P. v. Dominguez
Filed 7/5/13 P.
v. Dominguez CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
FLORENCIO JOSE DOMINGUEZ,
Defendant and Appellant.
D060019
(Super.
Ct. No. SCD230596)
APPEAL from a judgment of the
Superior Court of
County, Bernard E. Revak
name="_ftnref1" title="">* and
Charles G. Rogers, Judges. Affirmed.
Patrick Morgan Ford, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Following a mistrial and the
subsequent dismissal of his murder charge, the jury in defendant Florencio Jose
Dominguez's second trial convicted him of first
degree murder (Pen. Code,
name="_ftnref2" title="">[1] § 187,
subd. (a); count 1) and conspiracy to commit murder (§§ 182, subd. (a)(1),
187; count 2). The jury also made true
findings Dominguez or a principal used a firearm causing the death of another
person (§ 12022.53, subds. (d) & (e)(1)), and he committed counts 1
and 2 for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)). The
trial court sentenced Dominguez to 25 years to life on count 1 and imposed a
consecutive 25-years-to-life enhancement for the firearm allegation. Sentences on the remaining count and
allegations were stayed.
Dominguez contends double
jeopardy barred his retrial in the second case after the jury deadlocked
and the court expressly dismissed without prejudice the first case. Alternatively,
Dominquez contends his conviction must be reversed because the court (i) prejudicially
erred in connection with a series of evidentiary rulings and (ii) improperly responded
to a question posed by the jury during its deliberations.
As we explain, we disagree with these contentions and affirm Dominquez's
judgment of conviction.
FACTUAL AND PROCEDURAL
BACKGROUND
This case
involves the Shelltown 38th Street gang from the Shelltown neighborhood of
southeast San Diego (Shelltown gang). The
Shelltown gang territory includes Mountain View Park, also known as Ocean View
Park (collectively, the park). Both
Dominguez, whose gang monikers are "Speedy" and "Chunky,"
and the murder victim in this case, Moises Lopez, whose gang moniker was "Smokey,"
were members of the Shelltown gang, as was Edwin "Little Crooks"
Quintanilla, the victim of an earlier fatal shooting connected with Moises's murder.
In early July 2008, Edwin was with Moises
and another Shelltown gang member when a rival gang member approached. Edwin challenged the rival gang member who, in
response, pulled out a gun. Moises and
the other Shelltown gang member ran. The
rival gang member then fatally shot 17-year-old Edwin. Two days after Edwin was killed, police
interviewed his sister, Marla Quintanilla.
Marla stated during the interview Dominguez had told her he was "gonna
get them little dudes because . . . they [left her] brother there [lying]
down."
In the evening of September 13, 2008,
several people heard gunshots coming from the park. Magdalena Lopez and her daughter Jessica were
driving home sometime after 8:00 p.m. that night when Magdalena saw a group of
young men gathered in the park. Magdalena's
home faced the park.
Magdalena testified a little while later she went outside after she heard
screams coming from the park. She next heard
and saw two people arguing in the park. The
argument turned physical. Magdalena saw a
man in dark clothing repeatedly strike a "young man" laying on the
ground. The man in dark clothing left
and walked up a hill. Magdalena next saw
two other men approach the victim, and they too began beating him. After a few minutes, the men picked up the victim
and dragged him up the hill where the man in dark clothing waited. The three men huddled around the victim. Shortly thereafter, the two men moved away,
leaving the man in the dark clothing closest to the victim.
Magdalena testified initially she thought the three men were going to
leave the victim alone. However, she saw
the man in dark clothing "raise[] his hand [and then] lower[] it . .
. like he was pointing" at the
victim. Magdalena then thought, "'Oh,
my God'" as she heard a gunshot and saw "fire" coming from the
gun as it was discharged. Magdalena heard
at least two more gunshots as she ran inside the house.
Jessica testified around 9:00 p.m. on the night of the shooting she heard
screaming coming from the park. Jessica
looked out the kitchen window and saw a man in the park in dark clothing
hitting another man. Jessica estimated
the beating lasted about two or three minutes.
When interviewed by police, Jessica reported hearing the man in dark
clothing say to the victim in English, "I'm going to kill you." Jessica also saw two other men beat the
victim. A few minutes later, she saw the
two men drag the victim up a hill. Jessica
saw the man in dark clothes standing near the victim and gesture as if he was
pointing a gun at the victim. Next, she
testified she heard five gunshots. Jessica
saw some of the shots being fired and heard the others as she was calling
police a second time.
Meliton Puente testified on the night of the shooting he was living in
a residence adjacent to the park. As he
was inside watching television, he heard at least three gunshots. Meliton went outside and from his porch saw
two police officers. One of the officers
had his gun drawn. Meliton saw two Hispanic
women and a Hispanic man leaving the park; he described the man as bald,
between the ages of 22 to 25 and wearing a white T-shirt. Meliton testified the man appeared to be trying
to hide "something."
Meliton testified he next walked into the park and approached a police
officer who was attempting to speak with a young man that had been shot. The victim was screaming and crying.
Meliton's son, Julio Ramirez, testified that about 8:00 p.m. on the
night of the shooting, he was listening to music while sitting in his car,
which he had parked across the street from his family residence. Suddenly, Julio saw a green car driven by a
female pull up behind him. The female
and her male passenger got out of the car and started arguing. The male passenger was muscular, wore a white
T-shirt and black tank top, and was bald.
Concerned, Julio got out of his car and starting walking toward his home. He saw the female and male walk up a "dirt
hill." Julio also saw two other
cars pull up behind the green car. There
were two men in each car. About 10 minutes
later, Julio heard gunshots coming from the park. He went outside as police were arriving on
the scene.
Hesneyda Buendia testified at the time of the shooting she lived in a
house adjacent to the park. Hesneyda was
not home on the night of the shooting.
However, early the next day following the shooting, she found a white T-shirt
stained with blood hanging off a wall in her yard and blood drops on her patio. Hesneyda notified police.
About 9:30 p.m. the night Moises was
murdered, San Diego Police Officers Samuel Euler and Michael Weaver responded
to a call of people fighting in the park.
When they arrived, they heard four or five gunshots ring out. The officers cautiously approached a young
man later identified as Moises laying on the ground in the park. Moises was having difficulty breathing, had
gunshot wounds to his right and left torso, and had marks on the back of his
head consistent with blunt-force trauma.
Officer Kelvin Lujan also responded
to a report of gunfire in the park.
Officer Lujan came upon the victim in the park, later identified as
Moises. In addition to telling Officer
Lujan his name and age, the victim in response to the officer's repeated
question said,"'I don't know who shot me.'" Moises was 15 years old at the time he died. He was shot five times, and the fatal shot went
into his left lung and through his heart.
Police found a 12-pack of beer near
the site of the murder. A half-full
bottle was sitting on top of the pack; condensation on the bottle indicated it
was cold. Police also found at least
four beer cans near a green car stopped in an alley adjacent to the park. The headlights of the car were left on, and its
rear doors were wide open. Police also
found a pair of bloody black gloves in the yard of a residence near the park.
About seven months after the murder,
police arrested 14-year-old Andres L. for tagging. Andres identified himself as "Stalker"
from the Shelltown gang and identified Dominguez as "Speedy" from
that same gang. During the police interview,
Andres told police he was at the park on the night of the shooting and saw Dominguez
shoot and kill Moises. Andres explained
Speedy had killed Moises for running away when Edwin, Moises and another
Shelltown gang member were confronted by a rival gang member, who ended up
killing Edwin. This interview was played
for the jury.
At trial, Andres testified he initially lied during the police
interview but later told the officers the truth. Andres also testified he was concerned about
being a "snitch" and fearful he would get a "green light,"
which meant the gang would try and kill him for snitching to the police about
the murder. He testified while he was in
fourth and fifth grade he was enrolled in special education classes because it
was hard for him to learn things; he dropped out of school in the sixth grade
and started "kicking it" with members of the Shelltown gang, which
included drinking beer and smoking marijuana.
Andres testified before he went to the park on the day Moises was murdered,
he consumed two or three 40-ounce beers and smoked about four grams of
marijuana with other Shelltown gang members.
As it was getting dark, Andres saw other Shelltown gang members in the
park, including Dominguez and Moises. Andres
continued to drink beer and smoke marijuana in the park with other Shelltown
gang members.
Andres testified while he was urinating in the park he heard a gunshot,
looked over his shoulder and saw "Speedy" (i.e., Dominguez) shoot "Smokey"
(i.e., Moises) as Smokey lay on the ground.
Andres said there were two other Shelltown gang members nearby when
Speedy shot Moises.
Andres testified there were bright lights above the trees and lights near
the bathrooms in the park. Andres heard more
gunshots as he ran and hid in a concrete sewer about two blocks away from the
park.
Natalie Elias testified she heard at least five gunshots coming from
the park on the night of the murder. Natalie
saw two people running out of the park.
She described one of those persons as Hispanic, bald and in his late
twenties, who wore a white tank top shirt and blue jeans. The other person jumped the fence in her
yard, saw Natalie and asked if he could hide at her house. Natalie described this second person as a
young man in his teens, who wore a dark shirt, blue jeans and a hat.
Glennys Berumen testified she and Moises went to the same high school
and dated for about a year before his murder.
Glennys stated after Moises's death, Moises's friend, Josue Gutierrez,
approached her as she was walking in the park.
Glennys testified she had known Josue since elementary school, he was a
Shelltown gang member who went by the moniker "Scrappy" and, at that
time, she considered Josue to be her "friend."
According to Glennys, Josue was drinking a beer, appeared "kind
of drunk" and began to cry as he told her he was in the park on the night
Moises was murdered, saw "Speedy" beat and shoot Moises, and then saw
Speedy leave the park in a car driven by Siria Ford, whose boyfriend, Vandal,
was also a member of the Shelltown gang.
Josue also told Glennys he saw "Stalker" (i.e., Andres) in the
park at the time of the killing.
Glennys testified Josue also told her Josue and Moises had been at a
barbecue on the day of the shooting and, at the barbecue, Dominguez and Moises
argued about Edwin's death. Glennys said
she and Josue are no longer friends because of threats (discussed
she received prior to her testimony.
Josue testified he was not a gang member, he did not know Glennys and
he did not tell anyone, including her, that he had seen Dominguez shoot Moises. Josue also testified he was not at the park
on the night of the shooting but instead was at a quinceanera party near the
park.
Dominguez's DNA was found on two
beer bottles near the murder site. Moises's
DNA was found on the black gloves police recovered from the yard near the park. The insides of the gloves were tested for the
retrial and found to contain a mixture of DNA from at least four individuals,
with Moises being a major contributor to the mixture. Dominguez and Josue were also identified as possible
minor contributors to the mixture.
name="_ftnref4" title="">[3]
DISCUSSION
A.
Double Jeopardy
Dominguez contends double jeopardy barred his second trial because
Judge Jeffrey Fraser, who presided over the first trial, dismissed the case allegedly
because the evidence was insufficient as a matter of law to support a murder conviction.
1.
After the jury deadlocked nine to
three in favor of acquittal in the first trial (Super. Ct. San Diego County, No.
SCD225579), Judge Fraser declared a mistrial and dismissed the case
follows:
"Well, this is a tough call because a 15-year-old boy was
executed in a park. [¶] The evidence shows the defendant is, in fact,
the shot-caller for Shelltown. There is
no question about that. He has a double
life. He's a good employee and a dad and
a husband; but he also has a girlfriend and is an active gang member, in fact,
probably the head of that gang. There is
no question he was in the park. He was
around the murder. We're not talking 50
feet away. We're talking near the
murder. There is a cold beer that
indicates that. So he did it, or he
obviously knows who did.
"The question in this case, though, is one of did the D.A. meet
their burden? That's the question. I put aside the evidence the defense put on
because the defense evidence simply confirmed the fact that he's the
shot-caller for Shelltown. The question,
is as I indicated before, did the D.A. meet their burden with Lopez, Zepeda or
the DNA? And any of those individually would be enough, perhaps, to prove beyond
a reasonable doubt; and together you would think they would be, but we have
nine people that essentially said the D.A. failed to meet their burden.
"That's what this case is all about. It is about the D.A. meeting his burden of
proof, which is beyond a reasonable doubt.
He [the prosecutor] has shown by a preponderance the defendant is the
murderer. He has even probably shown by
clear and convincing evidence the defendant is the murderer. At this
point he has failed to meet -- I agree with the nine jurors. If I was to sit and make a call on this case
without a jury, I think the D.A. has failed to meet their burden
case . . . without
prejudice. There may come a time in
the future when someone else comes forward to say, either the defendant or
someone else. Because the defendant, if
he didn't pull the trigger, he knows who did.
He's standing right there. It may
be somebody else, but based on the current state of the evidence, that can't be
proven. And so at this point the matter
is dismissed without prejudice." (Italics added.)
The minute order stated the trial court denied the prosecution's
motion to retry the case, showed the defense brought a motion to dismiss the
case under section 1385
name="_ftnref5" title="">[4]
and stated the case was dismissed without prejudice. However, the minute order did not state the
reason for the dismissal.
The prosecution refiled the criminal
complaint (Super. Ct. San Diego County, No. SCD230596). Dominguez in response filed a demurrer
pursuant to section 1004, contending double jeopardy barred the refiled complaint
because the court in the first trial had dismissed the case against him for "lack
of evidence." The demurrer was
assigned to Judge Bernard Revak. The
record shows the court continued the hearing on the demurrer because it needed
additional time to review the pleadings, the demurrer and the opposition to the
demurrer, the applicable legal authorities and to read the relevant transcripts
from the first case.
In overruling the demurrer, Judge Revak ruled in part as follows:
"I think in reading what Judge Fraser did, what is important to
me is not so much what he said as what he didn't say. And taking a look at [People v.] Hatch and some
of the other cases that have interpreted this situation, he [Judge Fraser]
never said that there was legally insufficient evidence. And I think the cases discuss that
language. And obviously, there are
grounds for which a [section] 1385 could be ruled on and could be made and
would bar a retrial. But that wasn't
said by the Judge. And so he did not
find that there was no substantial evidence upon which a trier of fact could
find the defendant guilty beyond a reasonable doubt or that there was legally
insufficient evidence. Had he said that,
then I think the dismissal would bar a retrial.
"As I understand further the law, the District Attorney gets one
bite out of the apple, so to speak.
Meaning that if there's one dismissal, they can refile unless the judge
who grants it finds that[] there's legally insufficient evidence or that the
prosecution has engaged in serious or outrageous misconduct or that a retrial
is meant to harass a defendant. And none
of these were broached or discussed by the trial judge [in the first
case]. And I don't think that, based on this
entire record in this case, he made such a finding. So I think the two dismissal rule
applies. The district attorney has now
used up one. The second dismissal of
this case would bar a retrial. And so I'm
going to deny the demurrer or alternatively any similar motion on jeopardy
grounds."
title="">[5]
2. Governing
Law
"The
Fifth Amendment to the United States Constitution provides that '[n]o person
shall . . . be subject for the same offense to be twice put in
jeopardy of life or limb . . . .' This guarantee is applicable to the states
through the Fourteenth Amendment. [Citations.]
Similarly, article I, section 15, of the
California Constitution provides: 'Persons may not twice be put in jeopardy for
the same offense . . . .'" (
592-593; see also Stanley
v. Superior Court
(2012) 206 Cal.App.4th 265, 278.)
In the trial context, the core
protection of the double jeopardy clause is the prohibition of a retrial after
an acquittal. (Dowling v. United States (1990) 493 U.S. 342, 355.) An acquittal most often results when a jury
returns a not guilty verdict. However,
as relevant here, an acquittal for double jeopardy purposes can also occur when
a trial court grants a defendant's new trial motion for insufficient
evidence. (See Hudson v. Louisiana (1981) 450 U.S. 40, 44; People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) Although uncommon, an acquittal for double
jeopardy purposes can occur when a trial court dismisses a case pursuant to
section 1385
title="">[6]
if it determines the evidence to convict is insufficient as a matter of law. (People
v. Hatch (2000) 22 Cal.4th 260,
273 (Hatch).)
In Hatch, after the jury deadlocked on all counts, the trial court
declared a mistrial and dismissed the case pursuant to section 1385. In so doing, the trial court stated in the
minute order it was dismissing the case because "'no reasonable jury would
convict the defendant of the charges alleged in the information based on the
evidence presented in court.'" (
In response, the People refiled the same criminal charges and added nine
new counts based on the same incident between the defendant and a 16-year-old
minor, in which the minor claimed she had been sexually assaulted by the
defendant. (Id. at pp. 264, 266-267.)
The defendant filed a petition for habeas corpus in the trial court,
arguing the second prosecution was barred on double jeopardy grounds. The petition was assigned to a different
judge from the judge that presided over the prosecution of the first case. The court granted the petition because "'there
was not sufficient evidence to convict the defendant.'" (Hatch,
supra, 22 Cal.4th at p. 267.) The Court of Appeal affirmed the order
granting the habeas petition, ruling the "dismissal was equivalent to an
acquittal for legal insufficiency of the evidence" and as such, "barred
retrial." (Ibid.)
Our high court in Hatch reversed. It ruled a dismissal pursuant to section 1385
could not be construed as an acquittal for legal insufficiency unless the
record "clearly" indicated a court dismissed the case because the
evidence was "insufficient as a matter of law." (Hatch,
supra, 22 Cal.4th at p. 273.) Because the record in the case before it did
not so indicate, as the minute order merely stated that "'no reasonable
jury would convict . . . based on the evidence presented in
court,'" the court held retrial of the defendant was permitted. (Id. at
p. 274.)
The reasoning and holding of Hatch
govern the instant case. In reaching
its decision, the court in Hatch noted:
"[T]he United States Supreme Court
has long held that 'what constitutes an "acquittal" is not to be
controlled by the form of the judge's action.' [Citation.]
Rather, appellate courts 'must determine whether the ruling of the
judge, whatever its label, actually represents a resolution, correct or not, of
some or all of the factual elements of the offense charged.' [Citation.]
If a
evidence is insufficient as a matter of law, then the ruling bars retrial even
if it is patently erroneous or the court has no statutory authority to make it.
[Citations.] . . . [¶]
". . . Over 20 years ago, the
States Supreme Court held that the Fifth Amendment precludes retrial if a
court determines the evidence at trial was insufficient to support a conviction
as a matter of law. [Citation.] Thus, an appellate ruling of legal
insufficiency is functionally equivalent to an acquittal and precludes a
retrial. [Citation.] An analogous trial court finding is also an
acquittal for double jeopardy purposes. [Citations.] Where a court merely 'disagrees with a jury's
resolution of conflicting evidence and concludes that a guilty verdict is
against the weight of the evidence,' however, a reversal or dismissal on that
ground does not bar retrial. [Citation.]
"We have interpreted the double jeopardy clause of the California
Constitution in a similar manner. Because
the standard for determining the legal sufficiency of evidence is the same
under both federal and California law,
the 'rule of Burks [v. United
States (1978) 437 U.S. 1] applies to trials conducted in our courts.' [Citation.] We have also held that the reversal of a
conviction based on a reweighing of evidence does not bar retrial under
the California Constitution. [Citations.]
"In applying these principles, we have not distinguished between
trial and appellate court determinations of legal insufficiency because both
courts must apply the substantial evidence standard when making this determination.
[Citations.] Specifically, both trial and appellate courts
must review 'the whole record in the light most favorable to the judgment' and
decide 'whether it discloses substantial evidence . . . such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.' [Citation.] Under this standard, the court does not '"ask
itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt." [Citation.]
Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' [Citation.]
"Although a
trial court may apply the substantial
evidence standard when dismissing pursuant to section 1385, it usually does
not. Indeed, the standard for dismissal
under section 1385 is quite broad and permits dismissal under a variety of
circumstances. For example, a court may
dismiss under section 1385 if it believes 'the only purpose to be served by a
trial or a retrial is harassment of the defendant . . .
notwithstanding the fact that there is sufficient evidence of guilt, however
weak, to sustain a conviction on appeal.' [Citation.]
Thus, a section 1385 dismissal may not even 'involve a consideration of
the merits of the cause.' [Citation.]
"Because section 1385 dismissals often are not based on the
insufficiency of the evidence as a matter of law, we believe these dismissals
should not be construed as an acquittal for legal insufficiency unless the
record clearly indicates that the trial court applied the substantial evidence
standard. Specifically,
the record must show that the court viewed the evidence in the light most
favorable to the prosecution and concluded that no reasonable trier of fact
could find guilt beyond a reasonable doubt. [Citation.] Absent such a showing, we will assume the
court did not intend to dismiss for legal insufficiency and foreclose
reprosecution.
"In doing so, we do not intend to impose rigid
limitations on the language trial courts may use to dismiss for legal
insufficiency of the evidence pursuant to section 1385. Certainly, courts need not restate the
substantial evidence standard or use certain 'magic words' whenever they
determine that the evidence is insufficient as a matter of law. We merely ask trial courts to make their
rulings clear enough for reviewing courts to confidently conclude they viewed
the evidence in the light most favorable to the prosecution and found that no
reasonable trier of fact could convict.
"This simple request properly balances the competing interests
embodied in the constitutional prohibitions against double jeopardy. Although repeated prosecutions unfairly burden
a defendant and increase the risk of conviction through sheer perseverance, 'a
defendant's valued right to have his trial completed by a particular tribunal
must in some instances be subordinated to the public's interest in fair trials
designed to end in just judgments.' [Citations.]
For example, this right does 'not have
the same force' when there is sufficient evidence to support a conviction. [Citation.]
In that case, retrial simply 'affords the defendant a second opportunity
to seek a favorable judgment' and does not violate the constitutional
prohibitions against double jeopardy. [Citation.]
By barring retrial only when a trial court clearly makes a finding of
legal insufficiency, we remain faithful to these governing principles. [Citation.]
Our decision also reduces the likelihood of future confusion over the
effect of a section 1385 dismissal by creating an incentive for parties to seek
clarification at the time of dismissal.
"Applying this rule to these facts, we conclude retrial is
permitted because the record does not clearly show an intent by the trial court
to dismiss for legal insufficiency of the evidence. Our analysis begins with the trial court's
minute order—which merely states that 'no reasonable jury would convict . . .
based on the evidence presented in court.' (See § 1385 ['The reasons for the dismissal
must be set forth in an order entered upon the minutes'].) This order does not indicate that the court
viewed the evidence in the light most favorable to the prosecution. Moreover, the use of the word 'would' rather
than 'could' suggests a reweighing of evidence rather than an application of
the substantial evidence standard. [Citation.]
Taken together, these ambiguities make it impossible for us to conclude
that the court intended to dismiss for lack of sufficient evidence as a matter
of law.
"The reporter's transcript bolsters our conclusion. [Citation.]
Like the minute order, nothing in the reporter's transcript indicates
the trial court viewed the evidence in the light most favorable to the
prosecution. Rather, the court's
inquiries about additional evidence and its remarks on the quality of the trial
presentations and the
of the jury suggest an assessment of the strength of the evidence. The court's comments on the improbability of
an unanimous verdict of guilt do not suggest otherwise. Indeed, the mere likelihood of disagreement
among rational [jurors] 'is not in itself equivalent to a failure of proof by
the State . . . .' [Citations.]
Accordingly, we decline to construe the section 1385 dismissal in this
case as an acquittal for double jeopardy purposes." (Hatch,
supra, 22 Cal.4th at pp. 270-275, fns
omitted.)
3.
Analysis
Despite the requirement under section 1385 that the reason for
dismissal be set forth in an order entered upon the minutes, the trial court in
the instant case gave no such reason.
Instead, the minute order merely provides the case is dismissed "without
prejudice."
In any event, Black's Law Dictionary defines the term "dismissal
without prejudice" to mean a "dismissal that does not bar the
plaintiff from refiling the lawsuit within the applicable limitations period." (Black's
Law Dict. (9th ed. 2009) p. 537, col. 1.)
The term "without prejudice" is further defined to mean "[w]ithout
loss of any rights; in a way that does not harm or cancel the legal rights or
privileges of a party." (
Relying on
meaning of the words "dismissal without prejudice" and "without
prejudice" that the trial court in the first case did not intend to foreclose the People from retrying Dominguez for the
murder of Moises. Indeed, if the court
had intended to preclude retrial, at a minimum it would have dismissed the case
"with prejudice." In any
event, there is no language in the minute order that the court viewed the
evidence in the light most favorable to the prosecution (see
to convict insufficient as a matter of law (see ibid.). In our view, the language of the minute order
unambiguously states the intent of the court not to preclude retrial.
The transcript from the dismissal hearing supports our conclusion. The court commented on the record that either
Andres's testimony or the DNA evidence "perhaps" would be sufficient
to prove beyond a reasonable doubt that Dominquez murdered Moises, but that one
"would think" this evidence, when considered together, would be
sufficient to convict.
name="_ftnref8" title="">[7] These comments do not suggest, much less
unambiguously, that the court found as a matter of law the evidence
insufficient to convict Dominguez for the murder of Moises. (See Hatch,
supra, 22 Cal.4th at p. 273.) Instead, these comments show the trial court
was merely assessing the evidence—much like a 13th juror. (See
People v. Salgado (2001) 88 Cal.App.4th 5, 10 [noting that double jeopardy
does not preclude retrial "when a dismissal is based on the trial court's
reweighing of the evidence as a 'thirteenth juror,'" as opposed to a
dismissal based on legal insufficiency of the evidence].)
We reach the same conclusion for the same reasons with respect to the comment
by the trial court that it agreed with the nine jurors who voted to acquit. Again, this comment merely shows the court was
assessing the evidence, not making a legal determination regarding the
sufficiency, or lack thereof, of the evidence.
(See People v. Salgado,
count 2 and nine to three to acquit on count 3.
(Hatch, supra, 22 Cal.4th at p. 266, fn. 2.) Nonetheless, our high court in
these counts was permissible.
In addition, we note that when the trial court stated it agreed with
the nine jurors to acquit, it added the caveat that the People "at this
point in time" had not satisfied the prosecution's burden of proof. We conclude the use of the words
several times by the trial court—is similar to the use of the word "'would'
rather than 'could'" that our high court in Hatch found "suggest[ed] a reweighing of evidence rather than
an application of the substantial evidence standard." (Hatch,
supra, 22 Cal.4th at p. 274.) Our conclusion is buttressed by the fact the
trial court coupled the words "at this point in time" with the words "without
prejudice."
We thus reject Dominquez's contention that double jeopardy principles
barred his retrial.
B. Evidentiary Issues
Dominguez does not challenge his murder conviction for lack of
substantial evidence. Nonetheless, he
does challenge several evidentiary rulings made by the trial court, which we
turn to next.
1.
to Glennys
a.
Additional Background
As noted ante,
Glennys testified Josue approached her sometime after Moises's killing while
she was walking in the park and told her he saw Speedy (i.e., Dominguez) first
beat then kill Moises. Glennys testified
Josue also told her that he and Moises had been at a barbecue earlier on the
day of the shooting and that at the barbecue, Dominguez and Moises had argued
about Edwin's death. Glennys testified
Josue was crying when he made these statements to her.
Dominguez moved pretrial to exclude these statements. The record shows their admissibility
initially arose before a jury was empanelled, when the trial court and counsel
were discussing when trial would start.
The defense noted if the court was inclined to exclude these statements,
it wanted the trial to start the next day.
Otherwise, the defense stated it needed two additional weeks to conduct
further investigation.
After argument by the People, the court framed the issue before it as
follows: "So given the way these
things play out, it would not be a stretch to expect that the People would call
Mr. [Josue] Gutierrez, Mr. Gutierrez would say that he doesn't know anything
about it and deny making these statements.
The People would then seek to call Ms. Berumen under Evidence Code
section 1235 and seek to use her testimony as substantive evidence."
Although recognizing the statements by Josue to Glennys after the
murder were technically admissible under the Evidence Code, the defense in
response argued they should be excluded under Evidence Code section 352 because
they were inherently unreliable and because Glennys had "some credibility
issues."
The trial court tentatively ruled to admit the statements, noting that
in cases with "gang overtones . . . there are always conflicted
loyalties and biases. Section 1235 of
the Evidence Code was created for the so-called turncoat or rollover witness." The court further noted that typically a
court does not consider the reliability of evidence in determining whether to
admit or exclude evidence because "[r]eliability is really for the trier
of fact to thrash out."
The court denied the defense's request to exclude the statements under
Evidence Code section 352. In so doing,
the court was "mindful" both of the seriousness of the charges and
the fact the defense would have to conduct investigation, including perhaps
calling witnesses "that say 'Mr. Gutierrez couldn't have seen those things
because he was with us in another location,' and the People may have some
impeaching testimony from those witnesses.
I'll decide where to draw that line when and if we get to it."
The defense again raised the issue of the admissibility of Josue's
statements to Glennys in an in limine motion that sought, among other relief, a
hearing pursuant to Evidence Code section 402.
As anticipated, after Josue testified he never spoke to Glennys about
Moises's murder and, in fact, he did not even know Glennys, the People called
Glennys as a witness. Outside the
presence of the jury, the court held an Evidence Code section 402 hearing with
respect to the limited issue of the "basis of knowledge of the hearsay
declarant, Mr. Gutierrez," which the court noted was a "prerequisite
to the admissibility of her testimony under [Evidence Code] section 1235."
After Glennys testified Josue told her that Josue "saw when
Speedy [i.e., Dominguez] killed Moises" and after Glennys was subjected to
cross-examination regarding an earlier inconsistent statement relevant to this
issue, the court ruled as follows to admit the statements under Evidence Code
section 1235:
"I think we need to do some balancing here. First of all, I find that although the
evidence is disputed, there is sufficient basis to find personal knowledge on
the part of the hearsay declarant, Mr. Gutierrez, to allow Ms. Berumen's
testimony. [¶] Her testimony is proffered under section 1235
of the Evidence Code. It is a prior
inconsistent statement under California
v. Green. It's usable for the truth
of the matter asserted therein. The
credibility of the hearsay declarant is always in issue, just as if the hearsay
declarant was a witness.
"Mr. Gutierrez has already testified. He's been asked about these statements. He's denied knowing Ms. Berumen or even
knowing that she was his friend's Moises' girlfriend at one point. I recall him saying, 'We don't talk about
girls or girlfriends,' this almost in the same breath that he was going to
crash the quinceanera to try to pick up girls.
"I do find that there is a sufficient basis to conclude that Mr.
Gutierrez had personal knowledge and that his statements to Ms. Berumen are
reliable to allow their admission . . . into evidence."
b. Governing Law and Analysis
Dominguez contends the trial court abused its discretion when it admitted
Josue's statements to Glennys pursuant to Evidence Code section 1235 because
the court allegedly failed to make a finding that Josue's statements were made
as represented.
Evidence Code section 1235 provides:
"Evidence of a statement made by a witness is not made inadmissible
by the hearsay rule if the statement is inconsistent with
his [or her] testimony at the hearing and is offered in compliance with Section
770."
"When evidence is offered under one of the hearsay exceptions,
the trial court must determine, as preliminary facts, both that the
out-of-court declarant made the statement as represented, and that the
statement meets certain standards of trustworthiness. [Citation.]
The first determination—whether the declaration was made as represented—is
governed by the substantial evidence rule. The trial court is to determine only whether
there is evidence sufficient to sustain a finding that the statement was made. [Citation.]
As with other facts, the direct testimony of a single witness is
sufficient to support a finding unless the testimony is physically impossible
or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.]
Except in these rare instances of demonstrable falsity, doubts about the
credibility of the in-court witness should be left for the jury's resolution;
such doubts do not afford a ground for refusing to admit evidence under the
hearsay exception for statements against penal interest. [Citations.]" (People
v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
Here, we conclude there is ample evidence in the record to support the
finding that Josue made the statements as represented by Glennys. Indeed, the record shows the trial court and the
defense were concerned about whether Josue had personal knowledge of the
killing of Moises or whether his knowledge was based on what others had told
him. The record also shows Glennys was
extensively examined and subject to cross-examination on this issue. At the conclusion of her testimony, the court
determined there was sufficient evidence to show Josue did have personal
knowledge.
In making this determination, the court necessarily found Josue made
the statements attributed to him by Glennys, as the court also ruled such
statements were sufficiently reliable to be admitted into evidence. (See People
v. Ledesma (2006) 39 Cal.4th 641, 710 [noting that a "'ruling on the
admissibility of evidence implies whatever finding of fact is prerequisite
thereto'"].) We thus conclude the
trial court properly exercised its discretion when it ruled to admit under
Evidence Code section 1235 the out-of-court statements of Josue, as testified
to by Glennys, which were inconsistent with Josue's trial testimony.
2. Admission of Evidence that Glennys Was Threatened Before She
Testified
a. Additional Background
During the Evidence Code section 402 hearing, Glennys also testified about
being threatened shortly before she was to testify. Glennys explained she at one time had been a
member of the Shelltown gang, who went by the moniker "Downers," and her
younger brother Humberto also had been a former Shelltown gang member, who went
by the moniker "Rider." Humberto
went to school with a girl named Angelina Campos. Angelina told Humberto at school she had a
message from Josue that Glennys had better "watch [her] back and not . . .
show up to court" and, if she did show up, that "everybody" from
the Shelltown gang would be after her for being a "snitch." Glennys was scared by this threat and considered
not testifying at the retrial. However,
she ultimately decided to testify for the sake of her former boyfriend Moises.
The record shows the trial court found Glennys to be a credible
witness and ruled as follows to admit the threat: "[N]umber one, I find the threats are
relevant. Number two, I think there has
to be a limiting instruction that says that there is no evidence that Mr.
Dominguez was the source of these threats and the jury is not to draw any
inference that he may have been behind or caused or the source of these
threats, and I'll be happy to consider the exact formulation of it with input
from both counsel.
"The balancing that I talked about is this: This is a gang case. It's a murder. Shelltown is a well-known, long-established
criminal street gang, and I think the court has to recognize that the threats
are something that this young girl who lives in that milieu will be susceptible
to; therefore, it's important to get her testimony on when we can.
". . . I'm going to allow her testimony in its entirety at this
time, and, if need be, I'll have her subject to recall if [defense counsel]
then develops information from further follow-up investigation where further
examination of her needs to occur."
The record shows that immediately after the People called Glennys as a
witness, the court gave the jury the following limiting instruction:
"Ladies and Gentlemen, one of the issues that we have been addressing
out of your presence and on the break has to do with testimony of this next
witness, Ms. Berumen. I'm going to give
you a limiting instruction. I told you
about limiting instructions early on.
"Sometimes there will be evidence that is receivable only for a
certain limited purpose, and you may hear some such evidence with respect to
Ms. Berumen. Permit me to put this in
context.
"As we all discussed during the voir dire process, and as you
know and will be instructed, you are the judges of the facts. This means that you alone must judge the
credibility or the believability of the witnesses. [¶] You
will be instructed that in deciding whether testimony is true and accurate, you
must use your common sense and experience.
You must judge the testimony of each witness by the same standards—we
talked about that, didn't we—setting aside any bias or prejudice that you might
have.
"You may believe all or part or none of any witness's
testimony. You are to consider the
testimony of each witness and decide how much of it you believe.
"Now, in evaluating a witness's testimony, you may consider anything
that reasonably tends to prove or disprove the truth or accuracy about that
testimony. We talked about that in voir
dire.
"How well could the witness see?
How well could the witness hear?
How well does the witness remember?
Does the witness answer the questions directly? Does the witness take the proceedings
seriously? Does the witness have a bias
or interest or motive that may cause a person to shade his or her testimony?
"Now, with respect to this next witness, Ms. Glennys Berumen, you
may hear testimony that this witness has recently been threatened with bodily
harm if she testifies at this trial. This
evidence is admitted only for the limited purpose of its possible effect on her
credibility or believability.
"A witness who has been the subject of threats, if you find that
to be the case, may behave differently on the witness stand than one who does
not or has not.
"It will be up to you to evaluate this possibility along with the
other evidence. It is of critical
importance, however, that you not draw any negative conclusions about Mr.
Dominguez because of this. There is no
evidence that he was the source of threats.
"Instead, if you hear evidence that this witness was
[threatened], you consider that in evaluating her believability. You must not use that evidence for any other
purpose and you must not use it to infer that Mr. Dominguez is either guilty of
those threats or guilty of the crime of which he's charged today."
The record shows the court then asked the jurors if they understood
this limiting instruction, the jurors "all" gave an affirmative
response and one of the jurors then asked whether they would learn who had threatened
Glennys. In reply, the court reiterated
the jury would not hear "any evidence that Mr. Dominguez told this person
to go out and communicate these threats, and that is the link that [the court]
want[s] to focus on here. [¶] You must not conclude that he must be guilty
of count 1 or count 2 in this case, and you must not conclude that he must be
responsible for the threats. You must
consider the threat information only in terms of how it might affect this
witness's believability."
b.
Governing Law and Analysis
"'Evidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that witness and
is therefore admissible. [Citations.] An explanation of the basis for the witness's
fear is likewise relevant to [his or] her credibility and is well within the
discretion of the trial court.
[Citations.]' [Citations.] '[T]here is no requirement to show threats
against the witness were made by the defendant personally or the witness's fear
of retaliation is "directly linked" to the defendant.' [Citations.]" (People
v. McKinnon (2011) 52 Cal.4th 610, 668; see also People v. Stewart (2004) 33 Cal.4th 425, 492, fn. 28 [noting that
retaliation is admissible to assess his or her
credibility, even when the threat is not directly linked
to the defendant]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 [noting
the jury is "entitled to know not just that the witness was afraid, but
also, within the limits of Evidence Code section 352, those facts which would
enable them to evaluate the witness's fear"]; see also generally Evid. Code,
§ 780 [providing in part: "Except as otherwise provided by statute,
the court or jury may consider in determining the credibility of a witness any
matter that has any tendency in reason to prove or disprove the truthfulness of
his testimony at the hearing"].)
Moreover,
hearsay because, as was the case here, it is admitted only to show the
Cal.4th 1067, 1142 ["evidence that [witness] feared retaliation for
testifying against defendant was [properly] offered for the nonhearsay purpose
of explaining inconsistencies in portions of her testimony"], disapproved
on other grounds as stated in People v. Rundle (2008) 43 Cal.4th 76,
151.)
We conclude the trial court here properly exercised its discretion
when it ruled to admit the threats to Glennys before she testified at trial,
inasmuch as (i) the threats were clearly relevant to her credibility and
believability as a witness, (ii) the threats were admitted for a nonhearsay
purpose, (iii) the jury was instructed that it alone should decide whether the
threats were even made, and (iv) the trial court gave a thorough and detailed
limiting instruction to the jury that if it found the threats were made, it was
not to draw any negative conclusions about Dominguez because there was no
evidence he was behind or the source of the threats.
Indeed, as to this latter point, the record shows the court went so
far as to ask the jurors if they understood the limiting instruction, noted for
the record they all showed they did and answered the question of a juror by
reiterating there was no link between the threats made against Glennys, on the
one hand, and Dominguez, on the other hand.
We therefore conclude the court properly exercised its discretion in
admitting evidence that Glennys was threatened before her trial testimony and
feared retaliation for giving that testimony.
(See People v. McKinnon,
3. Admission of Josue's Statements to Carol Martinez Regarding Moises's
Murder
a. Additional Background
Carol Martinez testified as a defense witness. She said around 5:30 p.m. on the day Moises
was killed, she, along with Josue, Moises and others were barbecuing in the
park. They left the park to take their belongings
home before going to a quinceanera. Moises
stayed behind. Before they left, Carol
told police she saw Moises in the park with "Speedy" (i.e.,
Dominguez) and two other Shelltown gang members.
According to Carol, they could not find Moises when they returned to
the park. Carol, along with Josue and
several others, then went to the quinceanera that was held near the park. While at the party, someone said they heard
gunshots. Josue was outside the party at
that time. A few days after the killing,
Carol testified she, Josue and two others went to the recreation center located
in or near the park to determine whether Josue appeared on the center's video
surveillance tape.
At sidebar, the defense contended statements made by Carol during a police
interview were inadmissible. Specifically,
Carol told police three days after the killing Josue had told her Moises was
drinking in the park on the night of the murder, Moises and Speedy started
arguing about Edwin's death, Speedy beat Moises causing Moises to bleed from
the face and then Speedy shot Moises. The
defense contended these statements constituted double hearsay and, in any event,
were based on what Josue had heard.
After lengthy argument, the court admitted the statements Josue made
to Carol that Carol relayed to police three days after the murder, ruling as
follows:
"I think we need to consider this question in the context of a
couple of relevant legal principles as well as in the factual context that this
issue of evidence arises.
"The legal principles that seem appropriate for consideration are
these: first, evidence that goes to the
credibility of witnesses is relevant; secondly, all relevant evidence is
admissible presumptively; third, that last rule is subject to the qualification
of Evidence Code section 352. [¶]
. . . [¶]
"Factually, I think we have to look at the fact that this issue
arises in the context of a gang-related shooting, murder, where it is—where the
evidence suggests perhaps even more than in the usual gang case a pretty
concerted effort on the part of a number of people to obfuscate the truth and
to deny what they saw.
"We've had evidence of threats to witnesses. We've had evidence of alibis. That's all fine. It's up to the jury to sort through that
evidence. I think we now have evidence
of attempts to create alibis.
"I have to say that certainly [defense counsel's] interpretation
of the memorial that Josue wrote is one that can be argued.[
name="_ftnref10" title="">[9]] It's not the only interpretation and frankly
I think that another interpretation that can be argued is that the whole first
part of that is a self-serving statement that in the context of this memorial,
made after the police had already leaned on him, Josue is trying to go on
record as saying, 'I was as far away from you as I possibly could have been and
wasn't there.'
"Now, that's just another interpretation that can be argued, and
I expect both counsel will argue those competing interpretations in the context
of all the evidence that we have in this case.
"The reason all of this is important, however, is this: we also
have one witness, Glennys Berumen, who admittedly was fond of Moises, whose
testimony directly impeaches Josue's about whether he was there or not that
night. It will be up to the jury to
decide the credibility of her statements and Josue's testimony.
"All of this is a backdrop to the issue that we have to consider
right now and that is do I allow this line of examination by [the People] that
would get into these statements that Carol Martinez variously says Jos[u]e told
her that he heard or told her that he knew?
To the extent that those might be rumors, I understand the defense's
concern. It seems to me, though, that
the law is that the court should not attempt to judge the credibility of
witnesses in ruling on the admissibility of evidence. Obviously, there's some limitations to that . . . .
"It seems to me that the testimony that the district attorney
seeks to proffer is relevant, is probative and, in fact, given the gang[-]related
circumstances in which this case arises, has probative value that outweighs any
prejudice or confusion or consumption of time.
"Defense counsel is free to argue that these were just rumors
that Josue was repeating. I'll even give
a limiting instruction to the effect that testimony that Josue told Carol
Martinez certain details about the shooting, if the jury finds that that
testimony was based on rumors that Josue had heard, then they must disregard it
and not consider it for any reason, and if they find it was based on Josue's
personal knowledge, then they may consider it and give it whatever weight it's
entitled, something to that effect."
The record shows Carol testified she did not remember if Josue told
her it was Speedy who beat and then shot Moises. Carol also said she did not make many of the
statements attributed to her in the police report, she did not know whether her
older brother was a member of the Shelltown gang who went by the moniker "Vandal,"
and she did not know Dominguez.
The record shows the trial court gave the jury the following limiting
instruction at the conclusion of Carol's testimony:
"Sometimes evidence is received for a limited purpose. This is a variation on that notion. This notion is that sometimes evidence is
received but you have to consider something before you're allowed to use it as
evidence. [¶] Let me explain. You have heard testimony from Ms. Martinez,
some of it by way of impeachment through statements reportedly made to the
police, that Josue Gutierrez told Ms. Martinez certain details about the
shooting of Moises.
"I don't wish to overly emphasize that testimony, but I want to
have us focused on what I'm talking about.
Those details include testimony regarding an argument about blaming
Moises for leaving . . . Little Crooks to die at that earlier shooting,
statements about Speedy beating Moises, statements about Moises bleeding from
his face and Speedy shooting him. I
would like you to take that . . . testimony, and put it in a box, so to speak,
subject to these rules.
"My instructions to you about that evidence is this: if you find in your deliberations, after
considering all the evidence, that Josue did not have personal knowledge of
those things, for example, that he was just repeating rumors that he had heard,
you must not consider that evidence for any purpose; leave it in the box. However, if you find that Josue did see those
things or otherwise had personal knowledge of them, then you may consider that
evidence and give it whatever weight you believe it is enfiled [
which you think it should be given.
"So I've probably made this more complex than it needs to
be. If you think it was Josue saying
rumors that he had heard after you consider all the other evidence in this
case, then don't consider it. If you
think that it was based on his personal knowledge, then you may consider it.
"I see everybody nodding.
Does everybody understand the instruction?"
The record shows an "unidentified juror" responded, "Yes."
In rebuttal, Homicide Detective Jana Beard testified she interviewed
Carol three days after Moises's murder, and Carol told her then Josue had said
Speedy beat Moises, causing Moises's face to bleed, and then Speedy shot Moises
because Moises had left "Lil' Crooks" (i.e., Edwin) to die in an
unrelated incident.
b.
Governing Law and Analysis
As noted ante,
evidence of a statement made by a witness is not inadmissible as hearsay if the
statement is inconsistent with the witness's testimony at the hearing. (Evid. Code, § 1235.) Here, as noted ante, Josue testified he
was not at the park at the time of the murder; he was not a member of the
Shelltown gang; he did not know who killed his friend Moises; and he never said
Speedy beat and then shot Moises. Carol
also testified the police report containing the statements she allegedly made
to police three days after the killing was inaccurate regarding what Josue had told
her about the murder.
We conclude the trial court properly exercised its discretion under Evidence
Code section 1235 when it ruled to admit (subject to a detailed and thorough limiting
instruction) Carol's statements to police regarding what Josue had told her
about the killing, inasmuch as these statements were inconsistent with the
testimony given by both witnesses. (See People
v. Cowan (2010) 50 Cal.4th 401, 462-463 [noting the abuse of direction
standard of review applies to a court's ruling on the admission of
evidence].)
4. Exclusion of Alleged Prior Consistent Statement by Josue
a. Additional Background
The defense called Josue as a witness.
During his testimony, the defense sought to play the audiotape of a
police interview of Josue four days after the killing that the defense claimed
was "substantially similar" to Josue's trial testimony that, at the
time of the shooting, he was not in the park but was instead at the
quinceanera. Because the defense
contended this recorded statement antedated Josue's statements to Glennys and
was consistent with his trial testimony, it was admissible as a prior
consistent statement to rehabilitate Josue as a witness.
In order to be admissible, the trial court found the prior consistent
statement had to predate any inconsistent statement and predate any motive to
fabricate. It ruled to exclude the audiotape
evidence based on the following chronology
| Description | Following a mistrial and the subsequent dismissal of his murder charge, the jury in defendant Florencio Jose Dominguez's second trial convicted him of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) and conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 2). The jury also made true findings Dominguez or a principal used a firearm causing the death of another person (§ 12022.53, subds. (d) & (e)(1)), and he committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Dominguez to 25 years to life on count 1 and imposed a consecutive 25-years-to-life enhancement for the firearm allegation. Sentences on the remaining count and allegations were stayed. Dominguez contends double jeopardy barred his retrial in the second case after the jury deadlocked and the court expressly dismissed without prejudice the first case. Alternatively, Dominquez contends his conviction must be reversed because the court (i) prejudicially erred in connection with a series of evidentiary rulings and (ii) improperly responded to a question posed by the jury during its deliberations. As we explain, we disagree with these contentions and affirm Dominquez's judgment of conviction. |
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