People v. Quistian CA6

Filed 3/5/25 P. v. Quistian CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051240 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 204405)

v.

DOMINGO QUISTIAN, JR.,

Defendant and Appellant.

Defendant Domingo Quistian, Jr. was convicted by jury on three counts of willful, deliberate, and premeditated attempted murder including gang and firearm allegations in 1999. He later petitioned for resentencing under Penal Code section 1172.6 (formerly Pen. Code, § 1170.95; unspecified statutory references are to this Code). The trial court denied the petition without an evidentiary hearing after concluding defendant was ineligible for relief under that statute as a matter of law. Defendant argues on appeal that the trial court should have conducted an evidentiary hearing because ambiguities in the jury instructions at defendant’s trial allowed the jury to find him guilty of attempted murder with malice imputed based solely on his participation in a crime. We disagree and will affirm the order denying defendant’s petition. I. BACKGROUND According to this court’s unpublished opinion in defendant’s direct appeal, defendant was a passenger in a car occupied by three other people. They drove past three rival gang members and “some sort of interaction occurred between the two groups, such

as staring and making various hand gestures.” The occupants of the car picked up another person and returned to the area where they had seen the rival gang members. “Although there is some discrepancy as to the precise sequence of events” after the car returned to the area, at some point the rival gang members threw objects at the car. A man then got out of the car and shot at the rival gang members multiple times with a semiautomatic firearm while they fled, hitting and injuring two of them. Multiple witnesses identified defendant as the shooter. When an officer at the scene asked one of the victims who had shot him, he named two people: defendant and defendant’s cousin. The same victim later told a friend that defendant had shot him. Defendant’s cousin was also charged with three counts of attempted murder; only defendant was alleged to have personally used a firearm, inflicted great bodily injury, and acted willfully, deliberately, and with premeditation. Defendant presented an alibi defense at trial, with his mother and sister testifying that he was with them in another city on the day of the shooting. Relevant to defendant’s arguments in this appeal, the jury was instructed as follows: “Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include, one, those who actively and directly commit or attempt to commit the act constituting the crime, or, two, those who aid and abet the commission or attempted commission of the crime. [¶] A person aids and abets the commission or attempted commission of the crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator, and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and, three, by act or advice, aids, promotes, encourages, or instigates the commission of the crime.” The jury was not instructed on the natural and probable consequences doctrine. The jury was instructed on the elements of attempted murder: “In order to prove attempted murder, each of the following elements must be proved: [¶] One, a direct but 2