People v. Dominguez, No. H022727.

CourtCalifornia Court of Appeals
Writing for the CourtRushing
Citation124 Cal.App.4th 1270,22 Cal.Rptr.3d 249
PartiesThe PEOPLE, Plaintiff and Respondent, v. Fernando DOMINGUEZ, Defendant and Appellant.
Decision Date14 December 2004
Docket NumberNo. H022727.
22 Cal.Rptr.3d 249
124 Cal.App.4th 1270
The PEOPLE, Plaintiff and Respondent,
v.
Fernando DOMINGUEZ, Defendant and Appellant.
No. H022727.
Court of Appeal, Sixth District.
December 14, 2004.
As Modified on Denial of Rehearing January 13, 2005.
Review Granted March 30, 2005.

[22 Cal.Rptr.3d 251]

Dallas Sacher, Santa Clara, under appointment by the Court of Appeal, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General, for Plaintiff and Respondent.

RUSHING, P.J.


Fernando Dominguez brings this appeal from a judgment convicting him of various criminal offenses arising from the rape and killing of Irma Perez in the early morning hours of August 23, 1997. Charges were originally brought against defendant and another man, Jose Alfredo Martinez, but Martinez died before trial. Defendant argues that numerous errors helped to produce a verdict finding him of guilty of rape, aggravated kidnapping, and first degree felony murder. We have concluded that the verdict must be reversed on two

22 Cal.Rptr.3d 252

of the three charges. Prejudicial error occurred in connection with the murder charge because, while the evidence suggested that the victim might have died at the hands of Martinez, and the jury explicitly sought guidance concerning the law applicable to such a situation, the instructions addressed only the possibility that defendant himself was the killer. We will also reverse the kidnapping conviction because the movement shown by the evidence did not satisfy the requirements for the "asportation" element of that offense. We find defendant's other claims of error unpersuasive, and therefore affirm the rape conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Irma Perez was last seen alive on the night of August 22-23, 1997, when an officer saw her outside a Hollister bar along with defendant and two other men. She was intoxicated, but said she was okay and was going home. The officer saw her and her three male companions get into a cab.

A cabdriver testified that around 2:00 a.m., he picked up Ms. Perez and three men in Hollister and drove them to a labor camp near Southside Road in San Benito. Two of the men rode in the back seat, while the third rode in the front seat with Ms. Perez, with whom he held hands. At the entrance to the labor camp, the man in the front seat and one of the men in the back seat got out of the cab. The driver turned around and drove Ms. Perez and the remaining man a short distance back down a hill toward Southside Road before stopping again. At that point Ms. Perez got out of the cab and began walking back toward Southside Road and town. The remaining male passenger paid the driver, got out, and began walking after Ms. Perez. After making an entry in his logbook, the cabdriver drove back to town, passing Ms. Perez, who was followed by the man who had paid and then by the other man who had been in the back seat.

On August 26, 1997, a tractor driver unearthed Ms. Perez's partly clad body in a walnut orchard next to Southside Road. Marks in the soil suggested that she had been dragged from a point near the road to the location where the body was found, about 10 rows into the orchard. Near a corner of the orchard, perhaps 25 feet from the road and 10 to 12 feet below it, officers found a pair of shoes and, nearby, a shallowly buried pair of blue jeans together with underwear and a sock. A distance of about 25 yards separated the clothing from the nearest end of the drag marks.

A pathologist testified that Ms. Perez died as the result of strangulation and blunt force injury. He observed bruising of the vaginal walls indicative of "very forceful sexual penetration," and also found evidence that she had been choked, beaten, and dragged. Two criminalists testified that deoxyribonucleic acid (DNA) testing revealed the presence of semen from two donors, the more recent of whom was defendant. The other, more remote donor was the father of Ms. Perez's children, who testified that he had sex with her on the morning before she disappeared. Martinez was excluded as a donor.

After the discovery of the body, investigating officers failed in initial attempts to question defendant and Martinez because both men had left the labor camp. Defendant was arrested on September 4, 1997, and beginning the next day gave officers a series of what he later admitted were false accounts concerning the events of August 22-23, 1997. A complaint was filed on July 29, 1999, charging defendant and Martinez with murder, kidnapping for rape, rape, rape in concert, and mayhem. By August 2000, Martinez was reported to have a

22 Cal.Rptr.3d 253

medical condition preventing his attendance at a preliminary hearing. At the trial in January 2001 it was stipulated that he had died of cancer.

Defendant testified that in August 1997 he was staying at the San Benito labor camp while working as an apple picker. On the night in question he, Martinez, Lionel Salcedo, and Ms. Perez left the bar together and rode in a cab to the camp. After they got out, defendant walked with Ms. Perez while expressing his desire to have sex. She at first demurred, saying she did not know him. However, he testified, she eventually did have sex with him at the side of the road. He testified that she acted of her own free will and never told him he "could not do that." He said that after the act of sex was finished, Martinez arrived, upset and angry "because he had been dancing and talking to her before." Defendant had intended to walk her home, but now returned to the camp, leaving her with Martinez, because the latter "was very angry and he told me he wanted to take her."1

The case was submitted to the jury on charges of murder (Pen.Code, § 187, subd. (a)), kidnapping for rape (former Pen. Code, § 208, subd. (d)), and rape (Pen. Code, § 261, subd. (a)(2)).2 The jury returned verdicts of guilty on all three counts. The trial court imposed a sentence of 25 years to life on the murder charge and stayed the sentences on the other counts pursuant to Penal Code section 654. Defendant filed this timely appeal.

DISCUSSION

I. Felony Murder Instruction

A. Background

The only instruction given to the jury on the substantive law of murder was the following, which is based upon CALJIC Nos. 8.10 and 8.21: "Every person who unlawfully kills a human being during the commission or attempted commission of rape is guilty of the crime of murder in violation of Section 187 of the Penal Code. In order to prove this crime, each of the following elements must be proved: [¶] The human being was killed and the killing occurred during the commission or the attempted commission of the crime of rape. The unlawful killing of a human being, whether intentional or unintentional or accidental which occurred during the commission or attempted commission of the crime of rape is murder in the first degree when the perpetrator had a specific intent to commit the crime. Specific intent to commit rape and the commission or

22 Cal.Rptr.3d 254

attempted commission of such crime must be proved beyond a reasonable doubt."

The defense requested that the jury be further instructed in the language of CALJIC No. 8.27, which states, "If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of (felony [i.e., rape]), all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental. [¶] [In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the ([rape]) at the time the fatal [blow was struck] [wound was inflicted].] ..."

The record does not disclose the fate of this request except that the court did not give the requested instruction.3 After the jury had deliberated for nearly a day, it sent two notes to the court. One note stated, "Elements. [¶] 1. A human being was killed. [¶] 2. Murder occurred." The other stated, "We are unclear of the criteria of the statute. To find Dominguez guilty of felony murder (187). Did Dominguez only need to be present at the time of Irma's death, or did he need to kill her himself. We are clear about the rape element of the crime." The court's handwritten response stated, "I cannot offer anything more than the wording of Insts 8.10 and 8.21 which I previously read."4 Less than an hour later, the jury returned its verdict.

B. Error

The felony murder doctrine is codified in Penal Code section 189, which defines first degree murder to include "[a]ll murder which is ... committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289." Although the statute refers only to "murder" so committed, it has long been construed to mean that any killing in the course of the commission or attempted commission of an enumerated felony may render the killer guilty of first degree murder. (People v. Coefield (1951) 37 Cal.2d 865, 868, 236 P.2d 570 [killing in course of robbery "is murder of the first degree by force of section 189 of the Penal Code, regardless of whether it was intentional or accidental"].) In People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the Supreme Court reaffirmed that construction, concluding that the statute creates "two kinds of first degree murder" which...

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