Filed 7/14/15 P. v. Dominici CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMUEL JOSEPH DOMINICI,

Defendant and Appellant.

 B260400

 (Los Angeles County

 Super. Ct. No. NA035338)

APPEAL from an order of the Superior Court of Los Angeles County, William C. 

Ryan, Judge. Affirmed in part; reversed in part with directions.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, 

Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for 

Plaintiff and Respondent.
2

Defendant, Samuel Joseph Dominici, was convicted in 1998 of: “assault upon the 

person of another with a deadly weapon or instrument other than a firearm or by any 

means of force likely to produce great bodily injury” (Penal Code,1 § 245, former subd. 

(a)(1), amended by Stats. 1993, ch. 369, § 1); corporal injury (§ 273.5, former subd. (a),

amended by Stats. 1988, ch. 576, § 1); false imprisonment (§ 236); and heroin possession 

(Health & Saf. Code, former § 11350, subd. (a), amended by Stats. 1991, ch. 257, § 1). 

As to the aggravated assault count, the jury expressly found that the deadly weapon was 

an iron. Defendant was sentenced to consecutive 25-year-to-life terms for aggravated 

assault and heroin possession under former sections 667, subdivision (e)(2) and 1170.12, 

subdivision (c)(2). (Stats. 1994, ch. 12, § 1, p. 74; Stats. 1994, Initiative Measures, 

p. A-316.) The sentences on the remaining two counts were stayed under section 654, 

subdivision (a). Defendant appeals from the denial of his resentencing petition under

section 1170.126. 

The trial court found defendant was ineligible for resentencing because, during the 

commission of the current aggravated assault offense, he was armed with a deadly 

weapon. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. 

(e)(2).) We agree that defendant is ineligible for resentencing on his aggravated assault 

conviction. Defendant does not contest the trial court’s ruling that he was ineligible for 

resentencing on the aggravated assault charge because he was armed with a deadly 

weapon. Thus, any contention to that effect is forfeited. (Tiernan v. Trustees of Cal. 

State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of 

Supervisors (1947) 31 Cal.2d 66, 70 disapproved on another point in Bailey v. Los 

Angeles (1956) 46 Cal.2d 132, 139.) And defendant’s failure to do so is well thought out. 

The jury expressly found he used an iron in committing the deadly weapon assault 

thereby rendering him ineligible for resentencing on that count. (§§ 667, subd. 

(e)(2)(C)(iii), 1170.12, subd. (c) (2)(C)(iii); People v. White (2014) 223 Cal.App.4th 512, 

527.)

 

1 Further statutory references are to the Penal Code except where otherwise noted.
3

But, as to the heroin possession count, in People v. Johnson (2015) __ Cal.4th __, 

__, [2015 WL 4031246 ,*1] our Supreme Court held, “[T]he presence of a conviction of 

a serious or violent felony does not disqualify an inmate from resentencing with respect 

to a current offense that is neither serious nor violent.” Thus, defendant’s aggravated 

assault conviction does not prevent resentencing on the remaining heroin possession 

count. The sole ground relied upon by the trial court was that defendant’s deadly weapon 

assault conviction barred any resentencing on the heroin possession count. Thus, based 

on the trial court’s express ruling and the sole grounds raised on appeal, the order 

denying defendant’s sentence recall petition is reversed in part. No doubt, there are other 

issues that remain for resolution once the remittitur issues. Even if the defendant is 

eligible for resentencing on the heroin possession conviction, it may be he is unsuitable. 

(See People v. Johnson, supra, __ Cal.4th at p. __; § 1170.126, subd. (f).) We leave these 

other matters in the trial court’s good hands once the remittitur issues. That part of the 

trial court’s ruling finding defendant is ineligible for resentencing on the aggravated 

assault count is affirmed. 

The order denying the sentence recall petition of defendant, Samuel Joseph 

Dominici, is reversed as to his heroin possession conviction. Upon remittitur issuance, 

the trial court is to proceed to determine his suitability for resentencing on the heroin 

possession conviction. The order denying his sentence recall petition on the aggravated 

assault conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J. KRIEGLER, J.