California Court of Appeal Jan 11, 2023 No. E073092AUnpublished
Filed 1/11/23 P. v. Benavidez CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073092
v. (Super.Ct.No. INF065236)
FERNANDO ANTONIO BENAVIDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorney Generals, Lance E. Winters, Chief
Assistant Attorney General, Charles C. Ragland and Julie L. Garland, Assistant Attorney
Generals, Christopher P. Beesley, Eric A. Swenson, Allison Acosta and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Fernando Antonio Benavidez appeals from a trial court’s
order summarily denying defendant’s petition for relief under Penal Code1 section
1170.952. For the reasons set forth post, we find that defendant made a prima facie
showing that he falls within the provisions of section 1172.6, and is therefore entitled to a
On January 3, 2012, a first amended information charged defendant with murder
under section 187, subdivision (a) (count 1). The information also charged a codefendant
with dissuading a witness under section 136.1, subdivision (c)(1) (count 2). As to count
1, the information alleged that the murder was committed while defendant and his
codefendants were engaged in the commission of a robbery under section 190.2,
subdivision (a)(17)(A).
After a jury trial, on April 3, 2012, the jury found defendant guilty as charged.
The jury also found true the special circumstance allegation that the murder was
committed during the course of a robbery.
On June 22, 2012, the trial court sentenced defendant to life without the possibility
of parole.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Section 1170.95 was renumbered effective June 30, 2022, to section 1172.6. (Stats. 2022, c. 58 (A.B. 200), § 100, eff. June 30, 2022.) We will refer to the new numbering and current version in this opinion.
2
Defendant appealed and we modified several fines but otherwise affirmed the
judgment. (People v. Dunson et al. (Feb. 26, 2015, E056565 [nonpub. opn.].)
On April 5, 2019, defendant filed a petition for resentencing under section 1172.6.
On April 26, 2019, the People filed their response. Thereafter, defendant’s appointed
counsel filed a reply brief. Counsel represented defendant at the hearing on May 31,
2019. At the hearing, the trial court summarily denied the petition on the ground that the
petition failed to set forth a prima facie case for relief.
On June 11, 2019, defendant filed a timely notice of appeal. In an unpublished
opinion filed on October 16, 2020, we affirmed the denial of the petition based on the
state of the law at the time.
Defendant filed a petition for review, which was granted. On September 28, 2022,
the California Supreme Court transferred the matter back to this court with instructions to
vacate our previous decision and reconsider the cause in light of People v. Strong (2022)
13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). In Strong,
the California Supreme Court found that felony murder special-circumstance findings
issued by a jury before the decisions of People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the terms “major
participant” and “reckless indifference to human life” in the special-circumstance statute,
do not preclude a defendant from making out a prima facie case for resentencing of a
felony-murder conviction, even if the trial evidence would have been sufficient to support
the findings under Banks and Clark. In Lewis, at page 966, the California Supreme Court
found that under section 1172.6, a defendant who files a petition for resentencing in the
3
trial court is entitled to appointment of counsel and for counsel to have the opportunity to
submit briefing prior to the trial court’s prima facie finding.
We vacated our previous opinion and requested that defendant and the People file
supplemental briefs. Defendant in his supplemental briefing requests that this court
direct the trial court to issue an order to show cause and hold a hearing pursuant to
section 1172.6. In its supplemental brief, the People agree with defendant and concede
that remand to the trial court for further proceedings under section 1172.6 is required.
We will remand the matter to the trial court for further proceedings.
B. FACTUAL HISTORY3
In November 2007, Robert Dunson and his sister, Jackie Dunson, lived in the
ground floor studio apartment of a two-story duplex in Indio. Rogelio Zuniga and his
girlfriend, M.J., lived in the vacant, second floor apartment above the Dunsons’
apartment.
Defendant was Jackie’s “on-again off-again” boyfriend and visited at the
apartment occasionally, but did not stay there. Jackie was a prostitute, and defendant
would bring her clients, or “dates.”
In November 2007, Robert, Jackie, M.J. and Zuniga hung out together and smoked
methamphetamine every day in the Dunsons’ apartment. Defendant would join them a
couple of times a week.
3 The factual history is taken from our opinion in the prior appeal, case No. E056565, which we took judicial notice of by order dated August 22, 2019.
4
On November 25, 2007, M.J., Jackie, Robert, Zuniga and defendant were at the
Dunsons’ apartment. Defendant offered to find a date for Jackie and bring the date back
to the apartment to have sex with Jackie. Robert proposed instead that they would bring
a man “back to the apartment, beat his ass, rob him, and take all of his shit.” Defendant
agreed, as did Jackie. Zuniga said nothing. Defendant left the apartment and M.J. and
Zuniga went to the upstairs apartment.
A surveillance videotape from the Spotlight 29 casino showed defendant entering
the casino just after midnight during the morning of November 26, 2007. The victim,
William Dobbs, entered the casino about 1:15 a.m. He walked around then walked
outside; as he waited for the valet to bring his Cadillac Escalade, defendant stood near the
doorway outside the casino, watching Dobbs. Dobbs left in the Escalade at 1:46 a.m.
Dobbs returned to the casino about 3:30 a.m. At 3:45 a.m., Dobbs met with
defendant inside the casino. They talked briefly and then left together in the Escalade.
At some point that night or early morning, M.J. woke to the voice of a man in the
Dunsons’ apartment screaming: “Oh, God. Please help me.” M.J. described the
screaming as “gut wrenching,” “like someone is in pain, like they were hurt [and]
screaming for someone to help them.” She also heard “very loud” sounds of banging on
a wall downstairs, “like something pretty heavy slamming up against the wall.” Zuniga
told M.J. to go back to sleep, which she did.
T.S. was a prostitute who had known Jackie and Robert for approximately 20
years. In November 2007, she was living in a car but she had Jackie’s permission to take
showers at the Dunsons’ apartment. In the predawn hours of November 26, 2007, T.S.
5
walked to the Dunsons’ apartment to take a shower. As she approached she saw
defendant walking away from the apartment. T.S. testified at the preliminary hearing that
it was defendant she saw; however, at trial T.S. testified she had “assumed” it was
defendant, but that after “getting [her] mind right” and off drugs, she remembered seeing
defendant, immediately before going to the Dunsons’ apartment, at a gas station almost
two miles away.
As T.S. approached the apartment, she heard Jackie arguing, yelling, and crying.
T.S. heard Jackie say, “he was acting stupid,” and “[h]e doesn’t want to give [the money]
to her.” A side door to the apartment was ajar. As T.S. passed by that door, she heard
Robert yelling loudly and angrily, “ ‘[g]et down, mother fucker’ ” and “[t]hese better be
the right PIN numbers.” T.S. watched Robert push a man to his knees. The man
appeared to have blood under his chin. Robert then put a plastic bag over the man’s head
and used duct tape to secure the bag to the man’s neck and face. As T.S. began to leave,
she heard Robert say: “Come on, mother fucker. We’re going for a ride.” T.S. then left.
At 4:50 a.m. Jackie attempted to withdraw $500 from an ATM machine using
Dobbs’s bank card. The attempt was denied because it exceeded the daily withdrawal
limit for the account. She then successfully withdrew $200 from the ATM. An attempt
to obtain an additional $200 was denied. During the evening of November 26, 2007,
three unsuccessful attempts to withdraw money with Dobbs’s bank card were made.
M.J. went downstairs to the Dunsons’ apartment the morning of November 27,
where she saw Robert kneeling in a corner of the living room scrubbing the walls with
bleach and pulling up carpet. He gave M.J. a bank card and a piece of paper with a PIN
6
number written on it and told her to pull out as much money as she could and bring it
back to him, and she would get “a little bit of money in return for going.” M.J. looked at
Zuniga; Zuniga said, “let’s go.”
Between 10:26 a.m. and 11:39 a.m. on November 27, M.J. and Zuniga used
Dobbs’s bank card to retrieve approximately $1,000 from different ATMs. M.J. put
$300, one of the transaction receipts, the bank card, and the PIN number in a pocket; she
ripped up the other transaction receipts and put the rest of the cash in her bra. When she
and Zuniga returned to the Dunsons’ apartment, she gave the receipt, $300, the bank card,
and the PIN number to Robert. M.J. kept the remaining cash.
Dobbs’s body was found on November 27 two miles from the Spotlight 29 casino;
he had a black bag attached to his neck with red tape. A Spotlight 29 valet parking pass
was in his pocket. He had been stabbed with a sharp instrument 14 times, mostly on his
face and neck. His internal and external jugular veins and carotid artery were severed
and his trachea was also severed, which would have made it impossible for him to
breathe. He had bruises and abrasions on his face and scalp, and signs of blunt force
trauma to his chest. He had four broken ribs, which caused ruptures to his liver and lung.
The forensic pathologist who performed the autopsy on Dobbs described the injuries as
“brutal,” and said it “looked like perhaps some injuries were inflicted for the purpose of
torture” and for “causing pain.”
DISCUSSION
In light of the decisions in Strong, supra, 13 Cal.5th 698 and Lewis, supra, 11
Cal.5th 952, remand to the trial court for further proceedings is necessary.
7
SB 1437 became effective January 1, 2019. “[SB 1437] modified California’s
felony murder rule and natural and probable consequences doctrine to ensure murder
liability is not imposed on someone unless they were the actual killer, acted with the
intent to kill, or acted as a major participant in the underlying felony and with reckless
indifference to human life.” (People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) As
The trial court’s order denying the petition is reversed and the matter is remanded
for further proceedings pursuant to section 1172.6, as set forth in this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that a pre-Banks and Clark felony-murder special-circumstance finding does not preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6, necessitating a remand for further proceedings.
Issues
Whether a pre-Banks and Clark special-circumstance finding precludes a defendant from establishing a prima facie case for relief under Penal Code section 1172.6.
Whether the trial court erred in summarily denying the defendant's petition for resentencing.
Disposition. reversed
Quotations verified verbatim against the opinion
“the special circumstance findings do not preclude him [or her] from making out a prima facie case for resentencing under section 1172.6.”
“The trial court erred by summarily denying the petition relying on the special circumstance finding.”