Filed 3/8/22 P. v. Dominguez CA4/1
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077859
Plaintiff and Respondent,
v. (Super. Ct. No. CR105918)
MARTY DOMINGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Reversed and remanded with directions.
Randi Covin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos, Lynne McGinnis, and Britton B. Lacy, Deputy Attorneys General, for
Plaintiff and Respondent.
In March 1990, a jury convicted Marty Dominguez of second degree
murder (Pen. Code,1 § 187) and found true an allegation that Dominguez was
armed with a deadly weapon during the commission of the offense (§ 12022,
subd. (a)). The court sentenced Dominguez to prison for 21 years to life.
Dominguez appealed, and we affirmed the judgment in an unpublished
opinion, People v. Dominguez, December 16, 1991, D012153 (Dominguez I).
In January 2019, Dominguez filed a petition for resentencing under
section 1170.95, which permits a defendant convicted of murder under a
felony-murder theory or the natural and probable consequences doctrine to
petition for the conviction to be vacated and resentenced. (§ 1170.95,
subd. (a).) The superior court found that Dominguez did not make a prima
facie showing that he was entitled to relief and denied the petition.
Dominguez appealed, contending the court erred in determining his
petition did not establish a prima facie case for relief. In our original opinion,
we concluded the superior court properly considered the record of conviction
to determine as a matter of law that Dominguez is ineligible for relief under
section 1170.95.
Thereafter, the California Supreme Court granted Dominguez’s
petition for review and ultimately transferred the matter to this court with
directions to vacate our prior opinion in light of newly enacted Senate Bill
No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which became effective
January 1, 2022.
We requested and received supplemental briefing from the parties on
the impact of Senate Bill 775 on this appeal. Both Dominguez and the People
contend the order must be reversed and the case remanded to the superior
1 Statutory references are to the Penal Code unless otherwise specified.
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court with directions to issue an order to show cause (OSC) and conduct an
evidentiary hearing as required by section 1170.95. We agree. As such, we
will reverse the order and remand the matter back to the superior court with
directions.
FACTUAL AND PROCEDURAL BACKGOUND 2
“On the evening of June 9, 1989, Paul [M.], his brother Mark and a
friend, Elvis [W.], were walking down Iona Street on their way home when
someone yelled from a passing car with four occupants. The car made a U-
turn and pulled alongside the three pedestrians. An argument ensued
between Paul and Dominguez who was in the car. At one point, Paul said,
‘Fuck you, Mexicans. You can’t tell me how to talk.’ He threw down his
jacket and challenged the vehicle’s occupants to fight. While Paul’s
companions were restraining him, a person with a firearm alighted from the
vehicle. He tried to shoot but the gun would not fire. Dominguez told the
man not to shoot and pushed him back to the car. Dominguez and one of
Paul’s companions shook hands and Dominguez said to Paul, ‘I’ll deal with
you another day.’ The car pulled down the street and stopped. Dominguez
offered to finish the fight. He then told a companion, ‘Go ahead, shoot, shoot.’
The companion started shooting, hitting Paul three times. One shot was
fatal.
“Dominguez testified he lived with co-defendant Debra . . . [G.] and
several children down the block from the incident. He left the children home
while he and [Debra] went to get some food. On the way, they gave a ride to
two men they saw on the street. The men told them they wanted a ride
because they were having trouble with some Black people. The car pulled
2 We take the facts of the underlying conviction directly from our opinion
in Dominguez I, supra, D012153.
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over so Dominguez could talk with the group of Black[ ] [people]. Paul
became loud and abusive. After Dominguez returned to the car, they
proceeded down the street. One of the two men asked to get out. [Debra]
pulled over, the man alighted and Dominguez heard a series of gunshots.
The men returned to the car and [Debra] sped away.
“The prosecution presented evidence [Debra]’s 11-year-old child told
officers after the incident Dominguez had left the house with a relative,
Larry [D.], the man identified as the shooter. The trial court denied
Dominguez’s motion to suppress this statement.”
Dominguez appealed his conviction, arguing the trial court erred in
admitting the 11-year-old’s statement because it was the product of an illegal
entry into the home. We concluded the trial court did not err. (Dominguez I,
supra, D012153.)
Dominguez filed a petition for resentencing under section 1170.95 in
January 2019. The superior court then appointed Dominguez counsel and set
a briefing schedule.
In February 2019, after requesting and receiving an extension to file a
response, the People filed a motion to dismiss the petition based on the
alleged unconstitutionality of Senate Bill No. 1437 (Stats. 2018, ch. 1015)
(Senate Bill 1437). The People’s motion was accompanied by two exhibits,
one of which a copy of our unpublished opinion in Dominguez I, supra,
D012153. In March 2019, Dominguez’s appointed counsel filed a response to
the People’s motion. Dominguez’s response was accompanied by three
exhibits consisting of excerpts from the record on appeal in Dominguez I. The
People then filed a reply.
In May 2019, the superior court stayed the proceedings until this court
issued its ruling on the constitutionality of Senate Bill 1437. After we
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determined that Senate Bill 1437 was constitutional (see People v.
Lamoureux (2019) 42 Cal.App.5th 241, 257-264), in June 2020, the People
filed a response to Dominguez’s petition asking the court to deny the petition
based on Dominguez’s failure to establish a prima facie case. The People’s
response attached excerpts from the record on appeal and another copy of our
unpublished opinion in Dominguez I, supra, D012153.
Later in June 2020, Dominguez’s appointed counsel filed a reply to the
People’s response to the petition, arguing that Dominguez had established a
prima facie case for relief and that the court, at this juncture, could not
consider this court’s opinion in Dominguez I, supra, D012153.
In July 2020, the superior court denied the petition without ordering an
evidentiary hearing, finding that Dominguez had not made a prima facie
showing that he was entitled to relief. Citing People v. Drayton (2020) 47
Cal.App.5th 965 (Drayton), the court explained that it “need not engage in
any fact-finding” because the “undisputed facts as shown by the record on
appeal reflect [Dominguez] aided and abetted a companion in the shooting
that resulted in the victim’s death.” The superior court also observed that
“CALJIC instructions 3.00 and 3.01, defining principals and aiding and
abetting, were given to the jury in this case,” and “[a]s these instructions
make clear, one who aids and abets is a principal in the commission of the
crime.” The superior court explained that because the Court of Appeal’s
recitation of the facts “clearly establish that [Dominguez] aided and abetted
the murder in this case,” the superior court concluded, “[w]ithout reweighing
any evidence,” that Senate Bill 1437’s changes to the Penal Code “do not
affect [Dominguez’s] case . . . .”
Dominguez appealed. In a published opinion, we affirmed the order.
Our high court granted Dominguez’s petition for review and ultimately
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transferred the matter back to this court with directions to vacate our
previous opinion and reconsider the matter.
DISCUSSION
On September 30, 2018, the Governor signed Senate Bill 1437. “The
legislation, which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the natural and
probable consequences doctrine by amending Penal Code sections 188 and
189, as well as by adding Penal Code section 1170.95, which provides a
procedure by which those convicted of murder can seek retroactive relief if
the changes in law would affect their previously sustained convictions.”
(People v. Martinez (2019) 31 Cal.App.5th 719, 722-723; see People v. Gentile
(2020) 10 Cal.5th 830, 842.)
Section 1170.95, subdivision (c) provides: “Within 60 days after service
of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve
a reply within 30 days after the prosecutor’s response is served. These
deadlines shall be extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to
make an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. If so, the court must issue an OSC and hold an evidentiary hearing
on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
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However, the court may deny the petition if the person is ineligible as a
matter of law. (Drayton, supra, 47 Cal.App.5th at pp. 980-981.) The court
may review the record of conviction, including any prior appellate opinion, to
determine if the petitioner’s allegations are rebutted by the record. (Lewis, at
p. 972.) However, the court may not engage in factfinding and weighing
credibility at the prima facie stage of petition review. (Drayton, at pp. 979-
980.)
The court in Lewis went on to explain the process of reviewing petitions
for resentencing under section 1170.95. The court said: “The record of
conviction will necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima
facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were proved. If so, the
court must issue an order to show cause.” ’ ” (Ibid.)
“ ‘However, if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “Appellate
opinions . . . are generally considered to be part of the record of conviction.”
(Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
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the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the
parties can, and should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie case for relief
under [section 1170.95], subdivision (c).” (Ibid.)
In October 2021, Senate Bill 775 was enacted and amended
section 1170.95, effective on January 1, 2022. (2020-2021 Reg. Sess.;
Stats. 2021, ch. 551, § 1.) As a result of the amendments, section 1170.95
clarified that “[a] person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s participation in a
crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a).) The
amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima
facie finding: “Upon receiving a petition in which the information required by
this subdivision is set forth . . . , if the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner.” (§ 1170.95, subd.
(b)(3).) These changes to the law do not impact the matter before us.
However, the People point out that Senate Bill 775 also “ ‘[c]odifies the
holding[s] of [Lewis] regarding . . . the standard for determining the existence
of a prima facie case.’ (Senate Bill No. 775 (2020-2021 Reg. Sess.) at § 1.)” To
this end, the People highlight that our high court concluded that the “ ‘prima
facie bar was intentionally and correctly set very low.’ ” (Lewis, supra, 11
Cal.5th at p. 972.) With this minimal bar in mind, the People concede that
the record of conviction does not demonstrate Dominguez’s ineligibility for
resentencing under section 1170.95 as a matter of law.
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Specifically, the People admit Dominguez was charged with murder
both as an aider and abettor and under the natural and probable cause
doctrine. Although the prosecutor proceeded primarily on a direct aiding and
abetting theory based on Dominguez telling his cohort “Go ahead, shoot,
shoot” and the trial court provided the jury with “a brief and generalized
instruction on liability predicated on natural and probable consequences
without identifying a specific target offense” the People acknowledge “it
cannot be said that the jury heard no instruction or argument on a natural
and probable consequences murder liability.”
Our review of the record supports the People’s concession. For
example, the trial court provided the jury with CALJIC No. 3.02, which, at
the time of the trial, provided:
“One who aids and abets is not only guilty of the particular
crime that to his or her knowledge his or her confederates
are contemplating committing, but he or she is also liable
for the natural and probable consequences of any criminal
act that he or she knowingly and intentionally aided and
abetted. You must determine whether the defendants are
guilty of the crime originally contemplated, and, if so,
whether the crime charged in Count 1 was a natural and
probable consequence of such originally contemplated
crime.”
Further, the prosecutor referred to the natural and probable
consequences doctrine during closing argument as follows:
“Why is that [the natural and probable consequences
doctrine] significant here? Well, what we are talking about
is a shooting. There is [sic] multiple gunshots. A person
ends up being shot to death. Well, if someone helps
someone in some form, according to the way the law
describes it, to commit a shooting, even if they didn’t intend
that a death result as part of that shooting, a shooting
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followed by a death is a natural and probable consequence
and you’re just as responsible as if that had been on your
mind the entire time.”
The jury instruction referring to the natural and probable consequences
doctrine and the prosecution’s reference to that theory during closing
argument creates the possibility, however slight, that the jury might have
relied on the natural and probable consequences doctrine to find Dominguez
guilty of murder. The superior court therefore could not determine that
Dominguez’s petition for resentencing under section 1170.95 lacked merit
without weighing the evidence. Such an exercise at the prima facie stage of
petition review is clear error. (See Lewis, supra, 11 Cal.5th at p. 974;
Drayton, supra, 47 Cal.App.5th at p. 980.)
In summary, considering the record before us against the backdrop of
Senate Bill 775, Lewis, supra, 11 Cal.5th 952, and the development of
caselaw on this issue following Lewis,3 we accept the People’s concession and
reverse the superior court’s order denying Dominguez’s petition under
section 1170.95. On remand, the superior court shall issue the appropriate
OSC and consider the relevant evidence.
3 (See, e.g., People v. Montes (2021) 71 Cal.App.5th 1001, 1007 [“Because
appellant’s jury was instructed on the natural and probable consequences
doctrine for attempted murder, appellant may establish a prima facia
showing of eligibility”]; People v. Jenkins (2021) 70 Cal.App.5th 924, 936-937
[“The jurors could have relied on direct aiding and abetting principles or the
natural and probable consequences doctrine, and the record of conviction does
not exclude the possibility that they relied on natural and probable
consequences”].)
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DISPOSITION
The order denying Dominguez’s petition for resentencing under
section 1170.95 is reversed. The superior court is directed to issue an order
to show cause and to hold an evidentiary hearing as required by statute. We
express no opinion on the appropriate outcome of such hearing.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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