People v. Dominguez CA2/2 ( 2023 )

Filed 1/23/23 P. v. Dominguez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B320067
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA052901)
v.
VINCENT DOMINGUEZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Mike Camacho, Judge. Affirmed.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Daniel C. Chang and
Stefanie Yee, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Vincent Dominguez appeals the denial of his petition for
resentencing under Penal Code1 section 1172.6 (former
§ 1170.95).2 The superior court determined that appellant is not
entitled to section 1172.6 relief as a matter of law because the
jury was not instructed on attempted murder based on felony
murder or the natural and probable consequences doctrine.
Appellant counters that the instructions allowed the jury to
convict under some other theory of imputed malice. Therefore,
because the record does not conclusively establish appellant is
ineligible for resentencing as a matter of law, appellant contends
he is entitled to remand for issuance of an order to show cause
and an evidentiary hearing in accordance with section 1172.6,
subdivisions (c) and (d). We disagree and affirm the denial of
appellant’s resentencing petition.
FACTUAL AND PROCEDURAL BACKGROUND3
In June 2001, Cheryl Gutierrez, her 16-year-old son,
Daniel, and her 12-year-old daughter, Meloney, were in a vehicle
heading to a Kentucky Fried Chicken (KFC) restaurant. Daniel
was driving the car. As Daniel was about to make a right turn, a
black Blazer driven by appellant with Richard Robles (appellant’s
half brother) in the passenger seat, came from the opposite
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 The following facts are drawn from this court’s
unpublished decision in appellant’s direct appeal from his
conviction. (People v. Richard R. Robles et. al. (Sept. 23, 2003,
B155679) [nonpub. opn.] (Robles).)
2
direction and turned left in front of Gutierrez’s vehicle.
Appellant and Robles stared at the occupants of the Gutierrez car
as they turned. (Robles, supra, B155679.)
Daniel drove behind the Blazer until it pulled into a
driveway. Robles motioned to Gutierrez to follow, but fearing for
her family’s safety, Gutierrez told Daniel to keep driving straight.
The Blazer pulled out of the driveway and as it followed the
Gutierrez car, Robles was making gang signs and yelling out the
window. (Robles, supra, B155679.)
Daniel drove into the KFC parking lot and Gutierrez and
her children got out of the car. The Blazer pulled up, blocking
the exit. Appellant and Robles yelled out “East Side Bolen,” a
local street gang, and threw gang signs. Daniel had previously
had problems with the East Side Bolen gang because he had been
asked to join and refused. However, Daniel had never seen
appellant or Robles before. (Robles, supra, B155679.)
Robles jumped out of the passenger seat of the Blazer,
threw gang signs, and yelled, “ ‘We are the ones that want to kill
you.’ ” He pulled a gun from his waistband and began shooting.
A bullet grazed Daniel’s leg and he hit the ground. Robles
jumped back into the Blazer, and he and appellant left.
Gutierrez, Daniel, and Meloney all identified appellant as the
driver of the Blazer and Robles as the shooter. (Robles, supra,
B155679.)
Following a jury trial, appellant and Robles were convicted
of three counts of attempted murder (§§ 664/187, subd. (a); counts
1–3) and one count of assault with a semiautomatic firearm
(§ 245, subd. (b); count 4). The jury found true the allegation that
the attempted murders were committed willfully, deliberately
and with premeditation (§ 664, subd. (a)). Also as to the
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attempted murder counts, the jury found the personal firearm
use (§ 12022.53, subd. (c)) and criminal street gang allegations
true (§ 186.22, subd. (b)(1)). Appellant was originally sentenced
to a term of 35 years to life in state prison. The sentence was
later amended to life with the possibility of parole plus 20 years
in state prison. (Robles, supra, B155679.)
Appellant filed his petition for resentencing pursuant to
section 1172.6 in February 2022. Without appointing counsel or
accepting briefing, the trial court denied the petition on the
ground that appellant’s convictions for attempted murder were
not based on a felony-murder theory or the natural and probable
consequences doctrine, and appellant is therefore not entitled to
relief as a matter of law.
DISCUSSION
Appellant Is Ineligible for Section 1172.6 Relief
as a Matter of Law
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) in 2018, effectively abolishing the natural and
probable consequences doctrine in cases of murder and limiting
the application of the felony-murder doctrine. (Stats. 2018,
ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) With one narrow exception (§ 189, subd. (f)), Senate Bill
No. 1437 effectively eliminated murder convictions premised on
any theory of imputed malice—that is, any theory by which a
person can be convicted of murder for a killing committed by
someone else, such as felony murder or the natural and probable
consequences doctrine—unless the People also prove that the
nonkiller defendant personally acted with the intent to kill or
was a major participant who acted with reckless disregard to
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human life. (§§ 188, subd. (a)(3) & 189, subd. (e).) Specifically,
the Legislature amended section 188 to require that, when the
felony-murder rule does not apply, a principal in the crime of
murder “shall act with malice aforethought” and “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); People v. Gentile
(2020) 10 Cal.5th 830, 842–843 (Gentile).) Effective January 1,
2022, Senate Bill No. 775 amended section 1172.6 to expand its
coverage to individuals convicted of “attempted murder under the
natural and probable consequences doctrine.” (§ 1172.6,
subd. (a); People v. Saibu (2022) 81 Cal.App.5th 709, 747.)
Senate Bill No. 1437 also enacted former section 1170.95
(now § 1172.6), which established a procedure for vacating the
murder convictions of defendants who could no longer be
convicted of murder because of the amendments to sections 188
and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at
pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) Section
1172.6, subdivision (c) requires the court to appoint counsel when
requested upon the filing of a properly pleaded petition for
resentencing. (Lewis, at pp. 963, 966.) The court must then
conduct a prima facie analysis with briefing to determine the
petitioner’s eligibility for relief, and, if the requisite prima facie
showing is made, issue an order to show cause. (§ 1172.6, subd.
(c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 458,
469–470.)
We review de novo whether the trial court properly denied
appellant’s section 1172.6 petition without issuing an order to
show cause. (People v. Coley (2022) 77 Cal.App.5th 539, 545
(Coley); People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
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As a preliminary matter, we note that the trial court erred
when it failed to appoint counsel and accept briefing from the
parties. The error, however, was harmless. In Lewis, our
Supreme Court held that once a petitioner files a facially
sufficient petition under section 1172.6 and requests appointment
of counsel, the trial court must appoint counsel before conducting
any prima facie review. (11 Cal.5th at p. 963 [“petitioners who
file a complying petition requesting counsel are to receive counsel
upon the filing of a compliant petition”]; accord, § 1172.6,
subd. (b)(3).) Because appellant’s section 1172.6 petition is
facially sufficient, the trial court erred by summarily denying
appellant’s petition for resentencing without appointing him
counsel.
However, the erroneous failure to appoint counsel for a
section 1172.6 petitioner is subject to harmless error analysis
under People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, supra,
11 Cal.5th at pp. 957–958 [failure to appoint counsel under
§ 1172.6, subd. (b)(3) is “state law error only, tested for prejudice
under [Watson]”], 974; People v. Daniel (2020) 57 Cal.App.5th
666, 676, review granted Feb. 24, 2021, S266336, review dism.
Dec. 1, 2021).) Thus, the error requires reversal in this case only
if appellant can show a reasonable probability that his petition
would not have been summarily denied if he had been afforded
the assistance of counsel. (Lewis, at pp. 972–974; Daniel, at
p. 676.) Appellant fails to meet this standard if the record of his
conviction, which includes the jury instructions, establishes that
he is not entitled to relief as a matter of law. (Daniel, at p. 678.)
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B. Appellant fails to make a prima facie showing of
eligibility for relief under section 1172.6,
subdivision (c)
Appellant concedes that no instructions on felony murder
or natural and probable consequences were given to the jury in
this case. Nevertheless, he contends that the absence of these
instructions does not categorically defeat his claim for relief
under section 1172.6 because the instructions given supported
conviction for attempted murder on a theory of imputed malice.
We disagree. Because the jury instructions did not permit the
jury to convict appellant of “attempted murder under the natural
and probable consequences doctrine” (§ 1172.6, subd. (a)), or any
other theory of imputed malice, appellant is ineligible for relief
under section 1172.6 as a matter of law. (Coley, supra, 77
Cal.App.5th at pp. 542, 548.)
1. Because appellant was not convicted of attempted
murder under the natural and probable consequences
doctrine, he is ineligible for relief
As amended by Senate Bill No. 775, section 1172.6,
subdivision (a) provides: “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 with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder,
or manslaughter conviction vacated and to be resentenced on any
remaining counts.”
When construing a statute, our fundamental task is to
ascertain the Legislature’s intent so as to give effect to the law’s
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purpose. (Lewis, supra, 11 Cal.5th at p. 961; People v. Gonzalez
(2017) 2 Cal.5th 1138, 1141.) We start by determining whether
the language of the statute is ambiguous (People v. Dieck (2009)
46 Cal.4th 934, 940), examining its words and giving them a
plain and commonsense meaning (Gonzalez, at p. 1141). “ ‘ “If
there is no ambiguity in the language, we presume the
Legislature meant what it said and the plain meaning of the
statute governs.” ’ ” (Dieck, at p. 940.)
According to the plain language of section 1172.6, a person
convicted of attempted murder is eligible for relief only if that
conviction was based on the natural and probable consequences
doctrine. (Coley, supra, 77 Cal.App.5th at p. 548 [“Section
[1172.6] applies by its terms only to attempted murders based on
the natural and probable consequences doctrine”].) Where, as in
this case, the instructions did not permit the jury to convict
appellant of “attempted murder under the natural and probable
consequences doctrine” (§ 1172.6, subd. (a)), appellant is
ineligible for relief under section 1172.6 as a matter of law.
(Coley, at p. 548 [defendant convicted of attempted murder not
entitled to § 1172.6 relief because the jury was not instructed on
the natural and probable consequences doctrine]; see also People
v. Offley (2020) 48 Cal.App.5th 588, 599 [“if the jury did not
receive an instruction on the natural and probable consequences
doctrine, the jury could not have convicted the defendant on that
basis, and the petition should be summarily denied”].)
2. Appellant was not convicted of attempted murder as an
aider and abettor under any theory of imputed malice
Even if section 1172.6 relief were available for an
attempted murder conviction based on some other theory of
imputed malice, appellant would still be ineligible because his
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jury was not instructed on any theory of imputed malice.
Nevertheless, appellant parses isolated phrases in the jury
instructions to argue that the instructions given in this case
permitted the jury to impute malice to him. We disagree:
Reading the instructions as a whole, we find the only theory on
which appellant’s jury was instructed was direct aiding and
abetting of attempted murder, which does not qualify for section
1172.6 relief.
Specifically, the jury in this case was instructed that to
prove attempted murder, each of the following elements must be
proved: “1. A direct but ineffectual act was done by one person
towards killing another human being; and [¶] 2. The person
committing the act harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.”
(CALJIC No. 8.66.)
The jury was further instructed that “[a] person aids and
abets the commission or attempted commission of a crime when
he or she, [¶] 1. With knowledge of the unlawful purpose of the
perpetrator and [¶] 2. With the intent or purpose of committing
or encouraging or facilitating the commission of the crime, and
[¶] 3. By act or advice aids, promotes, encourages or instigates
the commission of the crime.” (CALJIC No. 3.01.)
Two other instructions ensured that in order to convict
appellant of aiding and abetting the attempted murders, the jury
had to consider appellant’s guilt separately from Robles’s, and
also find that appellant himself harbored the requisite intent to
kill. (CALJIC No. 17.00 [“You must decide separately whether
each of the defendants is guilty or not guilty”]; CALJIC No. 3.31
[“Unless this specific intent and/or mental state exists the crime
or allegation to which it relates is not committed or is not true”].)
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Under these instructions, in order to convict appellant of
attempted murder as an aider and abettor, the jury necessarily
found appellant knew Robles’s criminal purpose to kill the
occupants of the Gutierrez’s car, and with the intent of
committing, encouraging, or facilitating the attempted murders,
appellant aided, promoted, encouraged, or instigated the
attempted murders by his own words or conduct. When a jury
has been instructed as appellant’s jury was, our Supreme Court
has declared that “ ‘the person guilty of attempted murder as an
aider and abettor must intend to kill.’ ” (People v. Nguyen (2015)
61 Cal.4th 1015, 1054 (Nguyen), quoting People v. Lee (2003) 31
Cal.4th 613, 624; People v. Gonzalez (2012) 54 Cal.4th 643, 654,
fn. 8.)
The instructions thus required appellant’s jury to find that
he personally shared the actual shooter’s intent to kill. This
finding constitutes a finding of express malice, which renders
appellant ineligible for section 1172.6 relief as a matter of law.
(See People v. Medrano (2021) 68 Cal.App.5th 177, 182–183.)
3. The Langi decision does not support appellant’s
argument that the instructions permitted the jury to
convict him on a theory of imputed malice
Appellant’s reliance on People v. Langi (2022) 73
Cal.App.5th 972 (Langi)—which he cites to contend the jury
could have convicted him of attempted murder as an aider and
abettor without finding he personally acted with malice—is
misplaced. In Langi, the defendant was convicted of second
degree murder as an aider and abettor based on his participation
in a fistfight among several people, in which the victim was
punched in the face, fell, and hit the back of his head on the
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sidewalk or curb, resulting in the victim’s death. (Id. at pp. 975,
976–977.)
On appeal from the summary denial of defendant’s section
1172.6 petition, the appellate court determined that the
instruction on aiding and abetting (CALJIC No. 3.01) creates an
ambiguity in the context of second degree implied malice murder,
which may allow the jury to “find the defendant guilty of aiding
and abetting second degree murder without finding that he
personally acted with malice.” (Langi, supra, 73 Cal.App.5th at
p. 982.) The court explained, “The aiding-and-abetting
instruction stated that a person aids and abets a crime if he or
she acts ‘with knowledge of the unlawful purpose of the
perpetrator, and . . . with the intent or purpose of committing or
encouraging or facilitating the commission of the crime.’
(CALJIC No. 3.01, italics added.) However, . . . the second degree
murder instruction specified that the direct perpetrator of that
crime need not act with the unlawful intent of causing death. . . .
If the perpetrator need not have had ‘murderous intent,’ certainly
the aider and abettor need not have had such an intent.
Although the definition of second degree murder in CALJIC No.
8.31 states that the perpetrator must have acted with conscious
disregard for human life, the definition of an aider and abettor in
CALJIC No. 3.01 does not include the same requirement.” (Id. at
pp. 982–983.) In this situation, the ambiguity in the instructions
allows an aider and abettor to be found guilty simply for
intending to aid the perpetrator’s act, without personally and
consciously disregarding the danger to human life. (Id. at
p. 983.)
Langi is inapposite because appellant was not convicted of
second degree or implied malice murder, but rather, attempted
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murder. In contrast to second degree implied malice murder, the
perpetrator of an attempted murder must have the specific intent
to unlawfully kill another human being. (People v. Covarrubias
(2016) 1 Cal.5th 838, 890 [“ ‘Attempted murder requires the
specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing’ ”].)
Because, as set forth above, an aider and abettor to attempted
murder shares the perpetrator’s intent to kill, the possibility of
imputing malice to an aider and abettor identified in Langi is not
present where the defendant is convicted of attempted murder as
an aider and abettor. (See Coley, supra, 77 Cal.App.5th at
pp. 547–548 [Langi inapplicable where attempted murder
conviction based on jury instructions requiring intent to kill].)
4. The isolated phrases appellant picks out of a few
instructions did not permit the jury to convict on a theory
of imputed malice
Appellant mixes and matches particular phrases from three
instructions—CALJIC No. 3.00 (all principals involved in
committing or attempting to commit a crime are “equally guilty”),
CALJIC No. 8.66 (elements of attempted murder, requiring that
the “person committing the act” harbor a specific intent to kill),
and CALJIC No. 8.67 (elements required to find premeditation
for attempted murder referring to the “would-be slayer”)—to
argue that the jury might have convicted appellant as an aider
and abettor to attempted murder without finding he had the
requisite intent to kill. (Italics added.)
The “equally guilty” language in CALJIC No. 3.00 did not
allow the jury to find appellant guilty of attempted murder
without considering appellant’s own mental state. (See People v.
Johnson (2016) 62 Cal.4th 600, 638–641 (Johnson).) In Johnson,
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our Supreme Court rejected the argument that CALCRIM former
No. 400’s “equally guilty” language allows a jury to convict an
aider and abettor of first degree murder based on the
perpetrator’s culpability without considering the aider and
abettor’s own mental state.4 (Id. at pp. 638, 641.) The court held
that where the jury was instructed with CALCRIM No. 401
setting forth the requirements for establishing aider and abettor
liability,5 “there was no reasonable likelihood the jurors would
have understood the ‘equally guilty’ language in CALCRIM
former No. 400 to allow them to base defendant’s liability for first
degree murder on the mental state of the actual shooter, rather
than on defendant’s own mental state in aiding and abetting the
killing.” (Id. at p. 641; People v. Estrada (2022) 77 Cal.App.5th
941, 947.)
For the same reason, appellant’s reliance on People v.
Samaniego (2009) 172 Cal.App.4th 1148 is misplaced. There, the
court found the “equally guilty” language in CALCRIM No. 400
“generally correct in all but the most exceptional circumstances,”
but “misleading as applied to the unique circumstances” of that
4 CALCRIM former No. 400 provided in part: “ ‘A person is
equally guilty of the crime whether he committed it personally or
aided and abetted the perpetrator who committed it.’ (See
CALCRIM No. 400 (Aug. 2009), italics added.)” (Johnson, supra,62 Cal.4th at p. 638.)
5 Like CALJIC No. 3.01, CALCRIM No. 401 instructs that
in order to find a defendant guilty as an aider and abettor, the
jury must find the defendant knew of the perpetrator’s unlawful
purpose, and, by words or conduct and with the intent to aid and
abet the perpetrator in committing the crime, did in fact aid and
abet the perpetrator’s commission of that crime.
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case. (Id. at p. 1165.) Nevertheless, the court went on to
conclude that any instructional error was harmless because “the
jury necessarily resolved [the issue of the mental states for
murder] against [defendants] under other instructions.” (Ibid.)
Specifically, because the jury was instructed with CALCRIM
No. 401, it necessarily found the defendants guilty as aiders and
abettors who acted deliberately and with premeditation. (Id. at
pp. 1165–1166 [“It would be virtually impossible for a person to
know of another’s intent to murder and decide to aid in
accomplishing the crime without at least a brief period of
deliberation and premeditation, which is all that is required”].)
Finally, appellant argues that the instructions failed to
differentiate between the actual killer and the aider and abettor
in defining malice because references to “The person committing
the act” in CALJIC No. 8.66 and the “would-be slayer” in CALJIC
No. 8.67 allowed the jury to simply impute Robles’s mental state
to appellant. The argument lacks merit.
First, there is no ambiguity in CALJIC No. 8.66. The
phrase “The person committing the act” in CALJIC No. 8.66
clearly refers to the perpetrator, in this case Robles, the actual
shooter. Appellant does not contend otherwise, nor does he
articulate how this phrase might lead a jury to impute malice to
another person who was not “The person committing the act” in
light of the other instructions given.
Next, in arguing the “would-be slayer” language in CALJIC
No. 8.67 caused the jury to impute malice, appellant ignores the
preamble to the instruction, which requires the jury to find the
defendant guilty of attempted murder before considering the
truth of the allegation “that the crime attempted was willful,
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deliberate, and premeditated murder.”6 Thus, the jury had
already determined that appellant shared Robles’s intent to kill
and was guilty as an aider and abettor of attempted murder
when it considered whether the crime was willful, deliberate, and
premeditated. CALJIC No. 8.67 does not concern the requisite
intent or mental state for conviction of attempted murder, and
assuming, as we must, that appellant’s jury understood and
followed the instructions given, it had no bearing on the jury’s
underlying determination of appellant’s guilt on the attempted
murder charges. (People v. Buenrostro (2018) 6 Cal.5th 367, 431
[“We presume jurors understand and follow the instructions they
are given, including the written instructions”].)
Even assuming the instruction did not require the jury to
find appellant personally premeditated the crime in order to find
the allegation true, our conclusion regarding appellant’s
ineligibility for section 1172.6 relief would not change. Section
1172.6 relief is available only to a defendant convicted under a
theory of imputed malice, not imputed premeditation. As set
forth above, according to the instructions given in this case, in
order to convict appellant of attempted murder as an aider and
abettor, the jury was required to find that appellant shared
Robles’s specific intent to kill. (Nguyen, supra, 61 Cal.4th at
p. 1054.)
6 The first paragraph of CALJIC No. 8.67 provides: “It is
also alleged in Counts I, II, and III that the crime attempted was
willful, deliberate, and premeditated murder. If you find the
defendant guilty of attempted murder, you must determine
whether this allegation is true or not true.”
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DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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