, and when he previously identified him in court, he made a mistake. When asked who was stabbing him during the incident,