People v. Dominguez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD271651
- Trial judge
- Polly H. Shamoon
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- William S. Dato (author), Truc T. Do, Michele M. Castillo
Analysis
The trial court accepted a stipulated guilty plea and imposed a sentence of 28 years and 8 months in prison following a remand for retrial after a prior appeal reversed a jury conviction. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on independent review under Wende/Anders, including the defendant's double jeopardy concern.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Affirmance of judgment following stipulated plea and sentencing“We have independently reviewed the record and agree there are no reasonably arguable issues. Accordingly, we affirm the judgment.” | de novo | correct | agree with court The court applied the Wende/Anders standard of review, requiring an independent examination of the record to determine if any reasonably arguable issues exist. The court found no such issues, specifically addressing the defendant's double jeopardy concern by noting the prior reversal was based on instructional error, not insufficiency of evidence, which permits retrial. The reasoning is supported by the cited authorities and the procedural history provided in the opinion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must file a brief identifying no arguable issues and the court must independently review the record to ensure no reasonably arguable issues are overlooked.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may file a brief stating no arguable issues if the court independently reviews the record and finds no error.
- relied: People v. Hernandez (2003) 30 Cal.4th 1 — Double jeopardy does not bar retrial when a conviction is set aside on appeal for reasons other than insufficiency of evidence.
- relied: People v. Dominguez (2021) 66 Cal.App.5th 163 — The prior appeal in this case reversed the judgment based on instructional error, not insufficiency of evidence, and remanded for a new trial except for acquittals.
- relied: In re Martinez (2003) 30 Cal.4th 29 — Prereversal prison time is not presentence custody, and credit accrual should be calculated according to the defendant's ultimate postsentence status.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders framework to conduct an independent review of the record. It specifically addresses the defendant's double jeopardy concern with the correct legal standard from People v. Hernandez, distinguishing between reversals for insufficiency of evidence and other grounds like instructional error.
How this analysis was made · dispute it
unusual dispositionAfter this court reversed Dominguez's second degree murder and attempted murder convictions for instructional error, he pleaded guilty on retrial to voluntary manslaughter and two counts of assault with a semiautomatic firearm with enhancements, and the trial court imposed the stipulated sentence of 28 years, 8 months, restitution, fines, and 2,819 days of custody credit. Appellate counsel filed a Wende brief, Dominguez filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issue (including the double jeopardy concern noted in the notice of appeal), and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of the stipulated guilty plea and imposition of the agreed 28-year, 8-month sentence with fines, fees, and victim restitution“The trial court imposed the agreed-upon sentence of 28 years, 8 months in prison.” | unclear | correct | agree with court The opinion recites that Dominguez was advised of and waived his constitutional rights and his right to appeal the stipulated sentence, confirmed the plea was knowing and voluntary, and received exactly the bargained-for sentence, which is far lower than the original 65-to-life plus 16 years. Nothing in the recited record suggests an arguable defect, and the Wende independent review standard was properly invoked. The court did not, however, discuss the absence of a certificate of probable cause or the appeal waiver, which would ordinarily limit the appeal. |
Retrial and conviction after appellate reversal did not violate double jeopardy (issue raised in defendant's notice of appeal)“As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence” | de novo | correct | agree with court The prior reversal rested on instructional error, not insufficiency of the evidence, so retrial was permitted under People v. Hernandez, and the Second Amended Information charged only voluntary manslaughter and assault, offenses lesser than or different from the counts on which the jury acquitted (first degree murder, premeditation, and the third attempted murder). The reasoning tracks settled law. |
Award of 2,819 days of custody credit, with local conduct credit limited to 15 percent under section 2933.1 and prison time excluded from presentence conduct calculation“prereversal prison time ought not be viewed as presentence custody, and [his or] her credit accrual should be calculated in accordance with [his or] her ultimate postsentence status” | unclear | correct | agree with court Voluntary manslaughter is a violent felony, so the 15 percent cap of section 2933.1 applies; 15 percent of 1,941 local-custody days is 291 days, matching the award. Under In re Martinez, prereversal prison time is credited by the Department of Corrections rather than as presentence conduct credit, so the court's footnote correctly explains the computation. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Constitutional framework for appointed counsel's no-merit brief and the appellate court's independent review of the record.
- relied: People v. Dominguez (2021) 66 Cal.App.5th 163 — Prior appeal reversing the murder and attempted murder convictions for instructional error and remanding for retrial except on acquitted charges and allegations.
- relied: People v. Hernandez (2003) 30 Cal.4th 1 — Double jeopardy does not bar retrial of a defendant whose conviction was reversed on appeal on grounds other than insufficiency of the evidence.
- relied: In re Martinez (2003) 30 Cal.4th 29 — Prereversal prison time is not presentence custody; conduct credit for it is calculated according to the defendant's ultimate postsentence status.
- missed: People v. Panizzon (1996) 13 Cal.4th 68 — A challenge to a sentence that was an integral part of a negotiated plea is in substance a challenge to the plea's validity and requires a certificate of probable cause under Penal Code section 1237.5; the opinion notes no certificate was sought but does not address the resulting limits on the appeal.
The appellate opinion: sound with gaps — The court correctly applied Wende and Anders, and its disposal of the double jeopardy concern rests squarely on Hernandez and the scope of the prior remand, while its credit computation is consistent with section 2933.1 and Martinez. It did not, however, address the effect of the missing certificate of probable cause or the express appeal waiver under Panizzon and section 1237.5, which bear on what issues were even cognizable on appeal.
Opinion
Filed 3/20/25 P. v. Dominguez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084002
Plaintiff and Respondent, v. (Super. Ct. No. SCD271651)
LUIS A. DOMINGUEZ, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Luis A. Dominguez appeals from the judgment entered pursuant to a stipulated plea agreement. His appellate counsel filed a brief stating no arguable issues could be found. (See generally People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) We have independently reviewed the record and agree there are no reasonably arguable issues. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In November 2018, the prosecution charged Dominguez1 with one count of murder (Pen. Code,2 § 187, subd. (a); count 1) and three counts of attempted murder (§§ 187, subd. (a), 664; counts 2–4). Regarding the murder charge, the prosecution alleged that he personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). On one of the attempted murder charges (count 2), it was alleged that he personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and inflicted great bodily injury (§ 12022.7, subd. (a).) As to the remaining attempted murder charges, it was alleged that he personally discharged a firearm (§ 12022.53 subd. (c).)3 A jury acquitted Dominguez of first degree murder but convicted him of second degree murder and two counts of attempted murder. As to those counts, the jury found true all firearm and great bodily injury allegations, but not true that the attempted murders were premeditated. The jury acquitted him of the third count of attempted murder altogether. The trial court sentenced him to an indeterminate term of 65 years to life, consecutive to a determinate term of 16 years in prison. (People v. Dominguez (2021) 66 Cal.App.5th 163, 168 (Dominguez).)
1 Abraham Leal Torres was charged as a codefendant in this case. He is not a party to this appeal. 2 All further undesignated statutory references are to the Penal Code. 3 On our own motion, we take judicial notice of the Amended Information filed November 29, 2018, which is included in the record of Dominguez’s prior appeal. (Evid. Code, §§ 459, subd. (a), 452, subd. (d)(1).) 2 On appeal, we reversed the judgment and remanded for a new trial (except for the charges and allegations on which the jury returned a verdict of acquittal) based on instructional error. (Dominguez, supra, 66 Cal.App.5th at pp. 168–169, 189.) The remittitur issued in September 2021. Over the next several months, the parties prepared for retrial. In January 2024, the prosecution filed a Second Amended Information charging Dominguez with one count of voluntary manslaughter (§ 192, subd. (a); count 1) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 2–3). As to all counts, it was alleged that he personally used a firearm (§ 12022.5, subd. (a)), and with respect to count 2 only, that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The parties entered into a stipulated plea agreement. Dominguez pleaded guilty to all counts and admitted all allegations in the Second Amended Information in exchange for a prison sentence of 28 years, 8 months. Specifically, on count 1, he agreed to be sentenced to the upper term of 11 years for the voluntary manslaughter, plus the upper term of 10 years for the firearm enhancement.4 On counts 2 and 3, he agreed to serve two years for each assault, 16 months for each firearm enhancement, and one year for the great bodily injury enhancement. In entering his guilty plea, Dominguez acknowledged and waived his constitutional rights, as well as his right to appeal the stipulated sentence. He confirmed that he was entering his plea knowingly, freely, and voluntarily. The trial court imposed the agreed-upon sentence of 28 years, 8 months in prison. It ordered Dominguez, jointly and severally with Torres, to pay $10,416 in direct victim restitution, with further amounts to be determined 4 Dominguez admitted that the voluntary manslaughter victim was particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(3)). 3 (§ 1202.4, subd. (f)). It also imposed a $10,000 restitution fine (id., subd. (b)), a $120 court operations assessment (§ 1465.8), and a $90 conviction assessment (Gov. Code, § 70373). Dominguez was awarded 2,819 days of custody credit, including 2,528 days of actual credit and 291 days of local conduct credit pursuant to section 2933.1.5 Dominguez personally filed a timely notice of appeal, specifically noting his concern that his double jeopardy rights were violated. He did not request a certificate of probable cause.
DISCUSSION
Appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 indicating that she identified no reasonably arguable issues for reversal on appeal. She has asked this court to review the entire record as mandated by Wende. We offered Dominguez the opportunity to file a supplemental brief on his own behalf. He has not responded. Our review of the record as mandated by Wende and Anders has disclosed no reasonably arguable appellate issues. Double jeopardy is not an issue because his convictions were reversed based on instructional error, not insufficiency of the evidence, and he was not subject to retrial on the charges and allegations the jury previously acquitted him of. (Dominguez, supra, 66 Cal.App.5th at pp. 169, 187–189; People v. Hernandez (2003) 30 Cal.4th 1, 3 [“As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence”].)
5 Dominguez was in local custody for 1,941 days, so his local conduct credits are 15 percent of that amount. (See In re Martinez (2003) 30 Cal.4th 29, 31 [a defendant’s “prereversal prison time ought not be viewed as presentence custody, and [his or] her credit accrual should be calculated in accordance with [his or] her ultimate postsentence status”].) 4 Competent counsel represented Dominguez on this appeal.
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
Cites, in this corpus
- In Re Martinez S103581 · 2003-06-20
- People v. Hernandez S105271 · 2003-03-20
- People v. Wende Crim. 20851 · 1979-10-12