Filed 9/23/21 P. v. Dominguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

MARTY DOMINGUEZ,

Defendant and Appellant.

 D077859

 (Super. Ct. No. CR105918)

APPEAL from an order of the Superior Court of San Diego County, 

Howard H. Shore, Judge. Affirmed.

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.
2

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Dominguez appealed, and we affirmed the judgment in an unpublished 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 (unpub. opn.) 

(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 appeals, contending the court erred in determining his 

petition did not establish a prima facie case for relief. We conclude 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, 

and we affirm the order.

FACTUAL AND PROCEDURAL BACKGOUND2

“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 Uturn and pulled alongside the three pedestrians. An argument ensued 

1 Statutory references are to the Penal Code unless otherwise specified.

2 We take the facts of the underlying conviction directly from our opinion 

in Dominguez I, supra, D012153.
3

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 

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 
4

entry in 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 

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.
5

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 . . . .”

DISCUSSION

I

THE PETITION FOR RESENTENCING UNDER SECTION 1170.95

A. Dominguez’s Contentions

Dominguez contends the superior court erred in denying his petition 

without issuing an order to show cause. To this end, he makes two primary 

arguments. First, he asserts the superior court erred in relying on this 

court’s prior opinion as well as the rest of the record of conviction at the 

prima facie stage of the petition process because that information could only 

be considered at the hearing stage. Second, he claims that the court erred in 

determining this court’s prior opinion and record of conviction conclusively 
6

established his ineligibility for relief. Dominguez requests that denial of his 

petition be reversed and the matter remanded for further proceedings.

B. Senate Bill 1437 and Section 1170.95

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 (Martinez).)

By amending sections 188 (defining malice) and 189 (defining the 

degrees of murder), Senate Bill 1437 changed “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); see Martinez, supra, 31 Cal.App.5th at p. 723.)

Senate Bill 1437 also added section 1170.95. That section provides that 

“[a] person convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder conviction vacated 

and to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).) A 

petition may be filed when the following three conditions are met: “(1) A 

complaint, information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine. [¶] (2) The petitioner 
7

was convicted of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder. [¶] (3) The petitioner 

could not be convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-

(3); see Martinez, supra, 31 Cal.App.5th at p. 723.)

If a petitioner files a facially sufficient petition, the trial court shall 

appoint counsel, if requested, and determine whether the petitioner has made 

a prima facie case for relief under section 1170.95, subdivision (c). (People v. 

Lewis (2021) 11 Cal.5th 952, 961-962 (Lewis).) In making this decision, the 

court should accept the petitioner’s allegations as true and “should not make 

credibility determinations or engage in ‘factfinding involving the weighing of 

evidence or the exercise of discretion.’ ” (Id. at p. 974.) The court may, 

however, consider the record of the petitioner’s conviction and, “ ‘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.” ’ ” (Id. at p. 971.)

“If the petitioner makes a prima facie showing that he or she is entitled 

to relief, the court shall issue an order to show cause [(OSC)].” (§ 1170.95, 

subd. (c).) In that event, the court must hold a hearing within 60 days to 

determine whether to vacate the murder conviction. (§ 1170.95, subd. (d)(1).) 

At this stage of the proceeding, the prosecution has the burden of proving 

“beyond a reasonable doubt[ ] that the petitioner is ineligible for 

resentencing.” (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at 

pp. 723-724.)
8

C. Analysis

Dominguez’s challenge of the superior court’s use of the record of 

conviction below presents a question of statutory interpretation, which we 

review de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) 

Dominguez contends that in denying this petition, the superior court 

improperly considered the record of conviction before ordering an OSC. In 

addition, he claims the court could not consider our opinion in Dominguez I, 

supra, D012153 as part of the record of conviction. Following the California 

Supreme Court’s guidance in Lewis, supra, 11 Cal.5th 952, we reject these 

contentions.

Our high court recently affirmed that a 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.” (Lewis, 

supra, 11 Cal.5th at p. 971.) Lewis was decided after briefing was completed 

in this matter, but the California Supreme Court clearly rejected 

Dominguez’s first argument here. Moreover, Lewis also affirmed that

“[a]ppellate opinions . . . are generally considered to be part of the record of 

conviction.” (Id. at p. 972.) Because Lewis forecloses Dominguez’s argument 

that the superior court improperly used the record of conviction, we turn to 

Dominguez’s final point that the record of conviction here did not allow the 

superior court to conclude he was ineligible for relief as a matter of law.

Dominguez contends he is entitled to a full evidentiary hearing because 

his jury in 1990 was presented with two theories, i.e., direct aiding and 

abetting and natural and probable consequences, and the record does not 

conclusively demonstrate that he was convicted under a theory now 

permitted under section 1170.95. Here, there is no dispute Dominguez was 

not the actual killer. However, the prosecution tried Dominguez on the 
9

theory that he aided and abetted the murder by telling the shooter, “Go 

ahead, shoot, shoot.” Primarily based on this evidence and the fact the jury 

was provided with an aiding and abetting jury instruction, the superior court 

found Dominguez’s record of conviction showed that he directly aided and 

abetted in the murder. Dominguez claims such a finding was error.

To support his position, Dominguez contends that the trial court could 

not base its determination on the portion of our opinion in Dominguez I, 

supra, D012153 wherein we state that Dominguez told the shooter, “Go 

ahead, shoot, shoot.” Specifically, he argues that “it was hotly disputed at 

trial whether” Dominguez made this statement; this factual dispute was not 

necessarily decided adversely against Dominguez; Dominguez did not 

challenge the sufficiency of the evidence as to this finding in the original 

appeal; and, because malice must now be proved beyond a reasonable doubt, 

he is entitled to again challenge whether he actually made the disputed 

statement in a section 1170.95 hearing.

We agree the issue of whether Dominguez told the shooter to shoot was 

disputed at trial. The prosecution’s theory of murder against Dominguez was 

that he encouraged the shooter to shoot the victim after reengaging the 

victim to finish their earlier altercation. In other words, the prosecution 

argued that Dominguez aided and abetted the murder by instructing his 

armed companion to shoot the victim. In contrast, at trial, Dominguez took 

the position that he never uttered the encouraging words. To this end, 

during closing argument, defense counsel challenged the credibility of the 

witnesses who claimed they heard Dominguez encourage the shooter and 

argued the prosecution had not proven that Dominguez actually said to shoot. 

However, we disagree with Dominguez that this factual dispute “was 

not necessarily resolved adversely to [him] at trial.” The jury convicted him 
10

of second degree murder. It was provided with a general aiding and abetting 

instruction, and the prosecution argued that Dominguez aided and abetted 

the shooter by instructing him to shoot. The only reasonable conclusion is 

that the jury found, beyond a reasonable doubt, that Dominguez said, “Go 

ahead, shoot, shoot.” 

Further, the fact that Dominguez did not raise a substantial evidence 

challenge to this finding in his original appeal is of no moment. Dominguez’s 

failure to raise this issue on appeal does not now give him the opportunity to 

require the prosecution to again prove that he made the challenged 

statement under the guise of a section 1170.95 evidentiary hearing. A jury 

already made that determination in finding him guilty, and Dominguez did 

not challenge that finding on appeal. Nonetheless, he now argues that 

section 1170.95 provides him with another bite at the proverbial apple in that 

he “is entitled to challenge the disputed evidence of his newly consequential 

statement.” Not so. His statement, “Go ahead, shoot, shoot” did not gain new 

importance under Senate Bill 1437. When he was tried in 1990, that 

statement was the vital link between him and the shooting of the victim. 

Moreover, the change in law did not provide him with an argument for a 

retrial. In other words, under section 1170.95, the evidentiary hearing is not 

a forum for him to require the prosecution to again prove, beyond a 

reasonable doubt, that he made the encouraging statement to the shooter. 

The prosecution already did so, and Dominguez waived any challenge to that 

determination by failing to raise the issue in his original appeal. Now, per 

section 1170.95, he may only challenge the effect of that finding—whether he 

could be convicted of second degree murder based on that finding after 

changes to section 188 or 189 made effective January 1, 2019. (See § 1170.95, 

subdivision (a)(1)-(3); Martinez, supra, 31 Cal.App.5th at p. 723.) Thus, we 
11

reject Dominguez’s argument that the superior court erred in dismissing his 

petition without holding a hearing because he was entitled again to challenge 

the factual finding that he said, “Go ahead, shoot, shoot.” He had no such 

right under section 1170.95.

We also are not persuaded by Dominguez’s reliance on People v. Offley

(2020) 48 Cal.App.5th 588 (Offley). He claims that the instant matter is 

analogous to that case because, here, the trial court provided the jury with 

CALJIC No. 3.023 and the prosecutor, during closing argument, discussed 

the natural and probable consequences doctrine.4

In Offley, the petitioner, one of five defendants who took part in a gangrelated shooting, was charged with murder, attempted murder and shooting 

into an occupied vehicle. (Offley, supra, 48 Cal.App.5th at p. 592.) Even 

though there was no separate conspiracy count, the People presented 

evidence of a conspiracy among the gang members; and the jury was 

3 At the time of Dominguez’s trial, CALJIC No. 3.02 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.”

4 For example, during closing argument, the prosecutor said: “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 

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.”
12

instructed a member of a conspiracy is guilty not only of the particular crime 

he knows his confederates agreed to and committed, but also for the natural 

and probable consequences of any crime of a coconspirator to further the 

object of the conspiracy. (Id. at p. 593.) Offley was convicted of the three 

crimes charged, and the jury found true that he had personally used and 

intentionally discharged a firearm proximately causing death to the victim. 

(Ibid.)

The superior court summarily denied Offley’s section 1170.95 petition 

without granting an evidentiary hearing, based on the jury’s true finding of 

the firearm enhancement. (Offley, supra, 48 Cal.App.5th at p. 597.) The 

appellate court reversed. Offley had arguably been convicted of murder 

under the natural and probable consequences doctrine; he had not been 

charged with, and the jury was not instructed on, felony murder. In fact, 

shooting into an occupied vehicle—the only non-homicide-related charge 

against him—could not be the basis for a felony-murder conviction, even 

under the law prior to Senate Bill 1437. (See People v. Chun (2009) 45 

Cal.4th 1172, 1200 [a killing during the course of an inherently dangerous 

assaultive felony, such as shooting into an occupied vehicle, is not felony 

murder].) Thus, the appellate court determined Offley could now be 

convicted of murder only upon proof he had acted with express or implied 

malice when shooting the victim; and, “[b]ecause an enhancement under 

section 12022.53, subdivision (d) does not require that the defendant acted 

either with the intent to kill or with conscious disregard to life, it does not 

establish that the defendant acted with malice aforethought.” (Offley, at 

p. 598.) Elaborating on this point, the court explained, “The jury might have 

concluded that Offley intended to take part in a conspiracy to commit assault 

with a firearm, or to fire into an occupied vehicle, with the aim of either 
13

injuring or merely frightening Barrales. The jury could have then concluded 

that Barrales’s death was the natural and probable consequence of the 

conspiracy and convicted [Offley] of murder without finding beyond a 

reasonable doubt that he acted with malice aforethought. For this reason, we 

cannot say that Offley ‘is ineligible for relief as a matter of law.’ ” (Id. at 

p. 599.)

We do not find Offley instructive here. The issue in Offley was whether 

the trial court erred in concluding that defendant was ineligible for relief 

under section 1170.95 because the jury found true the section 12022.53, 

subdivision (d) allegation that the defendant personally and intentionally 

discharged a firearm, proximately causing great bodily injury and death to 

the victim. (Offley, supra, 48 Cal.App.5th at pp. 592, 597-598.) No such issue 

is presented here.

Further, we respectfully disagree with the appellate court’s reasoning 

in Offley. There, the court determined that the jury’s true finding under 

section 12022.53, subdivision (d) did not establish that the jury found Offley 

acted with the requisite malice. (Offley, supra, 48 Cal.App.5th at p. 598.) 

However, we struggle to contemplate how any reasonable juror, under the 

facts presented, would not find that Offley acted with at least implied malice. 

He was one of several gang members that shot into a car containing rival 

gang members. If shooting multiple shots into an occupied car does not 

conclusively establish, at the very least, implied malice, we do not know what 

would. (See People v. Cravens (2012) 53 Cal.4th 500, 507 [“ ‘Malice is implied 

when the killing is proximately caused by “ ‘an act, the natural consequences 

of which are dangerous to life, which act was deliberately performed by a 

person who knows that his conduct endangers the life of another and who 

acts with conscious disregard for life’ ” ’ ”].)
14

Here, we reach a similar conclusion based on the record of conviction. 

Dominguez and the victim got into a verbal altercation while Dominguez was 

a passenger in a car, and the victim was standing on the street. A person got 

out of the car, which Dominguez was in and tried to shoot, but the gun would 

not fire. Dominguez told the would-be shooter to get back in the car. He also 

told the victim, he would deal with him another day. The car in which 

Dominguez was riding subsequently pulled over and Dominguez offered to 

finish the fight with the victim. Dominguez then told his armed companion, 

“Go ahead, shoot, shoot.” Under these circumstances, it is clear that, by 

telling the shooter to shoot, Dominguez must have intended death or great 

bodily harm.5 In any event, the natural and probable consequences of 

Dominguez telling the armed man to shoot is death or great bodily harm to 

the target. As such, Dominguez clearly exhibited malice. (See People v. 

Cravens, supra, 53 Cal.4th at p. 507.) Further, as explained in People v. 

Roldan (2020) 56 Cal.App.5th 997, review granted January 19, 2021, 

S266031, at pages 1004 through 1005, “the doctrine of implied malice has a 

‘natural and probable consequences’ element,” but Senate Bill 1437 “did 

nothing to remove implied malice as a basis for a second degree murder 

conviction.” Here, as the superior court noted based on the record of 

conviction, including providing the jury with instructions defining principals 

and aiding and abetting (CALJIC Nos. 3.00 and 3.01), the jury convicted 

5 There was no evidence offered at trial that Dominguez encouraged his 

armed companion to shoot near the victim to scare him. Moreover, 

Dominguez does not claim here that he could or would offer such evidence. 

Instead, he states that he is entitled to offer evidence at section 1170.95 

hearing that he never said to shoot. As we discuss ante, he is not entitled to 

retry his murder conviction under section 1170.95.
15

Dominguez as a direct aider and abettor of murder.6 He is not entitled to 

relief as a matter of law under section 1170.95. (See Offley, supra, 48 

Cal.App.5th at p. 596 [“One who directly aids and abets another who commits 

murder is thus liable for murder under the new law just as he or she was 

liable under the old law”].) 

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

6 We note that, in the reply brief, Dominguez argues People v. Gentile

(2020) 10 Cal.5th 830 supports his contentions here. In that case, our high 

court observed that the People had conceded, in the appellant’s initial appeal, 

that the record did not permit the conclusion that the jury’s first degree 

murder verdict was based on a valid ground. In the second appeal, however, 

the appellate court made a factual finding that the appellant was convicted 

as a direct aider and abettor. The California Supreme Court concluded that 

the appellate court’s finding had “no preclusive effect if [the appellant] file[d] 

a petition for relief from his murder conviction under section 1170.95.” (Id. at 

p. 859.) There are no analogous facts in the instant matter. Accordingly, we 

determine Gentile is not instructive here.