People v. Dominguez

• Court: California Court of Appeals
• Writing for the Court: DATO, J.
• Citation: People v. Dominguez, 66 Cal.App.5th 163, 281 Cal.Rptr.3d 82 (Cal. App. 2021)
• Decision Date: 02 July 2021
• Docket Number: D076896
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Alejandro DOMINGUEZ et al., Defendant and Appellant.

66 Cal.App.5th 163

281 Cal.Rptr.3d 82

The PEOPLE, Plaintiff and Respondent,

v.Luis Alejandro DOMINGUEZ et al., Defendant and Appellant.

D076896

Court of Appeal, Fourth District, Division 1, California.

Filed July 2, 2021

Thomas E. Robertson, under appointment by the Court of Appeal, on behalf of Defendant and Appellant Luis Alejandro Dominguez.

Athena Shudde, San Diego, under appointment by the Court of Appeal, on behalf of Defendant and Appellant Abraham Leal Torres.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Beverly Hills, for Plaintiff and Respondent.

DATO, J.

In a flurry of 21 bullets fired in 3.7 seconds, Luis Alejandro Dominguez and Abraham Leal Torres (collectively, Defendants) shot and killed Angel Sanabria and wounded Joseph Luna. They missed two others (Juan Coronado and Alberto Nava), who were in or near the same small enclosed area. All four victims were members or associates of the Eastside San Diego gang. Defendants were charged with the first degree murder of Sanabria and the premeditated attempted murder of Luna, Coronado, and Nava. No gang enhancements were alleged; Defendants were not gang members, but were admittedly part of a neighborhood "tagging crew" that had conflicts with the Eastside gang

The issue at trial was not who shot, but why. Defendants admitted they were the shooters. The issue was their state of mind. Each testified he fired in a panic and fear when, while about eight feet away from them, Sanabria said, "Where the fuck you from? ... This is Eastside," and lunged at them while reaching for an apparent weapon in his waistband. The court instructed the jury on both self-defense and voluntary manslaughter based on imperfect self-defense. But it refused Defendants' request to instruct on voluntary manslaughter based on heat-of-passion, determining there was insufficient evidence of the requisite provocation.

Along with making true findings on certain gun enhancements, the jury convicted Defendants of second degree murder as to Sanabria ( Pen. Code,¹ § 187, subd. (a) ) and attempted murder as to Luna and Coronado ( §§ 187, subd. (a), 664 ).² It found allegations that the attempted murders were premediated to be "not true." It also acquitted Defendants of (1) first degree murder as to Sanabria; and (2) both attempted murder and attempted voluntary manslaughter as to Nava. The court sentenced Dominguez to a prison term of 16 years, plus 65 years to life and Torres to 17 years, plus 65 years to life.³

On appeal, Defendants contend the court erroneously refused their request to instruct on voluntary manslaughter based on heat of passion. Additionally, they assert that in light of People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ), which was decided after trial, the court gave an erroneous "kill zone" instruction on the element of intent to kill for attempted murder. They further assert the evidence is insufficient to support their convictions on that theory.

We conclude the court erroneously refused to instruct on voluntary manslaughter based on heat of passion. Where, as here, the evidence can support not only self-defense and imperfect self-defense, but also that the defendant killed because his reason was obscured by passion in response to the victim's objectively provocative conduct, the trial court should instruct on all three theories. ( People v. Breverman (1998) 19 Cal.4th 142, 77 Cal.Rptr.2d 870, 960 P.2d 1094 ( Breverman ).) In light of the Defendants' testimony, the jury should have been permitted to find Defendants guilty of voluntary manslaughter (instead of second degree murder) and attempted voluntary manslaughter (instead of attempted murder).

On the attempted murder convictions, the Attorney General concedes that "the trial court's kill zone instruction was prejudicially erroneous" under Canizales. We accept the concession, and also conclude that the evidence is sufficient to support attempted murder convictions on that theory. Accordingly, we will reverse the judgments and remand for a new trial on the reversed convictions.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Running the Streets Tagging Crew and the Eastside San Diego Gang.

This case involves the Eastside San Diego (Eastside) criminal street gang and a tagging crew—Running the Streets (RTS)—that operated in the same neighborhood.⁴ ; A tagging crew consists of two or more person who, using a common name (such as RTS), deface property with graffiti. In San Diego, there are approximately 200 different tagging crews. Although tagging crews do not have geographical boundaries (they will deface property anywhere), they tend to frequent a particular area.

RTS's primary criminal activity is spray painting graffiti. At the time of Sanabria's shooting, it had only four members, two of whom were Dominguez and Torres. Eastside is a full-fledged criminal street gang, with 237 documented gang members, plus at least another 250 individuals who associate with the gang. Its members engage in murder, attempted murder, assault, kidnapping, carjacking, and drug trafficking. They will not hesitate to use guns, knives, brass knuckles, and even baseball bats as weapons.

Sanabria was not an Eastside gang member, but associated with them. In 2014, he was convicted of assault with force likely to produce great bodily injury. On his way to jail Sanabria boasted, "I beat that Nigga's ass."

Coronado, Sanabria's cousin, also associates with Eastside. There was some evidence—not the least of which is a large "SE" tattoo on his chest—that he was affiliated with the Southeast Locos gang. In prison, he claimed to be in Sureños.⁵ Luna is a "hard core" Eastside gang member, described by police as "Eastside to the very last bone." He has prior felony convictions with gang enhancements for robbery and assault with a deadly weapon.⁶

Although a tagging crew is not a street gang, there are some similarities. If a tagging crew is disrespected, it is expected that the members will respond with violence. And like gang members, members of a tagging crew have monikers. Dominguez's moniker is Creeps or Creeper, and he has RTS tattooed on a finger. Police consider him to be a "tag banger"—a tagging crew member who is not just there for the art, but who also commits acts of violence on rivals. Torres's moniker is Boozer and, like Dominguez, he also has RTS tattoos.

Eastside treats tagging crews as a training ground from which to acquire new talent. Over the years, Eastside recruited (or completely absorbed) several tagging crews. But like so much of gang life, recruiting tagging crew members has the potential for serious violence. If a recruit were to refuse an invitation to join the gang, Eastside would consider that person a "rival" who would be "dealt with" for disrespecting the gang. The prosecution's gang expert explained:

"Q: You testified ... that the Diego Aztecs were at one point [ ] a tagging crew and then now there is no more Diego Aztecs that are individuals, right, they are just part of Eastside?

"A: Yes, sir.

"Q: And the truth for the Diego Aztec was that when [Eastside] came to ask them or tell them that they were going to be gang members, they had two choices, right, they could either become [Eastside] or, in their words, they could get banged on, right?

"A: That would be accurate, yes.

"Q: If they did not join [Eastside], they would get dealt with, in your words?

"A: Yes.

"Q: And that means they would be targeted for assault, right?

"A: They would be viewed as rivals.

"Q: Or maybe they could be even targeted for killing, right?

"A: It could escalate to that, yes."

Historically, Eastside and RTS coexisted in the City Heights area of San Diego without conflict. But by 2017, there was "major conflict" between the two groups. After this rift, RTS members started carrying guns. Eastside sought to absorb RTS into the gang but Torres was not interested, testifying "I just like to do art." Dominguez knew that Eastside was "looking for" RTS members to assault.

B. The Events Leading Up to the Shooting

The Villa Escondido apartments in City Heights was a hub for Eastside. Gang member Edwin Garcia lived there, and his cohorts often gathered in front of the building. It is located within territory also frequented by RTS.

In the afternoon and into early evening of April 1, 2017, Sanabria, Nava, Coronado, Luna, and Garcia were listening to music, drinking beer, and smoking PCP-laced cigarettes in a small enclosed area by the trash dumpster at Villa Escondido. A photo taken that day shows, from left to right, Nava, Coronado, Luna, and Garcia. Garcia, holding a knife, also had a machete strapped to his pants. Sanabria is not pictured because he took this photograph.

In the early evening of April 1, Dominguez and Torres were walking in the alley behind Villa Escondido. This is the area on the other side of the metal gate and fence shown in the photograph. Torres had a .45-caliber semiautomatic gun; Dominguez, a 9-millimeter.

Sanabria was standing inside the enclosure, next to the metal gate shown in the right center of the photo. He was on the phone with his pregnant girlfriend, C.B., who was in a drug rehabilitation facility. According to Coronado, Sanabria was telling C.B. how much he loved her and was looking forward to being a father. But C.B. testified she was upset and yelling at Sanabria:

"Q: During that conversation, you were—I mean, you were yelling at lot at [Sanabria], right?

"A: Yeah.

"Q: You were accusing him of using drugs?

"A: Yeah.

"Q: And he told you, [‘]No, I'm just drunk as fuck.[']

"A: Yes."

When the call ended, Luna was standing about five feet from Sanabria. Coronado was between the dumpster door and the corner of the dumpster wall. Nava was near the end of the alcove. Garcia was out of the enclosure, at the corner of the building. At trial, Coronado placed initials where he claimed each person was...