People v. Zuniga CA5

Filed 6/8/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F078866 Plaintiff and Respondent, (Super. Ct. No. VCF211993B) v.

RONNIE JOSEPH ZUNIGA, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Gary L. Paden, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, Eric L. Christoffersen and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Levy, Acting P.J., Poochigian, J., and Peña, J.

INTRODUCTION In 2010, a jury convicted defendant Ronnie Joseph Zuniga of three counts of attempted murder and one count of shooting at an occupied motor vehicle, and found true various enhancement allegations. Following the passage of Senate Bill No. 1437 (2017– 2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to Penal Code section 1170.95, asserting he was entitled to resentencing under the new laws. (Undesignated statutory references are to the Penal Code.) The court denied defendant’s petition, concluding he was categorically ineligible for relief because he was not convicted of murder. Defendant appeals the denial of his petition. We affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND In 2010, a jury convicted defendant of three counts of attempted murder (§§ 664, 187; counts 1–3) and one count of shooting at an occupied vehicle (§ 246; count 4). The jury also found true allegations that a principal personally and intentionally discharged a handgun during the attempted murders in violation of section 12022.53, subdivisions (c) and (e)(1). Defendant petitioned the court for resentencing in 2019 using a preprinted form. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of first degree felony murder but could not now be convicted because he was not the actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; and he was not a major participant in the felony or did not act with