Filed 3/18/14 P. v. Dominguez CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK ANTHONY DOMINGUEZ,

Defendant and Appellant.

 B247774

 (Los Angeles County

 Super. Ct. No. KA097833)

APPEAL from a judgment of the Superior Court of Los Angeles County, Juan C. 

Dominguez, Judge. Affirmed as modified. 

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent. 

_________________
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Frank Anthony Dominguez and his sister attacked Sommer Stewart after she 

insisted they leave her front porch. Stewart’s boyfriend, James Foster, intervened and 

fought with Dominguez until he and his sister left. Stewart suffered hair loss and injuries 

to her head and jaw. Two weeks later Dominguez and his sister drove up and challenged 

Foster to a fight as he was walking to his stepdaughter’s school. Dominguez repeatedly 

struck Foster with a nightstick and physically restrained him while his sister punched and 

kicked him. Foster fled and contacted police. During a search of Dominguez’s bedroom, 

officers recovered a stolen car key and a stolen car stereo face plate.

In an amended information the People charged Dominguez with one count of 

assault with a deadly weapon on Foster (Pen. Code, § 245, subd. (a)(1))

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one count of 

assault by means likely to produce great bodily injury on Stewart (§ 245, subd. (a)(4))

and one count of receiving stolen property (§ 496, subd. (b)). The information specially

alleged as to the aggravated assault on Stewart that Dominguez had personally inflicted 

great bodily injury (§ 12022.7, subd. (a)). The information specially alleged as to both 

aggravated assault counts that Dominguez had served two prior separate prison terms for 

felonies (§ 667.5, subd. (b)).

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Dominguez pleaded not guilty and denied the special 

allegations.

A jury found Dominguez guilty of aggravated assault on Stewart and receiving 

stolen property. It found true the special allegation Dominguez had personally inflicted 

great bodily injury. The jury was unable to reach a verdict on the charge of aggravated 

assault on Foster. The trial court declared a mistrial on that count, and the People elected 

to retry it. Dominguez agreed to waive time for sentencing. 

At a pretrial/trial setting conference Dominguez entered a negotiated plea of no 

contest, both orally and in writing, to assault with a deadly weapon on Foster. Pursuant 

to the agreement Dominguez would be sentenced to a term, to be determined by the trial 

 

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Statutory references are to the Penal Code.

2

Dominguez’s sister, Kristi Isabel Dominguez, was charged as a codefendant in 

committing assault with a deadly weapon on Foster. She pleaded no contest prior to trial. 
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court, to be served concurrently with the sentence imposed for the aggravated assault on 

Stewart and receipt of stolen property. At the time he entered his plea, Dominguez was 

advised of his constitutional rights and the nature and consequences of the plea, which 

Dominguez stated he understood. Defense counsel joined in the waivers of Dominguez’s 

constitutional rights and stipulated to a factual basis for the plea. The trial court 

expressly found Dominguez’s waivers and plea were voluntary, knowing and intelligent. 

In the same proceeding Dominguez also admitted the two prior prison term allegations. 

At sentencing the trial court imposed an aggregate state prison term of seven 

years, consisting of the upper term of four years for aggravated assault on Stewart, plus 

three years for the great bodily injury enhancement, and concurrent terms of three years 

for aggravated assault on Foster and 365 days for receiving stolen property. The court 

stayed the one-year sentence for each of the prior prison term enhancements. The court 

awarded presentence custody credit of 371 days (322 actual days and 49 days of conduct 

credit). The court ordered Dominguez to pay a $40 court security fee and a $30 criminal 

conviction assessment on each count and a $280 restitution fine. The court imposed and 

suspended a parole revocation fine pursuant to section 1202.45.

We appointed counsel to represent Dominguez on appeal. After examination of 

the record counsel filed an opening brief in which no issues were raised. On

November 20, 2013 we advised Dominguez he had 30 days within which to personally 

submit any contentions or issues he wished us to consider. No response has been 

received to date. 

We have examined the entire record and are satisfied Dominguez’s counsel has 

complied fully with his responsibilities and no arguable issues exist. (Smith v. Robbins

(2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 

40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

Because the one-year enhancement under section 667.5, subdivision (b), must be 

imposed or struck, the trial court erred in staying Dominguez’s prior prison term

enhancements. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [an enhancement for a 
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prior prison term is mandatory unless stricken].) It appears from the record the court 

intended to limit Dominguez’s sentence to seven years. We therefore modify the 

judgment to reflect the court’s intent and strike the two section 667.5, subdivision (b),

enhancements. 

The March 20, 2013 minute order and abstract of judgment show a restitution fine 

in the amount of $140, rather than $280 as the trial court orally imposed. Accordingly, 

we order the minute order and the abstract of judgment corrected to reflect the amount of 

the restitution fine actually imposed. (See People v. Mitchell (2001) 26 Cal.4th 181, 183, 

185-188.)

DISPOSITION

The judgment is affirmed as modified. The superior court is directed to prepare 

and forward to the Department of Corrections and Rehabilitation a corrected abstract of 

judgment that deletes the two one-year prior prison term enhancements and shows a 

restitution fine in the amount of $280.00.

PERLUSS, P. J. 

We concur: 

WOODS, J.

SEGAL, J.

*

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.