Filed 2/18/22 P. v. Dominguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093175
Plaintiff and Respondent, (Super. Ct. No. 09F05226)
v.
GABRIEL RICARDO DOMINGUEZ,
Defendant and Appellant.
In 2010 defendant Gabriel Ricardo Dominguez was convicted of first degree
murder. At his trial, the prosecution argued defendant was guilty of murder under
alternating theories of liability: “deliberation and premeditation and aiding and abetting
battery or assault with murder as the natural and probable consequence.” (People v.
Dominguez (June 27, 2012, C065762) [nonpub. opn.].)1
1 On the court’s own motion we take judicial notice of our prior unpublished opinion.
(Evid. Code, §§ 452, subd. (d) & 459.)
1
In 2019, defendant sought resentencing pursuant to Penal Code, section 1170.95. 2
The trial court denied defendant’s petition after issuing an order to show cause and
holding an evidentiary hearing. The court found “[e]ven if the defendant was convicted
under a natural and probable consequences theory by the jury, the defendant could still be
convicted of ‘first or second degree’ murder today under the [Senate Bill No.] 1437
version of the law; because the facts of the case clearly show that he acted at least with
implied malice.”
Defendant now contends the trial court erred by applying an incorrect standard of
proof at the hearing. We agree. Accordingly, we reverse and remand for a new hearing,
at which the trial court shall apply the correct standard of proof.
BACKGROUND
In February 2010, defendant was charged with a concealed firearm offense and
murder. At trial, “[t]he jury was instructed as to the murder on theories of both
deliberation and premeditation and aiding and abetting battery or assault with murder as
the natural and probable consequence.” (People v. Dominguez, supra, C065762.)
“In closing argument, the People offered both theories to the jury. The defense
argued the prosecution offered the aiding and abetting theory because it could not prove
defendant was the actual killer. The defense argued that all defendant did was go to the
fight, see someone punch his brother, punch the man who punched his brother, and leave.
‘He’s not aiding and abetting anybody else, he is punching a guy.’ The defense focused
on the varying descriptions of the stabber.” (People v. Dominguez, supra, C065762.)
On June 24, 2010, the jury found defendant guilty of first degree murder and the
trial court sentenced him to 25 years to life in state prison. We affirmed defendant’s
conviction and sentence on direct appeal. (People v. Dominguez, supra, C065762.) The
2 Further undesignated statutory references are to the Penal Code.
2
Supreme Court denied defendant’s petition for review. (People v. Dominguez, supra,
C065762, review den. Sept. 26, 2012, S204568.)
On January 15, 2019, defendant filed a petition for resentencing under section
1170.95. The People moved to dismiss the petition. Defendant, through counsel,
opposed the People’s motion. The trial court concluded defendant made a prima facie
showing of eligibility for relief, denied the People’s motion to dismiss, and issued an
order to show cause.
At the hearing on the order to show cause, the prosecution argued that based on
the evidence submitted at trial “a reasonable jury could find that [defendant] was a direct
aider and abettor, acted with implied malice and might have actually been the actual
killer of the victim. . . . [¶] But the fact that the natural and probable consequence theory
was concentrated on was a tactical decision, and that does not mean that [defendant]
could not be convicted of murder as the law stands today.” Defendant argued the court
was not sitting as the 13th juror in his trial, but was required to “look to the record as a
whole” and determine whether there was sufficient evidence “beyond a reasonable
doubt” that defendant “could be guilty either as the person who murdered [the victim] or
[a] major participant [who acted] with reckless indifference to human life . . . .”
The trial court understood its role was “not to go back and necessarily become a
new finder of fact, you know, whether you agree or disagree with a jury’s verdict, but I’m
looking at this, and we see that [defendant] is convicted of first degree, and [the jury]
hang[s] on the enhancements. So then isn’t it my job to go back and look at the
transcripts and whatever the People submit and say, could a reasonable jury convict him
of first degree on the two theories beyond a reasonable doubt?” After further discussion
with the parties, the court took the matter under submission.
On November 30, 2020, the trial court issued a written decision denying
defendant’s petition. In support of its decision, the trial court noted that “[a]t the very
least, we know that the jury in this case found that the defendant aided and abetted the
3
assault with a deadly weapon or assault with force likely to produce great bodily injury.”
The court went on to explain that “[s]everal theories” were presented to the jury including
direct aiding and abetting and the natural and probable consequences doctrine. And, the
court emphasized, the People did not just argue the natural and probable consequences
doctrine to the jury, but also argued “defendant committed a premediated and deliberated
murder.”
Thus, the court concluded, “Even if the defendant was convicted under a natural
and probable consequences theory by the jury, the defendant could still be convicted of
‘first or second degree’ murder today under the [Senate Bill No.] 1437 version of the law;
because the facts of the case clearly show that he acted at least with implied malice. The
fact that implied malice was not directly argued to the jury was a tactical decision by a
prosecutor to obtain a first degree murder conviction (which was the law at the time of
the trial) and did not give the jury a reason to agree on a lesser verdict of second degree
murder.” On that basis, the trial court denied the petition.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended “the felony murder rule
and the natural and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
amended section 188, which defines malice, and section 189, which defines the degrees
of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2 & 3.) It also
added section 1170.95, which provides a procedure by which those convicted of murder
premised on either a felony murder or natural and probable consequences theory can
petition for retroactive relief, if the changes in the law would affect their previously
sustained convictions; that is, if “the petitioner could not be convicted of first or second
4
degree murder because of changes to Section 188 or 189 made effective January 1,
2019.” (Stats. 2018, ch. 1015, § 4; § 1170.95, subd. (a).)
Senate Bill No. 775 (2021-2022 Reg. Sess.) was signed into law on October 5,
2021, and clarifies that after an order to show cause has issued, at the evidentiary hearing
“the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder . . . under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3), as
amended by Stats. 2021, ch. 551, § 2.) It further states, “[a] finding that there is
substantial evidence to support a conviction for murder . . . is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2.)
Here, the trial court expressed an understanding that it was not to act as an
independent factfinder but to determine whether there was sufficient evidence for a
reasonable jury to find defendant guilty of first or second degree murder. The court’s
discussion of the prosecutor’s argument to the jury, along with the instructions given to
the jury, further amplify the court’s understanding that it was assessing the evidence
relative to the jury’s verdict. As a result, the court did not determine whether the People
established beyond a reasonable doubt that defendant was guilty of first or second degree
murder, but only that “the facts of the case clearly show that he acted at least with
implied malice.” This was error. (See § 1170.95, subd. (d)(3), as amended by Stats.
2021, ch. 551, § 2.)
The People argue any error was harmless. We decline the invitation to tackle the
question of whether any error was harmless. The determination of whether defendant is
eligible or ineligible for resentencing beyond a reasonable doubt is to be decided in the
first instance by the superior court acting as fact finder and using the proper standard of
proof.
5
DISPOSITION
The judgment is reversed. The matter is remanded for a section 1170.95,
subdivision (d)(3) hearing at which the prosecution bears the burden of proving defendant
ineligible for relief beyond a reasonable doubt.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
RENNER, J.
6