People v. Dominguez CA5

Filed 12/7/20 P. v. Dominguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F077174
Plaintiff and Respondent,
(Kern Super. Ct. No. BF167480A)
v.

ROBERT HENRY DOMINGUEZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
Mark L. Christiansen and Jacquelyn E. Larson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Kenneth O. Sokoler and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

SEE CONCURRING AND DISSENTING OPINION
 Robert Henry Dominguez (defendant) appeals from a judgment of conviction of
first degree murder and other crimes. He seeks reversal of the judgment based on the
trial court’s denial of a motion for a mistrial. In the alternative, defendant alleges
multiple sentencing errors.
Defendant is entitled to relief based on retroactive application of Senate Bill No.
136 (2019-2020 Reg. Sess.) (Senate Bill 136) and Senate Bill No. 1393 (2017–2018 Reg.
Sess.) (Senate Bill 1393). Due to the enactment of Senate Bill 136, prior prison term
enhancements that were imposed under an earlier version of Penal Code1 section 667.5,
subdivision (b), are now invalid and must be stricken from the judgment. Due to the
enactment of Senate Bill 1393, the matter will be remanded to allow the trial court to
consider whether to strike prior serious felony conviction enhancements that were
imposed under an earlier version of section 667, subdivision (a)(1). The judgment will
otherwise be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2017, defendant visited his wife at her home in Delano. The couple
were separated but on speaking terms. The wife had not been expecting defendant, and
she was surprised by his unusually friendly demeanor. Defendant did not stay long; he
used the bathroom, chatted while moving about the tiny living space, and left after a
couple of minutes.
Defendant knew that his wife owned a nine-millimeter handgun, which she kept in
a backpack along with a loaded magazine containing Perfecta brand ammunition.
Following his visit, defendant’s wife noticed the backpack had been moved and
discovered that her gun was missing. It had been in her possession the previous evening,
so she concluded defendant must have taken it. At approximately 12:13 p.m., she
contacted police to report that he had stolen her firearm. Defendant’s wife estimated that

1 All undesignated statutory references are to the Penal Code.

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she placed the call within 15 minutes of defendant’s departure. In other words, defendant
left his wife’s home around noon.
At approximately 12:25 p.m., Delano police officers responded to a report of a
shooting at or near the residence of Victor Palomo and his girlfriend. The couple had
been lying in bed when they heard someone calling out for Palomo. Palomo got up to
investigate and was shot in the doorway of the residence. His girlfriend heard the
gunshots but did not witness the shooting. What she saw was a man, whom she later
identified as defendant, standing over Palomo. Defendant grabbed her by the hair, held a
gun against her head, and threated to kill her if she “talk[ed].”
Palomo’s girlfriend saw defendant flee in a black car, which she described as an
older model Honda or Toyota. Police arrested defendant a few hours later. Palomo died
from multiple gunshot wounds. Although the gun was never recovered, two 9-millimeter
Perfecta bullet casings were found near Palomo’s body.
Defendant was charged with first degree murder (§§ 187, 189; count 1). The
murder count included a firearm enhancement allegation under section 12022.53,
subdivision (d). For crimes committed against Palomo’s girlfriend, defendant was
charged with witness intimidation (§ 136.1, subd. (c)(1); count 2) and making criminal
threats (§ 422; count 3). Counts 2 and 3 included firearm enhancement allegations under
section 12022.5, subdivision (a). Based on the disappearance of his wife’s handgun,
defendant was charged with petty theft (§§ 484, 488; count 4) and possession of a firearm
by a convicted felon (§ 29800, subd. (a); count 5). He was further alleged to have
suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony
conviction (§ 667, subd. (a)(1)), and to have served three prior prison terms within the
meaning of section 667.5, former subdivision (b).
A jury trial was held in 2018. The People’s case established the facts summarized
above and notably included the following evidence. Palomo’s girlfriend testified to being
“a hundred percent sure” defendant was the man who had threatened her at the time of

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Palomo’s death. Defendant’s wife testified that he had previously talked about wanting
to obtain a firearm for the purpose of killing someone named “Palomo.” Another witness
admitted to having driven defendant to and from the immediate vicinity of the crime
scene in a black 1999 Honda Accord. An additional witness testified to seeing defendant
near Palomo’s residence during the relevant time period.
The jury found defendant guilty as charged on all counts. In a bifurcated
proceeding, the trial court made true findings on all prior conviction allegations and two
of the three prior prison term allegations. Defendant was sentenced to an aggregate
prison term of 105 years to life.
DISCUSSION
Denial of Motion for Mistrial
Additional Background
During questioning of the witness who had seen defendant near Palomo’s
residence, the prosecutor asked, “As you were walking through there, did you hear
anything that was out of the ordinary?” The purpose of this question was to establish that
the witness heard gunshots. The witness gave a nonresponsive answer: “Well, at the
beginning of that white fence right there, we were talking and - I have done time before
with Robert here [i.e., defendant]. I have done time with him before. He talked, said hi
to me and stuff. That is about it.…”
Defense counsel requested and was granted a sidebar conference. A recess was
taken, and proceedings continued outside the presence of jurors. The ensuing discussion
revealed that the witness had been uncooperative with investigators for both sides and
had never disclosed that he was acquainted with defendant. Defense counsel accused the
prosecutor of misconduct, but the prosecutor denied having prior knowledge of a
connection between defendant and the witness, much less that they had “done time”
together. Defense counsel moved for a mistrial based on “[n]ot having been made aware
of this information,” and the jury learning of defendant’s prior incarceration.

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 The trial court found there was no wrongdoing by the prosecution. The motion for
mistrial was denied, but the trial court offered, “upon defense request,” to give a limiting
instruction regarding the witness’s testimony. Defense counsel said, “I’ll do it at this
point,” which was intended to constitute a request for such an instruction.
After discussing some related matters, the trial court said, “I will instruct the jury
that they are not to consider any information about how [the witness] knows [defendant]
for any other purpose except to explain how they know each other.” Next, the court
inquired of defense counsel’s preference regarding the timing of the instruction. Defense
counsel suggested waiting until the witness made an “official” in-court identification of
defendant.
Direct examination resumed and the witness formally identified defendant. At that
point, the trial court asked defense counsel, “[D]id you wish an instruction at this time?”
Counsel replied, “No. I’ll ask depending on how the questioning proceeds.” The
witness’s testimony concluded without a request by counsel for the curative instruction,
and the case proceeded to the close of evidence without further discussion of the issue.
The issue may have been revisited during an unreported jury instruction
conference. This is suggested by the trial court’s editing of the CALCRIM No. 303
instruction, which ordinarily consists of two sentences: “During the trial, certain evidence
was admitted for a limited purpose. You may consider that evidence only for that
purpose and for no other.” The trial court added this language: “For example, you are not
to consider any evidence of the defendant’s past or present custodial status except as it
pertains to witnesses’ knowledge of the defendant or prior statements.”
There were no objections to the revised CALCRIM No. 303 instruction.
Defendant’s attorney was asked, “[I]s the defense objecting to any of the instructions
being given, any of the editing that we have done, or are you offering any instructions
that are being refused?” Counsel replied, “No to all.”

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 Law and Analysis
“A court should grant a mistrial motion based on a witness’s statement if it judges
the defendant has been prejudiced in a way that an admonition or instruction cannot cure.
Because this is inherently a speculative matter, the trial court has considerable discretion
in ruling on a mistrial motion. [Citation.]” (People v. Rices (2017) 4 Cal.5th 49, 92.)
The trial court’s refusal to declare a mistrial is thus reviewed under the abuse of
discretion standard. (Ibid.)
Defendant’s briefing makes clear that he not alleging prosecutorial misconduct or
basing his claim on any discovery violations. His arguments focus on the jury learning
he had previously “done time.” However, three assertions of error have been raised for
the first time on appeal. We will discuss those contentions before evaluating the trial
court’s discretionary ruling.
Defendant faults the trial court for not giving a “timely” admonition while the
incident was fresh in the jurors’ minds. As explained above, the trial court left the timing
of the admonition up to defense counsel. The judge interrupted the resumed examination
of the witness to give the admonition, but defense counsel declined it.
“Counsel has an obligation not only to secure a ruling on any matter addressed to
the trial court for resolution, but also to affirmatively seek the full implementation of that
ruling once it is rendered.” (People v. Heldenburg (1990) 219 Cal.App.3d 468, 474;
accord, People v. Cowan (2010) 50 Cal.4th 401, 480.) “ ‘ “In the hurry of the trial many
things may be, and are, overlooked which would readily have been rectified had attention
been called to them. The law casts upon the party the duty of looking after his legal
rights and of calling the judge’s attention to any infringement of them”’ ’ [Citations.]”
(People v. Braxton (2004) 34 Cal.4th 798, 814.) Furthermore, as noted in the
respondent’s brief, “the trial court is not obliged to give limiting instructions the moment
they are requested or when the limited evidence is presented; subsequent instruction can
be sufficient in a proper case. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468,

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534.) Given the circumstances, the timing of the trial court’s remedial efforts is not a
ground for reversal. (See People v. Heldenburg, supra, 219 Cal.App.3d at pp. 474-475
[forfeiture of claim where “defense counsel obtained the trial court’s agreement that an
admonition to the jury was called for, but then sat quietly by as the trial court omitted to
give the admonition”].)
Next, defendant argues the trial court’s editing of CALCRIM No. 303 was
insufficient to cure the error. However, as previously explained, defense counsel did not
challenge that instruction or propose alternative language. Failure to object to the
adequacy of the curative instruction forfeited defendant’s belated arguments on appeal.
(See People v. Sanchez (2016) 63 Cal.4th 411, 461-462.) “If defendant had wanted the
court to modify the instruction, he should have requested it.” (Id. at p. 461.)
Finally, defendant notes the witness’s testimony was not stricken. “A witness
must give responsive answers to questions, and answers that are not responsive shall be
stricken on motion of any party.” (Evid. Code, § 766, italics added.) Defense counsel
did not move to strike the witness’s remarks, so any claim of error based on the testimony
not being stricken is without merit.
We now address the main issue, i.e., whether the jury hearing that defendant had
“done time” necessitated a mistrial. The unauthorized disclosure of information
regarding a defendant’s prior incarceration does not necessarily constitute reversible
error. (People v. Jennings (1991) 53 Cal.3d 334, 374-375.) Furthermore, although
mistrial rulings are often upheld based on the adequacy of a curative instruction,
circumstances may justify not declaring a mistrial even in the absence of such an
instruction. (See, e.g., People v. Elliott (2012) 53 Cal.4th 535, 575-576 [no abuse of
discretion where defense counsel declined trial court’s offer of a curative instruction];
People v. Valdez (2004) 32 Cal.4th 73, 124-125 [same; witness’s indirect reference to
defendant’s custodial status “was not so grave that a curative instruction would not have
mitigated any possible prejudice”].) “A trial court should grant a mistrial only when a

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party’s chances of receiving a fair trial have been irreparably damaged ….” (People v.
Silva (2001) 25 Cal.4th 345, 372.)
In People v. Bolden (2002) 29 Cal.4th 515, a police officer testified that the
defendant’s current address was “ ‘the Department of Corrections parole office.’ ” (Id. at
p. 554.) The California Supreme Court affirmed the denial of a motion for mistrial,
saying it was “doubtful that any reasonable juror would infer from the fleeting reference
to a parole office that defendant had served a prison term for a prior felony conviction”
and further concluding “[t]he incident was not significant in the context of the entire guilt
trial ....” (Id. at p. 555.) The high court did not discuss whether a curative instruction had
been given.
In People v. Marshall (1996) 13 Cal.4th 799, a witness gave unsolicited testimony
regarding the defendant’s status as an “ ‘ex-felon.’ ” (Id. at p. 837.) Defense counsel
moved for a mistrial and to have the testimony stricken. The motion for mistrial was
denied, but the motion to strike was granted. However, the trial court “never actually
struck the testimony, which therefore remained in the record for the jury to consider.”
(Id. at p. 838.) Pursuant to defense counsel’s request, a curative instruction was not
given. Despite those circumstances, the California Supreme Court affirmed the denial of
the mistrial motion. It concluded the improper testimony was not “so prejudicial as to
require reversal.” (Id. at p. 839.)
Cases like Bolden and Marshall demonstrate that isolated or fleeting remarks
alluding to a defendant’s criminal history are not so inherently prejudicial that a mistrial
is always warranted. (Accord, People v. Avila (2006) 38 Cal.4th 491, 571, 574
[admonishment cured any prejudice from testimony referring to defendant’s recent
incarceration].) Moreover, such evidence may be “nonprejudicial ‘in the light of a record
which points convincingly to guilt….’ [Citation.]” (People v. Rolon (1967) 66 Cal.2d
690, 693; see People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [any error in the denial
of a motion for mistrial was harmless given the overwhelming evidence of guilt]; see

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also, People v. Dunn (2012) 205 Cal.App.4th 1086, 1100 [employing same rationale
where basis for mistrial motion was the sudden unavailability of an expert witness].) We
are not persuaded that the trial court’s ruling was erroneous. In any event, the witness’s
improper testimony can only be viewed as harmless when considered in light of the
overwhelming evidence of defendant’s guilt. Therefore, the trial court did not commit
reversible error by denying the motion for a mistrial.
Sentencing Issues
Prior Prison Term Enhancements
The trial court found defendant had served two prior prison terms for purposes of
former subdivision (b) of section 667.5. Section 667.5 “contains a ‘washout’ exception
and does not apply with regard to ‘any prison term served prior to a period of 10 years in
which the defendant remained free of both prison custody and the commission of an
offense which results in a felony conviction.’ [Citation.]” (People v. Buycks (2018) 5
Cal.5th 857, 889.) Defendant claims the trial court erred by failing to recognize that one
of his prison priors was subject to the washout exception. The People concede this issue.
However, the question presented has been rendered moot by the enactment of Senate
Bill 136.
As of January 1, 2020, the one-year enhancement provided for in section 667.5,
subdivision (b), is inapplicable to all prior prison terms except those served for a sexually
violent offense within the meaning of Welfare and Institutions Code section 6600,
subdivision (b). (Stats. 2019, ch. 590, § 1.) Under the current law, none of defendant’s
prior prison terms qualify for the enhancement.2 It has uniformly been held, including in
cases from this district, that Senate Bill 136 applies retroactively to nonfinal judgments.

2 Defendant served time in prison for a 1994 conviction of aggravated assault
(§ 245, subd. (a)(1)), a 2006 drug conviction under former section 11377 of the Health
and Safety Code (later reduced to a misdemeanor under Proposition 47), and a 2010
conviction of second degree robbery (§§ 211, 212.5, subd. (c)).

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(E.g., People v. Winn (2020) 44 Cal.App.5th 859, 872; People v. Jennings (2019) 42
Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.)
Therefore, because defendant’s appeal was pending when Senate Bill 136 was enacted,
all true findings on the section 667.5 allegations must be reversed and the corresponding
sentence enhancements must be stricken from the judgment.
Senate Bill 1393
Defendant’s prison sentence includes five-year enhancements imposed pursuant to
section 667, subdivision (a), based on a prior serious felony conviction. In September
2018, a few months after defendant filed his notice of appeal, Senate Bill 1393 was
signed into law. (Stats. 2018, ch. 1013, §§ 1-2.) The legislation amended sections 667,
subdivision (a)(1), and 1385, subdivision (b). As a result, effective January 1, 2019, trial
courts have discretion to strike a prior serious felony conviction for purposes of
sentencing.
Senate Bill 1393 applies retroactively to nonfinal judgments. (People v. Stamps
(2020) 9 Cal.5th 685, 699.) Defendant seeks to have this matter remanded for the trial
court to consider exercising its discretion to strike his prior serious felony conviction.
The People argue remand is unnecessary and would constitute a futile act given the
unlikelihood of any leniency. Their argument is based on the trial court’s previous
imposition of upper terms and consecutive sentences, and its denial of a motion made
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 concerning
defendant’s prior strike. They further note that the trial court found no mitigating
circumstances.
“Remand is required unless the record reveals a clear indication that the trial court
would not have reduced the sentence even if at the time of sentencing it had the discretion
to do so. [Citation.] Without such a clear indication of a trial court’s intent, remand is
required when the trial court is unaware of its sentencing choices.” (People v. Almanza
(2018) 24 Cal.App.5th 1104, 1110; accord, People v. Bell (2020) 47 Cal.App.5th 153,

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198-199.) Here, the trial court offered few statements regarding its sentencing choices
beyond identifying as aggravating circumstances defendant’s criminal history and
unsatisfactory performance on probation and parole. (Cf. People v. Jones (2019) 32
Cal.App.5th 267, 275 [declining to remand where trial court had expressed “ ‘great
satisfaction’ in imposing the ‘very lengthy sentence’ it imposed”]; People v. Gutierrez
(1996) 48 Cal.App.4th 1894, 1896 [trial judge called defendant “ ‘the kind of individual
the law was intended to keep off the street as long as possible’ ”].)
Although the original punishment may suggest a different outcome is unlikely, we
will grant defendant’s request and refrain from guessing how the trial court might
exercise its discretion on remand. (See People v. Almanza, supra, 24 Cal.App.5th at
pp. 1110–1111 [“speculation about what a trial court might do on remand is not ‘clearly
indicated’ by considering only the original sentence”].) We express no opinion regarding
the trial court’s future sentencing determinations. (People v. McDaniels (2018) 22
Cal.App.5th 420, 428.)
Dueñas Claim
Defendant claims the trial court erred by imposing fines, fees, and assessments
under sections 1202.4, subdivision (b), 1202.45, 1465.8, and Government Code section
70373 without determining whether he had the ability to pay them. Defendant also
complains of a restitution order made pursuant to section 1202.4, subdivision (f). None
of these issues were raised below, and the People argue defendant’s challenges were
forfeited by a failure to object. The People also dispute the assertions of error.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which holds
“that due process of law requires the trial court to conduct an ability to pay hearing and
ascertain a defendant’s present ability to pay before it imposes court facilities and court
operations assessments under … section 1465.8 and Government Code section 70373.”
(Id. at p. 1164.) The Dueñas opinion further holds that “although Penal Code section
1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering

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increasing the fee over the statutory minimum, the execution of any restitution fine
imposed under this statute must be stayed unless and until the trial court holds an ability
to pay hearing and concludes that the defendant has the present ability to pay the
restitution fine.” (Ibid.)
In his opening brief, defendant argues all fines, fees, assessments, and restitution
obligations “must be set aside.” In his reply brief, defendant says the subject orders must
be stricken or stayed unless, in further proceedings on remand, his ability to pay the
imposed amounts is established. His arguments impliedly assign the burden of proof to
the People. The California Supreme Court will decide whether trial courts must consider
a defendant’s ability to pay before imposing or executing fines, fees, and assessments;
and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019)
38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)
This district has held that a defendant forfeits an “ability to pay challenge” by
failing to raise it at the time of sentencing. (E.g., People v. Lowery (2020) 43
Cal.App.5th 1046, 1053-1054; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073–1075
(Aviles); contra, People v. Son (2020) 49 Cal.App.5th 565, 596-598.) However, in cases
such as Lowery and Aviles the appellants were challenging restitution fines in excess of
the statutory minimum. (Lowery, at p. 1055; Aviles, at p. 1061.) Section 1202.4,
subdivisions (c) and (d) permit defendants to raise an ability to pay objection when the
court imposes a restitution fine above the statutory minimum of $300. Here, because the
trial court imposed the minimum restitution fine of $300, defendant did not have a
statutory right to object to it.
Assuming his claims are not forfeited, we disagree with defendant’s position and
conclude the matter need not be remanded on this issue. For the reasons stated in Aviles,
we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more
appropriate to determine whether restitution fines, fees, and assessments in a particular
case are grossly disproportionate and thus excessive. (Aviles, supra, 39 Cal.App.5th at

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pp. 1067–1072.) Under that standard, the fines and fees imposed in this case are not
grossly disproportionate to defendant’s level of culpability and the harm he inflicted, and
thus not excessive under the Eighth Amendment. (Id. at p. 1072.)
Even if we agreed with Dueñas, we would conclude any error arising from the
trial court’s failure to make an ability to pay finding was harmless beyond a reasonable
doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36
Cal.App.5th 1028, 1035; Aviles, supra, 39 Cal.App.5th at pp. 1075‒1077.) “ ‘ “Ability to
pay does not necessarily require existing employment or cash on hand.” [Citation.] “[I]n
determining whether a defendant has the ability to pay a restitution fine, the court is not
limited to considering a defendant’s present ability but may consider a defendant’s ability
to pay in the future.” [Citation.] This include[s] the defendant’s ability to obtain prison
wages and to earn money after his release from custody. [Citation.]’ [Citations.]”
(Aviles, p. 1076.)
We can infer from the record defendant’s ability pay the aggregate sum of fines
and fees from probable future wages, namely prison wages. (See Aviles, supra, 39
Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397 [“a finding of ability to pay a restitution fine
may be based on the wages a defendant will earn in prison”].) Defendant is 44 years old
and will spend decades in prison before he is eligible for parole. The record discloses no
physical or mental disability that would preclude him from earning wages. While it may
take defendant some time to pay the amounts imposed in this case, that circumstance
does not establish his inability to make payments from either prison wages or monetary
gifts from family and friends during his prison sentence. (See, e.g., People v. Potts
(2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321;
People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

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 DISPOSITION
The prior prison term enhancements imposed pursuant to section 667.5, former
subdivision (b), are reversed and ordered stricken from the judgment. Defendant shall be
resentenced accordingly. The matter is remanded for a resentencing hearing, at which
time the trial court shall consider whether to exercise the discretion conferred by Senate
Bill 1393 to strike the prior serious felony conviction enhancements. In all other
respects, the judgment is affirmed.

POOCHIGIAN, J.
I CONCUR:

HILL, P.J.

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SMITH, J. Concurring and Dissenting.
I disagree with the majority’s resolution of defendant’s claims under People v.
Dueñas (2019) 30 Cal.App.5th 1157. I would permit defendant to raise his Dueñas
claims on remand. However, in keeping with People v. Son (2020) 49 Cal.App.5th 565
(lead opn. of Smith, J.), I would find that defendant is entitled, as a matter of
constitutional right, to a determination of ability to pay only with regard to the court
operations funding assessment pursuant to Government Code section 70373. Were the
trial court to adjust, on remand, the fines and fees formerly imposed in this case, the
judgment would be modified accordingly. In all other respects, I concur with the
majority and vote to affirm.

SMITH, J.