People v. Zuniga CA5

Filed 5/5/22 P. v. Zuniga CA5 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric L. Christoffersen, William K. Kim 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 unable to establish a prima facie showing he was eligible for relief. Defendant appealed the denial of his petition. We previously affirmed the trial court’s order, concluding defendant was ineligible for relief from his attempted murder convictions because the plain language of former section 1170.95, subdivision (a) limited relief to persons convicted of felony murder or murder under a natural and probable consequences theory. Defendant petitioned for review. The California Supreme Court granted and held the petition and deferred action pending its consideration and disposition in People v. Lopez, S258175. It then transferred the case back to us with directions for our court to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Defendant now argues he is entitled to relief from his attempted murder convictions in light of the developments in the law. The People disagree, arguing defendant’s petition was properly denied because the jury was not instructed on the natural and probable consequences doctrine. We affirm the court’s order denying defendant’s petition. 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