People v. Dominguez CA3

Filed 2/18/22 P. v. Dominguez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093175

Plaintiff and Respondent, (Super. Ct. No. 09F05226)

v.

GABRIEL RICARDO DOMINGUEZ,

Defendant and Appellant.

In 2010 defendant Gabriel Ricardo Dominguez was convicted of first degree murder. At his trial, the prosecution argued defendant was guilty of murder under alternating theories of liability: “deliberation and premeditation and aiding and abetting battery or assault with murder as the natural and probable consequence.” (People v. Dominguez (June 27, 2012, C065762) [nonpub. opn.].)1

1 On the court’s own motion we take judicial notice of our prior unpublished opinion. (Evid. Code, §§ 452, subd. (d) & 459.)

1

In 2019, defendant sought resentencing pursuant to Penal Code, section 1170.95. 2 The trial court denied defendant’s petition after issuing an order to show cause and holding an evidentiary hearing. The court found “[e]ven if the defendant was convicted under a natural and probable consequences theory by the jury, the defendant could still be convicted of ‘first or second degree’ murder today under the [Senate Bill No.] 1437 version of the law; because the facts of the case clearly show that he acted at least with implied malice.” Defendant now contends the trial court erred by applying an incorrect standard of proof at the hearing. We agree. Accordingly, we reverse and remand for a new hearing, at which the trial court shall apply the correct standard of proof. BACKGROUND In February 2010, defendant was charged with a concealed firearm offense and murder. At trial, “[t]he jury was instructed as to the murder on theories of both deliberation and premeditation and aiding and abetting battery or assault with murder as the natural and probable consequence.” (People v. Dominguez, supra, C065762.) “In closing argument, the People offered both theories to the jury. The defense argued the prosecution offered the aiding and abetting theory because it could not prove defendant was the actual killer. The defense argued that all defendant did was go to the fight, see someone punch his brother, punch the man who punched his brother, and leave. ‘He’s not aiding and abetting anybody else, he is punching a guy.’ The defense focused on the varying descriptions of the stabber.” (People v. Dominguez, supra, C065762.) On June 24, 2010, the jury found defendant guilty of first degree murder and the trial court sentenced him to 25 years to life in state prison. We affirmed defendant’s conviction and sentence on direct appeal. (People v. Dominguez, supra, C065762.) The