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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 DOMINGUEZ,

Defendant and Appellant.

 B304659

 (Los Angeles County

 Super. Ct. No. BA208008)

APPEAL from an order of the Superior Court of Los 

Angeles County, Charlaine F. Olmedo, Judge. Reversed and 

remanded.

Caneel C. Fraser, 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, Assistant 

Attorney General, Amanda V. Lopez and J. Michael Lehmann, 

Deputy Attorneys General, 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. Dominguez

Dominguez was tried three times for a shooting that 

resulted in one death and two injuries, the first two trials 

resulting in mistrials and the third in a 2002 conviction that we 

affirmed in 2003. (People v. Prudencio Dominguez (Nov. 19, 2003, 

B159705) [nonpub. opn.] (Dominguez).)

In Dominguez, we set forth the facts as follows:

“In 1995, Alonzo Ramirez (one of the attempted murder 

victims) moved with his wife and three children to a house 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 eldest 

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 

windows 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 windows. Dreamer said they ‘felt like it,’ and asked, ‘So 

1 Undesignated statutory references will be to the Penal 

Code.
3

what’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 fuck 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 police 

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 saw 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 another 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 his friends to ‘watch out’ because ‘these guys are 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 after 
4

Pantoja and shot at him several times. One 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 

the front door; a gun case with live rounds; a bullet-proof vest; a 

backpack with boxes of live ammunition and magazines; an AK47 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 would 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 CALJIC No. 3.00, instructing 

that “[e]ach principal, regardless of the extent or manner of 

participation, is equally guilty,” and that principals include 

aiders and abettors. 

The jury was further instructed with CALJIC 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 also 
5

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 attempted 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.” 

Finally, the jury was instructed with CALJIC No. 820, 

which instructed that “All murder which is perpetrated by any 

kind of willful, deliberate 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 “To 

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 allegation 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

In 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 (Chiu 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 possibly even the ammunition and finally 

benefactor of the crimes charged.” (Hereafter the “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, the trial court denied the petition 

without appointing counsel, finding 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 specifically 
7

found “that neither the felony-murder rule for liability nor the 

natural and probable consequences doctrine were the basis of 

[appellant’s] culpability 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 Court 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 to “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 participant 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 express 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 that 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 Legislature 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 ongoing 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 murder 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 consequences 

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 relief 

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 

conviction. [¶] (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 parties, 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 the superior court erred by 

denying Dominguez’ petition 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 more favorable outcome if counsel had been appointed. (Lewis, 

supra, 11 Cal.5th at pp. 972-974.) This standard is not met 

where the record of conviction shows as a matter of law that the 

petitioner was convicted under a theory of murder that remains 

valid after 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 harbored 

actual 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 the issue whether Dominguez’ first 

degree murder conviction precludes relief as a matter of law, 

because even if the jury found he harbored actual 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 

alleged attempted murder victim].) 

But on the merits, Respondent overlooks aspects of the jury 

instructions pertaining to vicarious liability. The jury was 
10

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 attempted 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 deliberate 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 first 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 consequences, 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 he—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. The 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 must 
11

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 with 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 conviction, and it is not 

clear from the record that the trial court 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 application 

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 that amendment 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.