Filed 9/19/14 P. v. Dominguez CA2/2
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,                                                          B246206

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381624)
         v.

OSCAR DOMINGUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Curtis B. Rappe, Judge. Affirmed.


         Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       A jury convicted defendant Oscar Dominguez of being an accessory after the fact
to the commission of a felony, i.e., the murder of Mauricio Jimenez. (Pen. Code, § 32.)1
The jury found the offense was committed for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to promote, further and
assist in criminal conduct by gang members within the meaning of section 186.22,
subdivision (b)(1)(A). The trial court sentenced defendant to the midterm of two years
for the violation of section 32 and a consecutive midterm of three years for the gang
enhancement.
       Defendant appeals on the ground that his conviction must be reversed because
there was insufficient evidence to support his conviction for accessory after the fact to
murder. We affirm.
                                          FACTS
       Defendant, known as Little Stranger or Criminal, went cruising in the early
morning of August 15, 2009, with George Leiva, known as Gordo or Elf, and a man
called “Cricket.”2 Cricket was driving a light green Ford Explorer near South Park in the
City of Los Angeles and was armed with a gun. Defendant was a member of the 55
Bunch gang, and Leiva was a member of the Hang Out Boys gang. The two gangs are
associated, and they are rivals of the Playboys gang.
       Near South Park, Jimenez, known as Mynor, and his girlfriend, Monica Arriaga,
walked into an alley from 51st Street and headed toward 52nd Street. As Cricket was
driving, he saw Jimenez and said he looked like he might be a Playboys gang member. A
surveillance camera in the area captured an image of the Explorer pulling over to the curb
at 3:50 a.m. Leiva and Cricket got out of the Explorer and confronted Jimenez and
Arriaga, at which point Jimenez pushed Arriaga, telling her “to go.” As she ran away,
she heard gunfire. So did Dominguez, who was waiting in the Explorer. When the


1      All further references to statutes are to the Penal Code unless stated otherwise.
2      “Cricket” was the moniker for Gilberto Juarez.


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gunfire ceased, Arriaga returned to Jimenez, who was lying on the ground, face down.
She saw blood underneath him and heard moaning. When she spoke to Jimenez, he did
not answer.
       Leiva and Cricket returned to the Explorer and got in. Dominguez, who had
switched to the driver’s seat, drove away and was told by Leiva and Cricket, “I think we
got him.” The surveillance camera captured an image of the Explorer making a U-turn at
3:51 a.m. Arriaga called the police with her cell phone. At about 3:55 a.m., Officer
Joseph Meyers of the Los Angeles Police Department received a radio call directing him
to the scene of the shooting. He arrived and found an emotional Arriaga and the victim
lying face down on the sidewalk.
       Dominguez drove the Ford Explorer away from the crime scene and down 51st
Street to “the one-way going close to Fig[ueroa].” It was between “54, 53.” Dominguez
parked the Explorer, and he, Leiva and Cricket got out of the vehicle and went in
different directions.
       Police investigators found 14 nine-millimeter expended cartridges at the crime
scene. Four days later, Deputy Medical Examiner Jeffrey Gutstadt conducted an autopsy
on Jimenez. Gutstadt determined that Jimenez had 26 bullet holes caused by entry and
exit wounds but could not determine the number of times Jimenez had been shot.
Jimenez had suffered fatal bullet wounds to his right lung, liver, small intestine, and the
femoral artery and vein in his right leg. The total loss of blood from the damage caused
by these particular gunshot wounds led to Jimenez’s death. During the autopsy, Gutstadt
saw what he believed to be signs of medical intervention. Gutstadt was not asked to offer
an opinion on the time of death, or how long it took Jimenez to die from his wounds. The
defense did not cross-examine the medical examiner.
       On October 15, 2009, detectives interviewed Dominguez and asked if he knew
anything about the killing of Jimenez. Dominguez disclosed what he had seen and heard,
that he had been with Leiva and a man nicknamed Cricket, and that he had driven the
Explorer away from the scene.



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                                       DISCUSSION
I. Defendant’s Argument
         For the first time on appeal, defendant contends the prosecution failed to prove
Jimenez died before defendant finished rendering aid to the principals, Elf and Cricket.
Therefore, he asserts, the evidence is insufficient that the murder was complete before
defendant aided Elf and Cricket escape from the scene. Because section 32 requires
proof that defendant helped the principals after commission of the specified felony, the
contention is that defendant’s conviction must be reversed. 3
II. Relevant Authority
         Section 32 provides that “[e]very person who, after a felony has been committed,
harbors, conceals or aids a principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment, having knowledge that said
principal has committed such felony or has been charged with such felony or convicted
thereof, is an accessory to such felony.” “‘The elements of a charge of murder are an
unlawful killing with malice aforethought.’” (People v. Lopez (2013) 56 Cal.4th 1028,
1069.)
         “‘When a defendant challenges the sufficiency of the evidence, ‘“[t]he court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citation.]” [Citations.] “Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that evidence.
[Citation.]” [Citation.] We “‘“presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.”’ [Citation.]” [Citation.]’
[Citation.]” (People v. Lopez, supra, 56 Cal.4th at p. 1069.)



3      After the prosecution rested, the defense made no motion under section 1118.1
alleging that the evidence was insufficient to sustain conviction of the charges.


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       We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.
Green (1997) 51 Cal.App.4th 1433, 1437.) “Before a judgment of conviction can be set
aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly
appear that upon no hypothesis whatever is there sufficient evidence to support it.”
(People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
       “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978,
1053-1054.) “Simply put, if the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding. [Citations.]” (People v. Farnam (2002) 28 Cal.4th
107, 143.) We do not engage in independent fact finding, but instead affirm the jury’s
determinations if they are supported by any logical inferences grounded in the evidence.
(People v. Rodriguez (1999) 20 Cal.4th 1, 11-14.) “We simply consider whether ‘“‘any
rational trier of fact could have found the essential elements of [the] crime beyond a
reasonable doubt.’” [Citations.]’ [Citation.]” (People v. Stewart (2000) 77 Cal.App.4th
785, 790.)
III. Evidence Sufficient
       After examination of the entire record, we conclude there was sufficient evidence
such that the jury reasonably could have found the elements of accessory to murder were
present. That a contrary conclusion might also have been reasonable does not compel
reversal of the conviction. (People v. Kraft, supra, 23 Cal. 4th 978, 1059.)
       The jury was instructed that in order to find defendant guilty of a violation of
section 32 (being an accessory to a felony), the prosecutor had to prove that the
perpetrator committed a felony; that defendant knew that the perpetrator had committed
this felony; that after the felony was committed, the defendant aided the perpetrator with
the intent to allow the perpetrator to avoid or escape arrest, trial, conviction, or

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punishment. The instruction concluded, “To decide whether the perpetrator committed
the felony of Murder, please refer to the separate instructions that I will give you on that
crime.” (CALCRIM No. 440.) The jury received the standard instructions on murder,
CALCRIM Nos. 500, 520, and 521, with which defendant has no quarrel.
       The jury had the benefit of the following facts: Arriaga testified that she and
Jimenez were six to eight feet from the two men at the end of the alley between 51st
Street and 52nd Street near Towne Avenue. (Peo. Exh. 29.) After gang challenges were
exchanged, Jimenez told her to go. As Arriaga ran away, she heard a lot of shots and was
actually hit by a shell. Police found a total of 14 expended shell cartridges at the shooting
scene. Arriaga ran back to Jimenez and found him face down on the ground, not talking.
There was blood underneath him. He was moaning. The police came “a little bit over
10 minutes after” the shots were fired. The ambulance came after the police arrived.
Arriaga saw Jimenez’s body being taken away.
       The surveillance video shown at trial revealed that at 3:50 a.m. the SUV pulled up
to the curb on northbound Avalon Boulevard just before 52nd Street on the east side.
The SUV paused and then made a U-turn and continued south on Avalon out of the
camera’s view at 3:51 a.m..
       When Elf and Cricket got out of the car with a gun to accost Jimenez, defendant
moved to the driver’s seat of the car and waited. Elf and Cricket got back in the car, and
one of them said, “I think we got him.” According to the medical examiner, Jimenez had
26 holes in his body between entry and exit wounds. The bullets took many paths within
the body and affected vital internal organs, leading to death. The fatal wounds were to
the right lung, the diaphragm, the liver, small intestine, and the right femoral artery and
vein. The loss of blood from all of the damage to these organs led to death.
       In attempting to evade guilt as an accessory after the fact to murder, defendant
clings to the absence of expert testimony that the victim did not survive longer than the
time it took defendant to drive the shooters from the scene and abandon their vehicle.
We believe the evidence at trial was sufficient to show that Jimenez was mortally
wounded by the numerous gunshots to his body, suffered rapid blood loss, and died

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before Dominguez had driven the Explorer from 51st Street and Avalon Boulevard to
54th Street almost to Figueroa Street.
       It is true that People v. Esquivel (1994) 28 Cal.App.4th 1386 (Esquivel), cited by
defendant, stated that “murder ends with the death of the victim.” (Id. at 1397.) The
Esquivel court sought to contrast that crime with robbery, which “continues with the
asportation of the loot,” in a case tried on the sole theory of felony murder. (Id. at pp.
1392, 1397.) The prosecutor’s theory was that Esquivel was an aider and abettor of a
robbery committed by the person or persons who killed the victim, and thus guilty of
felony murder, even if the victim was killed before he joined in the intent to rob the
murder victim. (Id. at p. 1394.) Esquivel contended on appeal, and the reviewing court
agreed, that the trial court erred in failing to instruct the jury sua sponte regarding the
time that Esquivel formed the intent to participate in the robbery, i.e., whether it was
before or after the murder was committed, in order to determine his guilt based on a
theory of felony murder. (Id. at pp. 1392, 1399.)
       Esquivel’s brief reference to the time a murder is completed in the midst of its
lengthy analysis of the theories of aiding and abetting and felony murder does not aid in
the analysis of this case because the issue in Esquivel centered on the failure to instruct
the jury on the necessity of determining when the defendant formed the requisite intent
for felony murder. In Esquivel, the time of death was not important—it was deemed a
given that the murder had ceased before the robbery began or while it was ongoing.
(Esquivel, supra, 28 Cal.App.4th at p. 1394.) In that case, the prosecutor gave the jury
the wrong information, stating that even if Esquivel did not join the plan to rob until after
the murder, as long as the actual killer planned to rob before the murder, Esquivel was
guilty of felony murder. (Ibid. ) As the court stated, “‘[c]onflicting or inadequate
instructions on intent are closely related to instructions that completely remove the issue
of intent from the jury’s consideration, and, as such, they constitute federal constitutional
error. [Citation.]’” (Id. at p. 1399.) In the instant case, there was no incorrect legal
theory presented to the jury, and defendant’s complaint is merely one of a factual deficit
in the expert’s evidence that was supplied, we believe, by sufficient circumstantial

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evidence capable of being evaluated by a jury. In Esquivel as well, the sequence of
events was muddled, with several different versions of events in the victim’s house on the
fatal day being told by Esquivel. In the instant case, the sequence of events could not be
clearer: Leiva shot Jimenez full of holes and caused five fatal wounds, after which
defendant helped him escape.
       Defendant also cites People v. Celis (2006) 141 Cal.App.4th 466 (Celis) for the
proposition that the People were required to prove that the acts defendant committed to
aid the principals were committed after Jimenez died. In Celis, the defendant complained
that the trial court failed to instruct the jury sua sponte that “‘a murder is complete when
the fatal blow is struck, even if the victim lingers for a substantial period of time.’”
(Celis, supra, 141 Cal.App.4th at p. 471.) The defendant wanted such an instruction
because she theorized she had been erroneously convicted of murdering the victim on an
aiding and abetting theory by cleaning the floor at the crime scene—an act she performed
after her son had allegedly delivered the fatal blow to the victim and taken the victim
away, but before the victim died.4 (Ibid.) The Celis court found no error resulted from
the absence of the suggested instruction and stated that “the victim’s death is a sine qua
non of murder,” and the crime could not have been ‘completed’ until [the victim] had
died.” (Ibid.) Defendant goes on to cite several out-of-state cases cited by the Celis
court. (Id. at pp. 471-472.)
       We believe Celis also fails to aid the analysis in this case. As in Esquivel, the
issue in Celis was the trial court’s alleged failure to give a sua sponte instruction that
would have aided the defendant’s case. In Celis, the proposed instruction was incorrect
in that a murder is clearly not complete until the victim dies, and Celis cited a great deal
of case law in order to demonstrate that simple proposition. Celis, however, was a case
where the facts, as in Esquivel, were not straightforward due to the several different
versions of events given by the principals in the murder. (Celis, supra, 141 Cal.App.4th


4     The jury found not true the allegation that the defendant had personally used a
deadly or dangerous weapon. (Celis, supra, 141 Cal.App.4th at p. 470.)


                                               8
at pp. 469-470.) At different times, both the defendant and her son admitted to hitting the
victim in the defendant’s kitchen, and, depending on which version was believed, one or
both of them put the victim’s body in the trunk of a car. (Id. at pp. 469-470.) A concrete
block found near the body at a dump site was consistent with an injury to the victim’s
face, which the medical examiner deemed antemortem. Thus, there was conflicting
evidence as to whether the defendant or her son, who later pleaded guilty to the murder,
actually killed the victim, leaving what the defendant perceived as an opening to avoid
responsibility as an aider and abettor.
       Here, there was only one version of the facts, and the facts were simple. The
perpetrator and manner of killing were not in doubt. There was sufficient circumstantial
evidence for the jury to find that the victim died a few minutes after being shot and
before the Explorer was dumped several blocks away, and it is evidence from which a
jury could arrive at this conclusion without the benefit of expert testimony. The fact that
an almost immediate death would ensue from receiving a volley of gunshots in the upper
body is not a subject “sufficiently beyond common experience” that the opinion of an
expert was necessary. (Evid. Code, § 801, subd. (a).) Viewing the evidence in the instant
case in the light most favorable to the prosecution, a reasonable trier of fact could have
determined that Jimenez was dead before defendant stopped aiding the perpetrators. We
therefore reject defendant’s contention that there is insufficient evidence he was an
accessory after the fact of murder.
                                      DISPOSITION
       The judgment is affirmed.


                                                         BOREN, P.J.
I concur.
              FERNS, J.*
_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                             9
ASHMANN-GERST, J.—Dissenting.
       I respectfully dissent.
       Only if Mauricio Jimenez (Jimenez) died before Oscar Dominguez (Dominguez)
stopped assisting the escape of George Leiva (Leiva) and a man nicknamed Cricket was
Dominguez guilty of being an accessory after the fact to the murder of Jimenez. This
was not proven.
       It is well settled that “[e]xpert testimony is required where the facts from which
the conclusions are to be drawn are peculiarly within [an] expert’s knowledge and are not
a matter of common knowledge.” (People v. Chapman (1962) 207 Cal.App.2d 557, 578.)
In my view, the window of time it took for Jimenez to die from his gunshot wounds is
peculiarly within the knowledge of medical experts. Here, there was no expert testimony
regarding how long it took Jimenez to die, or how long it would take a man of his height,
weight and age to die from the wounds that he suffered. Also, there was no testimony
establishing how much time transpired between the shooting and the moment Dominguez
parked the vehicle and stopped assisting the escape of Leiva and Cricket. Whether
Jimenez died within that window of time was left entirely to the imagination and
guesswork of the jurors.
       The majority sees the evidence differently. It suggests that the evidence was
susceptible to two reasonable interpretations—that Jimenez died before Dominguez
stopped aiding the escape, or that Jimenez died after—and that under the substantial
evidence test, we must therefore affirm. (People v. Farnam (2002) 28 Cal.4th 107, 143.)
This is so, the majority avers, because the circumstantial evidence supports the inference
that Jimenez “died a few minutes after being shot and before the Explorer was dumped
several blocks away.” (Maj. Opn., at p. 9.) But there is no evidence that it took
Dominguez “a few minutes” to drive “several blocks” in the dead of night rather than a
minute or less. (Maj. Opn., at p. 9.) Also, I disagree with the majority’s conclusion that
the time it took Jimenez to die “is not a subject ‘sufficiently beyond common experience’
that the opinion of an expert was necessary.” (Maj. Opn., at p. 9.)
       Based on the evidence, the jury could not find beyond a reasonable doubt that
Dominguez was an accessory after the fact to Jimenez’s murder. I therefore conclude
that Dominguez’s conviction violated his right to due process. (People v. Davis (2013)
57 Cal.4th 353, 360 [inferences cannot be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture or guesswork]; People v. Aranda (2012) 55
Cal.4th 342, 356 [“Under the due process clauses of the Fifth and Fourteenth
Amendments, the prosecution must prove a defendant’s guilt of a criminal offense
beyond a reasonable doubt”].)
       I would reverse.




                                          _________________________________, J.
                                                  ASHMANN-GERST




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