California Court of Appeal Feb 27, 2023 No. E074958AUnpublished
Filed 2/27/23 P. v. Zuniga CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074958
v. (Super.Ct.No. INF065236)
ROGELIO LEON ZUNIGA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorney Generals, Lance E. Winters, Julie L.
Garland and Charles C. Ragland, Assistant Attorney Generals, Daniel Rogers,
Christopher P. Beesley, Daniel Rogers, Alan L. Amann and Kristen Kinnaird Chenelia,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Rogelio Leon Zuniga appeals from a trial court’s order
denying defendant’s petition for relief under Penal Code1 section 1170.95. 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 remand for further
A jury convicted defendant of first degree murder with robbery special
circumstances under sections 187, subdivision (a) and 190.2, subdivision (a)(17). On
February 1, 2013, the trial court sentenced defendant to one year plus life in prison
without the possibility of parole.
After defendant appealed, we affirmed the judgment in People v. Dunson et. al.
(Feb. 26, 2015, No. E056565 [nonpub. opn.]).
On July 26, 2019, defendant filed a petition for resentencing under section
1170.95. Defendant argued that he could not be convicted of murder today pursuant to
the statutory changes pursuant to SB 1437. The People filed an opposition and argued
that section 1170.95 was unconstitutional and defendant’s robbery-murder special
circumstance made him ineligible for relief. The trial court stayed the matter pending the
outcome of two cases determining the constitutionality of SB 1437. Defendant filed a
1 All further statutory references are to the Penal Code unless otherwise specified. In addition, 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.
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reply in support of his petition to preserve his arguments on the constitutionality of SB
1437.
On November 22, 2019, the trial court lifted the stay.
On February 14, 2020, by oral motion, the People moved to have the petition
dismissed because defendant’s jury found true a robbery-murder special circumstance,
the court sentenced defendant to life without the possibility of parole, and the court
instructed the jury with CALCRIM No. 703, which required the jury to find that
defendant acted with intent to kill or was a major participant with reckless indifference.
The court granted the People’s motion to dismiss the petition.
On March 18, 2020, defendant filed a timely notice of appeal. In an unpublished
opinion filed on November 22, 2021, we affirmed the denial of the petition based on the
state of the law at that time.
Defendant filed a petition for review, which was granted. On October 26, 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). 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.
3
On October 27, 2022, we vacated our previous opinion and requested that
defendant and the People file supplemental briefs. Defendant in his supplemental brief
requests that this court direct the trial court to issue an order to show cause and hold a
hearing pursuant to section 1172.6. 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 HISTORY2
In November 2007, Jackie Dunson and her brother Robert Dunson lived in the
ground floor apartment of a two-story duplex in Indio. Ronald Handwerk occasionally
stayed with them. Defendant and his girlfriend, M.J., lived in the apartment above the
Dunsons’ apartment. Fernando Benavidez was Jackie’s boyfriend and visited at the
apartment occasionally. Jackie sometimes would engage in prostitution and Benavidez
would bring her clients, or “dates.” In November 2007 Robert, Jackie, M.J., Handwerk,
Benavidez, and defendant hung out together and smoked methamphetamine in the
Dunsons’ apartment on most days.
On November 25, 2007, M.J., Benavidez, Robert, defendant, Handwerk, and
Jackie were at the Dunsons’ apartment. Benavidez offered to find someone to bring back
to the apartment to have sex with Jackie. Robert did not want his sister to engage in sex
for money, so he proposed that they bring a man “back to the apartment, beat his ass, rob
2 The facts are taken from our unpublished opinion in case No. E056565. An unpublished case may be cited for the purpose of providing a factual background. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)
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him, and take all of his shit.” Jackie nodded her head in agreement. Defendant and
Handwerk said nothing. Benavidez left the apartment to find someone and M.J. and
defendant went back to their upstairs apartment.
A surveillance videotape from the Spotlight 29 casino, which was approximately
five minutes from the Dunsons’ apartment, showed Benavidez entering the casino just
after midnight during the morning of November 26, 2007. He eventually was able to
persuade the victim, William Dobbs, to come with him to the Dunsons’ apartment. They
drove together in Dobbs’s car.
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.”
Defendant told M.J. to go back to sleep. Handwerk went upstairs, woke defendant and
told him to go downstairs because he had broken someone’s ribs and Handwerk’s hand
was “messed up.” M.J. went back to sleep.
In the predawn hours of November 26, 2007, T.S., who was friends with Robert
and Jackie, walked to the Dunsons’ apartment. As she approached, she saw Benavidez
walking away from the apartment. When she got closer to 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,
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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. T.S. decided to leave. As she left, she heard Robert say: “Come on,
mother fucker. We’re going for a ride.”
Robert recruited defendant to help him. Jackie watched as defendant and Robert
drove off with Dobbs in Dobbs’s car. M.J. asked for defendant, and Jackie told her that
he and Robert had to go somewhere but that they would back.
M.J. went downstairs to the Dunsons’ apartment the morning of November 27.
Robert was kneeling in a corner of the living room scrubbing the walls with bleach and
pulling up the carpet. He gave M.J. a bank card and a piece of paper with a PIN number
written on it and told her to pull out as much money as she could and bring it back to
him. Between 10:26 a.m. and 11:39 a.m. on November 27, M.J. and defendant used
Dobbs’s bank card to retrieve approximately $1,000 from different ATMs. When she
and defendant returned to the Dunsons’ apartment, she gave him $300, the bank card, and
the piece of paper with the PIN number. 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. 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. 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
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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.”
Dobb’s car was found on December 1, 2007, approximately 100 yards from the
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.
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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.
Issues
Does a pre-Banks and Clark felony-murder special-circumstance finding preclude a defendant from establishing a prima facie case for relief under Penal Code section 1172.6?
Disposition. Reversed and remanded.
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.”