People v. Dominguez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. CR113183
- Trial judge
- Howard H. Shore
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, O'Rourke
Analysis
The trial court denied Dominguez's petition for resentencing under Penal Code section 1170.95, finding he was the actual killer based on his guilty plea admissions and a prior appellate opinion. The Court of Appeal affirmed the denial, concluding that the record contained no arguable issues for reversal after a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“In the order, the trial court found Dominguez was the actual killer.” | unclear | correct | agree with court The appellate court affirmed the denial, stating it had reviewed the entire record as required by Wende and Anders and found no arguable issues for reversal. The trial court's finding that Dominguez was the actual killer was supported by his signed change of plea admitting he shot and killed the victim with specific intent, as well as the prior unpublished opinion from 1992 which made the same finding. Under section 1170.95, a defendant who is the actual killer is not eligible for resentencing, so the trial court's denial was legally correct based on the undisputed facts in the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable errors when no issues are identified, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation in an appeal where no arguable issues exist, requiring a brief identifying potential issues and a court review of the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for arguable errors. It correctly identifies that the trial court's denial was based on the defendant's status as the actual killer, which is a statutory bar to relief under section 1170.95, and finds no error in that determination based on the clear admissions in the record.
The trial court denied Larry Dominguez's Penal Code section 1170.95 resentencing petition, finding he was the actual killer based on his 1990 guilty plea admission that he shot and killed the victim with intent to kill and on this court's 1992 opinion. On appeal, counsel filed a Wende brief, Dominguez filed a supplemental submission attacking his plea and alleging judicial bias and lack of jurisdiction, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 resentencing petition on the ground that Dominguez was the actual killer and therefore failed to make a prima facie showing of eligibility“In the order, the trial court found Dominguez was the actual killer. The court noted the change of plea signed by Dominguez included an admission he shot and killed the victim with the specific intent to kill.” | unclear | correct | agree with court Section 1170.95 relief is unavailable to a defendant who was the actual killer, and the record of conviction here includes Dominguez's own plea admission that he shot and killed the victim with intent to kill, plus a prior appellate opinion so finding. On that record the petition fails as a matter of law at the prima facie stage, so denial was proper regardless of the standard of review. The opinion does not state a standard of review or cite section 1170.95 case law, but the result follows directly from the statute's text. |
Rejection of Dominguez's supplemental contentions that his 1990 plea was invalid, that the successor judge was biased, and that the successor judge lacked jurisdiction because the original judge's appointment of counsel amounted to a merits ruling“Dominguez argues [TRIAL JUDGE] did not have jurisdiction to deny his petition. Based on this record, we conclude the supplemental brief has not raised any arguable issues for reversal on appeal.” | unclear | correct | agree with court The validity of the 1990 plea was finally adjudicated in the 1992 appeal and cannot be relitigated through a section 1170.95 petition. Appointment of counsel is not a merits determination and does not divest a successor judge of authority to rule on the petition; the bias claim rests on matters outside the record. The court's summary rejection is defensible, though it offers little reasoning. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit must file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The result is clearly correct because an admitted actual killer is ineligible for section 1170.95 relief as a matter of law, and the court properly declined to revisit the previously affirmed 1990 plea. The opinion, however, states no standard of review, cites no section 1170.95 authority on the prima facie inquiry, and does not address then-recent published decisions questioning whether Wende review applies to postconviction appeals, though the court's decision to review the record anyway caused no prejudice.
Opinion
Filed 10/14/20 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, D077552
Plaintiff and Respondent, v. (Super. Ct. No. CR113183)
LARRY N. DOMINGUEZ, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed. Larry N. Dominguez, in pro. per.; and Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1990, Larry N. Dominguez pleaded guilty to second degree murder (Pen. Code,1 § 187, subd. (a)) and admitted the use of a firearm (§§ 12022.5, subd. (a) and 1192.7, subd. (c)(8)). He also admitted one count of jail escape. Dominguez was sentenced to an indeterminate term of 17 years to life, to be 1 All further statutory references are to the Penal Code. served concurrently with a sentence he was already serving for convictions for attempted murder. Dominguez moved to withdraw his guilty plea, but the motion was denied. Dominguez appealed and this court affirmed the judgment and sentence in an unpublished opinion filed August 17, 1992. (People v. Dominguez (Aug. 17, 1992, D013873) [nonpub. opn.].) In his guilty plea, Dominguez stated that he “did shoot and kill a human being with intent to kill in San Diego County.” In our opinion filed in 1992, we observed that the evidence was Dominguez personally shot and killed the victim. In 2019, Dominguez filed a petition under section 1170.95 for resentencing of his murder conviction. The trial court appointed counsel to represent him. In the ensuing months, Dominguez requested different counsel and was ultimately allowed to represent himself. The trial court denied the petition in a written order filed January, 2020. In the order, the trial court found Dominguez was the actual killer. The court noted the change of plea signed by Dominguez included an admission he shot and killed the victim with the specific intent to kill. The order also noted this court’s prior opinion found Dominguez was the person who shot and killed the victim. Dominguez filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Dominguez the opportunity to file his own brief on appeal. Dominguez has responded with a 2 lengthy submission containing multiple complaints. We will address his submission below. STATEMENT OF FACTS The facts of the underlying offense are fully set forth in our prior opinion. We decline to repeat them here. (People v. Dominguez, supra, D013873.) DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether Dominguez’s invocation of his Sixth Amendment right to self-representation and waiver of that right was knowing and voluntary; 2. Whether the trial court followed proper statutory procedure in denying Dominguez’s section 1170.95 petition; and 3. Whether the trial court erred in finding Dominguez had not made prima facie showing of eligibility for resentencing under section 1170.95. In his submission, Dominguez raises a number of possible issues, mostly based on matters outside the record. He complains at length about his 1990 guilty plea contending it was not valid and his attorney was ineffective. This court upheld the guilty plea in our 1992 opinion. (People v. Dominguez, supra, D013873.) Dominguez argues he was prejudiced in the present case by reason of delay while he repeatedly asked for new counsel and ultimately self- representation. During the delay, Judge Louis R. Hanoian retired and he was replaced by Judge Shore, who he claims was biased. Dominguez also 3 argues Judge Hanoian had already found the petition for resentencing was meritorious because he had appointed counsel. From that premise, Dominguez argues Judge Shore did not have jurisdiction to deny his petition. Based on this record, we conclude the supplemental brief has not raised any arguable issues for reversal on appeal. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Dominguez on this appeal. DISPOSITION The order denying Dominguez’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12