Filed 6/28/22 P. v. Dominguez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

PRUDENCIO DO MINGUEZ

,

Defendant and Appellant

. B 304659

(Los Angeles County Super. Ct. No. BA208008 )

APPEAL from a n order of the Super ior Court of Los Angeles County, Charlaine F. Olmedo

, Judge. Reversed and
remanded

. Caneel C. Fraser

, under a ppointment by the Court of Appeal, for Defendant and Appellant

. Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and J. Michael Lehmann, Deputy Attorney s Ge neral, for Plaintiff and Respondent.

____________________2 Prudencio Dominguez appeals from an order summarily denying , without appointing counsel, his petition for resentencing
under Penal Code section 1170.95. 1 For the reasons set forth below, we reverse the order and remand for further proceedings

. BACKGROUND A. Domin g uez Dominguez was tried three times for a shooting that resulted in one death and two injuries, t he first two trials resulting in mistrials and the third in a 2002 conviction that we affirm ed in 2003. (

People v. Prudencio Dominguez (Nov. 19 , 2003, B159705) [nonpub. opn.] ( Dominguez

) .)
In Dominguez , we set for th the facts as follows:

“ In 1995, Alonzo Ramirez (one of the attempted murder victims) moved with his wife and three children to a h ouse on Tremont Street within the territory claimed by “ Big Hazard ” (a mostly Hispanic street gang) and marked by its graffiti. Ramirez saw gang members on the street almost everyday, including Dominguez (a tattooed member of Big Hazard). Ramirez ’ s eldes t son joined a rival gang, “ Krazy Ass Mexicans, ” and moved out of the house

— but visited his parents at their home, conduct which was viewed by Big Hazard ’ s members as a sign of disrespect to their gang.

“ On August 20, 2000, someone broke the alley

- side win dows of Ramirez ’ s house. Ramirez ran to the alley, saw ‘ Malo ’
and ‘ Dreamer ’ (both Big Hazard members) laughing and heading toward the Ramona Gardens Housing Project (the center of Big
Hazard ’ s territory). Ramirez asked them why they had broken his window s. Dreamer said they ‘ felt like it, ’ and asked
, ‘ So

1 Undesignated statutory references will be to the Penal Code.3

w hat ’ s up with you, you old man? ’ Dreamer then punched Ramirez and the three men fought. Neighbors, including other Big Hazard members, came out and watched. Ultimately, Malo and Dreamer ran off, with Dreamer telling Ramirez, ‘ We ’ re going
to f uck you up. ’ Other Big Hazard members made similar

comments.

“ The police responded to a call about the fight. Ramirez, afraid that Big Hazard members walking by when the polic e arrived might consider him a ‘ rat, ’ told the officers there was

‘ nothing . . . going on. ’ After the police left, Ramirez left with his wife and younger children. When he returned that night, a nervous neighbor told Ramirez that men with covered faces had shot at the house, and Ramirez sa w bullet holes all over the
house. One of the neighbors collected the bullets and later gave a bag of expended .22

- and .45

- caliber casings to the police. Ramirez moved his family out of the house but he returned. Three to five times over the course of the next few days, Ramirez saw Dominguez drive by in a burgundy Chevrolet Astro van, stopping each time at Ramirez ’ s driveway. Dominguez looked

angry.

“ On August 31, Ramirez was working in his driveway on Roberto Bedolla ’ s car, talking to Bedolla and ano ther man (Miguel Pantoja) as he worked. That afternoon, Ramirez twice saw Dominguez drive slowly by the house. Immediately after Dominguez ’ s second pass by the house, two armed men with handkerchiefs over their faces came toward Ramirez , who yelled to hi s friends to ‘ watch out ’ because ‘ these guys ar e coming . . . to
kill me. ’ Pantoja ran for cover as one gunman approached Bedolla and the other chased Ramirez, shooting all the while. Three bullets struck Ramirez, and the gunman then went after4

Pantoja a nd shot at him several times. O ne gunman said, ‘ Let ’ s
go. It ’ s over. ’ Pantoja was grazed by a bullet that damaged his hearing. Ramirez was shot in the left side, left thigh, and right buttocks, and was hospitalized for almost three weeks. Bedolla
died as a result of the shooting. ” ( Dominguez
, supra , B159705 at pp. 2

- 4.)

“ About six weeks after the shooting, the police searched Dominguez ’ s home (which was one block from Ramirez ’ s house) pursuant to a warrant. The police found: a large ‘ H ’ painted near

t he front door; a gun case with live rounds; a bullet

- proof vest; a backpack with boxes of live ammunition and magazines; an AK

47 assault rifle with bayonet; a .22

- caliber long rifle; a gun cleaning kit; boxes of various types of ammunition, including .45

- caliber, .25

- caliber, and .22

- caliber; papers showing that the Astro van belonged to Dominguez and his father; photographs of Dominguez and other gang members making gang signs in a show of gang allegiance; a card addressed to ‘ Looney ’ and stating
there wo uld be a rosary for Malo (who had died on August 26) at Santa Teresita Church at 7:00 p.m. on August 31 (the day of the shooting). The church is adjacent to Ramona Gardens and six or
seven blocks from Ramirez ’ s house. ” ( Dominguez
, supra , B159705 at pp. 5

- 6.) Dominguez was never identified as a shooter

. The jury was instructed with C ALJIC No. 3.00, instructing
that “ [e]ach principal, regardless of the extent or manner of participation, is equally guilty, ” and that prin cipals include
aiders and abetto rs. The jury was further instructed with C ALJIC No. 3.02, which states that “ One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also5

guilty of any other crime committed by a principal whic h is a natural and p robable cons equence of the crime originally aided
and abetted. [¶ ] In order to find the defendant guilty of the crimes of murder and attempted murder

. . . , you must be satisfied beyond a reasonable doubt that: [¶] . . . [¶] The crimes of murder and a ttempted murder were a natural and probable consequence of the commission of the crime of assault with a firearm. ” Finally, the jury was instructed with CALJIC No. 820, which instructed that “ A ll murder which is perpetrated by any kind of willful, delibe rate and premeditated killing with express malice aforethought is murder of the first degree

, ” and if the jury finds that “the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, . . . it is murder of the first degree. ” (Italics added.) It also told the jury that “ T o constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.” (Italics added.)
The jury convicted Dominguez of one count of first degree murder and two counts of premeditated attempted murder, and found an armed principal alle gation to be true. He was sentenced to state prison for 26 years to life plus two consecutive life terms. On appeal, the sole issue was whether Dominguez received ineffective assistance of counsel related to counsel ’ s failure to object to the admission of multiple items of evidence. We found no ineffective assistance because the challenged evidence was admissible. (

Dominguez
, supra , B159705 at pp. 3

- 5.)6 We expressed no opinion on what theory formed the basis of Dominguez ’ conviction.
B. 2018 Order
I n 2014, our Supreme Court held that the natural and probable consequences rule cannot be a basis for convicting a defendant of first

- degree murder. ( People v. Chiu (2014) 59
Cal.4th 155

, 166.) In 2018, Dominguez filed a habeas petition based on Chiu ( Chi u petition )

, seeking to have his first

- degree
murder conviction reduced to second

- degree murder and to be resentenced accordingly. The trial court denied the petition, finding that “ this was a planned gang retaliatory shooting ” that did not involve felony

- murder or “ natural or [probable] consequences of some other targeted crime

, ” and Dominguez “ was not only a direct aider and abettor thus falling outside the scope of Chiu , he was also instigator, intimidator, planner, provider of the transportation and po ssibly even the ammunition and finally benefactor of the crimes charged. ” ( Hereafter t he “ 2018 Order ” ; italics added. ) C. Instant Petition
In 2019, Dominguez filed a petition in the superior court for resentencing under section 1170.95
, which applies to those convicted of murder under specified theories, and requested the appointment of counsel.
Based on the Dominguez opinion, the 2018 Order, and the

“ records and files ” in the case , t he trial court denied the petition without appointing counsel, findin g Dominguez was ineligible for
relief under any applicable theory

. The court found that (1) we had already “ rejected ” Dominguez ’ claims in our discussion in the original Dominguez opinion ; (2) that the superior court in its 2018 Order specifically7

found “ that neither the felony

- murder rule for liability nor the natural and probable consequences doctrine were the basis of [appellant ’ s] culpabi lity supporting his convictions ” ; (3) that because Dominguez had received the 2018 Order, “ he was well
aware that his assertion under 2a of the instant [1170.95] petition . . . was patently false after having been so advised by
this Cou rt in its October 4, 2018 Order ” ; and (4) an independent analysis of the facts set forth in Dominguez established that Dominguez “ does not qualify for and cannot benefit ” from section 1170.95, subdivision (a) because he “ was not convicted under the felony murder theory of liability nor the natural and probable consequences doctrine. ” DISCUSSION
Senate Bill No. 1437 was enacted in 2018 t o “amend 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 pa rticipant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It accomplished this by amending section 188, subdivision (a)(3), to require that all principals to murder must act with expr ess or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) For a felony murder conviction under section 189, subdivision (e), Senate Bill No. 1437 required tha t the defendant be the actual killer, an aider and abettor to the murder who acted with intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3.)8 In 2021, the Legislat ure passed and the Governor signed into law Senate Bill No. 775, which amended subdivision (a) of section 1170.95 to permit relief for certain petitioners convicted of “attempted murder under the natural and probable consequences doctrine,” resolving an on going issue in the courts. (Sen. Bill No. 775 (2020

- 2021 Reg. Sess.) at § 2.) The amended section 1170.95, subdivision (a)(3), states that relief for individuals convicted of attempted murder may be available if they could not presently be
convicted of m urder or attempted murder because of changes that Senate Bill No. 1437 made to sections 188 and 189 in 2018. (Stats. 2018, ch. 1015, §§ 2

- 3.)
Section 1170.95 now permits a person convicted of murder

or attempted murder under a natural and probable consequ ences theory to petition the sentencing court to vacate the conviction and resentence on any remaining counts if the person could not
be convicted of murder or attempted murder under the new section 188 or 189 . (§ 1170.95, subd. (a).) A petition for reli ef under section 1170.95 must include: “(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner’s

c onviction. [¶] (C) Whether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).) If the petition contains the required information, the court

must appoint counsel and then conduct a prima facie analysis, with briefing by the pa rties, as to the petitioner’s eligibility before determining whether to issue an order to show cause. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 961

- 970.)9 Here, Respondent concedes that t he superior court erred by denying Dominguez’ pe tition at the prima facie stage without appointing counsel. However, this error is subject to review for harmless error
under People v. Watson (1956) 46 Cal.2d 818, which asks whether it is reasonably probable that the petitioner would have obtained

a mor e favorable outcome if counsel had been appointed. ( Lewis
, supra , 11 Cal.5th at pp. 972

- 974.) This standard is not met
where t he record of conviction shows as a matter of law that the petitioner was convicted under a theory of murder that remains valid a fter Senate Bill No. 1437. ( People v. Mancilla (2021) 67 Cal.App.5th 854, 864 .) Here, with respect to the first degree murder conviction, Respondent argues that Dominguez’ first degree murder
conviction establishes that the jury found he personally harbor ed

a ctual malice, which precludes relief under section 1170.95 as a matter of law . Dominguez argues that the “defendant”/“slayer” discrepancy in the fourth and seventh paragraphs of CALJIC No.
8.20
, ante , gives rise to the possibility that the jury never found him to have harbored actual malice, as he was not determined to
be the shooter /slayer

. We need not reach th e issue whether Dominguez’ first degree murder conviction precludes relief as a matter of law, because even if the jury found he harbored act ual malice as to the
murder count , that finding would not transfer to the attempted murder charges

. (

People v. Mariscal (2020) 47 Cal.App.5th 129,
137 [ intent to kill must be examined independently as to each

a lleged attempted murder victim].) But on th e merits, Respondent overlooks aspects of the jury instructions pertaining to vicarious liability. The jury was10

informed about the natural and probable consequences doctrine as follows: “One who aids and abets another in the commission of
a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crimes of murder and attempt ed murder . . . , you must be satisfied beyond a reasonable doubt that: [¶] . . . [¶] The crimes of murder and attempted murder were a natural and probable consequence of the commission of the crime of assault with a firearm.”
The instruction on deliber ate and premeditated murder
stated that if the jury finds that “the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, . . . it is murder of the f irst degree. (Italics added.) But it also told the jury that “[t]o constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the conseque nces, he decides to and does kill.” (Italics added.) Because under these instructions the jury
could have based its conviction of Dominguez on a finding that someone other than h e

— the slayer

— deliberated and premeditated the murder, we cannot rule out the possibility that the jury found Dominguez guilty of first degree murder under the natural and probable consequences doctrine. As to the attempted murder charges, Dominguez’ jury was instructed on the natural and probable consequences theory of liability

. T he record of conviction therefore does not show as a matter of law that the jury eschewed that theory, and that he is ineligible for relief under section 1170.95 . Therefore , we must11

reverse the trial court’s order denying Dominguez’ petition and remand the matter for a hearing pursuant to section 1170.95

. Respondent argues that the trial court’s 2018 Order bars Dominguez litigating the issue of natural and probable consequences liability via a section 1170.95 petition
, because if he was dissatisfied wi th the court’s ruling, his remedy was to file a habeas petition here or with the Supreme Court

. We need not reach this issue either, because the 2018 Order applied only to Dominguez’ murder co nviction, and it is not clear from the record that the trial co urt intended its findings to apply to the attempted murder charges as well. But even on the merits, we disagree that the 2018 Order carries preclusive effect here. “Under California law, collateral estoppel will apply in any setting only where such applic ation comports with fairness and sound public policy.” ( Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 835.) Here, the Legislature has provided a statute specifically to revisit old convictions. It would contravene the policy evinced by th at amendm ent to grant preclusive effect to earlier findings made under a distinct procedural mechanism

— i.e., habeas corpus proceedings

— and
different legal scheme

— i.e., Chui

. (See People v. Carmony (2002) 99 Cal.App.4th 317, 325

- 326 [20

- year

- old not true finding in trial
on one issue given no preclusive effect in a later proceeding on a different issue ].) We need not reach Dominguez’ argument that by relying on the 2018 Order and our recitation of facts in Dominguez the trial court engaged in improper fact finding.12 DISPOSITION The trial court’s order is reversed and the matter remanded for further proceedings pursuant to subdivision (c) of section 1170.95, including the appointment of counsel, the making of a prima facie analysis and, if necessary, the issuance of an order show cause.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.