People v. Dominguez CA3 ( 2024 )

Filed 2/13/24 P. v. Dominguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C096435
Plaintiff and Respondent, (Super. Ct. No. CR2021-79)
v.
NATHAN ALEXANDER DOMINGUEZ,
Defendant and Appellant.
Defendant Nathan Alexander Dominguez appeals following his convictions for
kidnapping, kidnapping for robbery, burglary, dissuading a witness, and several other
offenses. He raises eight arguments: (1) insufficient evidence shows he was involved in
most of these crimes, (2) insufficient evidence supports the jury’s kidnapping verdicts,
(3) insufficient evidence supports the jury’s verdict for dissuading a witness, (4) the trial
court should have instructed the jury on false imprisonment as a necessarily included
offense to kidnapping, (5) the trial court improperly instructed the jury about his flight
from police officers, (6) he was improperly convicted of both kidnapping for robbery and
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kidnapping based on the same conduct, (7) the trial court should have stayed execution of
sentence on several counts, and (8) the trial court failed to fulfill its statutory duty to
determine presentence custody credits.
We agree with Dominguez in part. He should not have been convicted of both
kidnapping for robbery and kidnapping, the trial court should have stayed execution of
sentence for certain counts (though not as many as he argues), and the trial court should
have determined his custody credits. We will reverse the conviction for kidnapping,
order certain counts of conviction be stayed, and remand for resentencing and calculation
of credits.
BACKGROUND
I
Robberies of G.C. and M.N.
On October 26, 2020, G.C. visited a friend, M.N., at M.N.’s apartment. After a
few hours, G.C. left the apartment and walked to the parking lot of the apartment
complex. There, a car pulled up to G.C., and two men—later identified as Dominguez
and Russell Hohman—jumped out. Hohman grabbed G.C.’s arm and showed him a gun.
Dominguez also grabbed G.C. and carried a gun in his waistband.
Hohman and Dominguez both told G.C. that he needed to go to M.N.’s apartment
and knock on the door. Hohman then pulled G.C. from the parking lot up three flights of
stairs to M.N.’s apartment—a distance of “maybe less than 50 feet,” according to G.C.—
and G.C. knocked. After M.N. opened the door, Hohman hit M.N.’s head with the butt of
his gun, knocked M.N. to the floor, and punched him several times. Dominguez pushed
G.C. into the apartment and onto a couch. M.N., bleeding heavily from his head, joined
G.C. on the couch shortly after.
Dominguez pointed his gun at G.C. and M.N. and forced both to hand over their
wallets and phones. Around this time, M.N. managed to call 911 on his Apple Watch.
But Dominguez noticed and said, “What the fuck are you doing,” leading M.N. to take
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off the watch, end the call, and hand the watch over. While Dominguez held G.C. and
M.N. at gunpoint, Hohman went through the house, grabbed a laundry basket, and filled
it with various items he found, including a laptop, Xbox, Nintendo Switch, belts, jewelry,
and cash. Hohman also grabbed M.N.’s car keys.
Before leaving the apartment, Hohman told M.N. that he belonged to gangs and
threatened to kill him if he sought help. Hohman left first, carrying the laundry basket
filled with various items. Dominguez followed but then returned several times and
checked on G.C. and M.N. A few minutes after Dominguez last checked on them, G.C.
and M.N. looked outside and saw neither Hohman nor Dominguez. They also noticed
that M.N.’s car was gone. The whole incident lasted about 10 to 15 minutes.
II
Investigation of the Robberies and Dominguez’s Flight
G.C. and M.N. afterward stopped a nearby officer and reported the crimes. Both,
however, hesitated to identify the two perpetrators and told officers they knew neither.
M.N. recognized Hohman—and had even been robbed by Hohman before—but feared
identifying Hohman because Hohman threatened to kill him if he talked. G.C.
recognized both Hohman and Dominguez from high school but had similar concerns. He
knew Hohman and Dominguez had a reputation for being involved in gangs and feared
he could be killed if he identified them. Both M.N. and G.C., however, eventually
identified Hohman as one of their assailants after officers found him driving M.N.’s car
and brought him to M.N. and G.C. But neither M.N. nor G.C. named the second
assailant. They instead described his features: He was a dark-skinned Hispanic, had long
hair, and, according to G.C., was about five foot 11 inches tall and 170 pounds.
M.N. asked around to learn the identity of the second assailant. A friend
responded that it was Dominguez—who is about six foot two inches tall, 230 pounds,
and, depending on the person asked, described at trial as either a dark-skinned Hispanic
(G.C.) or not dark-skinned (M.N. and two officers). M.N. shared Dominguez’s name
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with police two days after the robberies, and police then showed him a six-person
photographic lineup. The lineup showed only two people with long hair—Dominguez
and a person M.N. recognized from high school. M.N. selected Dominguez and
afterward told G.C. that he was able to identify him based on the hair. The officer who
prepared the photo lineup later acknowledged “it’s not a great lineup.”
In November 2020, after M.N. identified Dominguez, Dominguez drove up to
G.C. and asked him to get in the car. Once G.C. got in, Dominguez showed him a gun
but put it aside and said he would not do anything. Dominguez then told G.C. that the
robbery “was [Hohman’s] idea,” that “he was just there,” and that “he didn’t want to get
in trouble.” He also asked if G.C. could get his parents “to drop their statement” to police
(though G.C. was not aware of them making any statement), asked if he could talk to
M.N. about retracting his statements and dropping charges, and asked if G.C. could
retract any statement he had made. G.C. said there was nothing he could do and left the
car.
That same month, police obtained a Ramey warrant1 for Dominguez’s arrest. On
January 13, 2021, several officers in marked police cars pulled behind Dominguez’s car
and activated their lights. Dominguez slowed and pulled into a nearby parking lot. After
a woman left his car and walked away, Dominguez made a U-turn, collided with a police
car when the officer tried to block his path, and left the parking lot. He then led officers
on a high-speed chase, though after about seven miles, officers called off the pursuit for
safety reasons after Dominguez drove through several red lights, nearly hit a person in a
crosswalk, and drove on the wrong side of a road. Officers later found Dominguez’s
1 A Ramey warrant is a warrant authorizing a residential arrest of a suspect before the
filing of criminal charges. (Goodwin v. Superior Court (2001) 90 Cal.App.4th 215, 218,
citing People v. Ramey (1976) 16 Cal.3d 263.)
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abandoned car and, shortly after, found Dominguez in the back yard of a house stomping
on his cell phone.
While searching Dominguez’s car, officers found a bag of bullets. They also
found an envelope, which was stamped “inmate mail,” that listed Hohman in the return
address and was addressed to Hohman’s girlfriend. The envelope held five letters dated
between November 3 and December 13 of 2020. Three were addressed to “Rock Face,”
one to “Stone Face,” and one to “Stone Face, AKA Boulder Head”—with Stone Face
being a name associated with one of Dominguez’s social media accounts. In the letters,
Hohman congratulated the recipient on the birth of a child (Dominguez’s daughter was
born in November 2020) and said he had “love for his homie,” would not snitch, and
would accept a plea deal. Officers also found that a license plate reader camera located
near M.N.’s apartment captured the plate for Dominguez’s car at 4:50 p.m. on October
26, 2020—which was about 20 minutes after M.N. called 911 on his watch.
On Dominguez’s phone, officers found photographs showing the police report for
the October 2020 crimes—a report that was not publicly available. Officers also found
on the phone photographs showing a Louis Vuitton belt, Beats headphones, AirPods, a
gold chain, and an Apple Watch with a gold strap. M.N. later testified that these items
looked like items stolen from him.
Following Dominguez’s arrest, G.C. identified Dominguez in a six-person
photographic lineup in March 2021. Unlike the lineup shown to M.N., the lineup shown
to G.C. included six people with long hair.
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III
Procedural History
Dominguez was charged in an information with 13 counts: (1) kidnapping to
commit robbery (Pen. Code,2 § 209, subd. (b)(1)), (2) kidnapping (§ 207, subd. (a)), (3)
first degree robbery of G.C. (§§ 211, 212.5, subd. (a)), (4) first degree robbery of M.N.
(ibid.), (5) first degree burglary (§ 459), (6) assault of M.N. with a semiautomatic firearm
in the doorway (§ 245, subd. (b)), (7) assault of M.N. with a semiautomatic firearm on
the couch (ibid.), (8) assault of G.C. with a semiautomatic firearm on the couch (ibid.),
(9) dissuading a witness in October 2020 while using force or the threat of force (§ 136.1,
subd. (c)(1)), (10) dissuading a witness in November 2020 (§ 136.1, subd. (b)(1)), (11)
evading a peace officer with reckless driving (Veh. Code, § 2800.2), (12) possession of
ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd.
(a)), and (13) misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)).
The information also alleged several enhancements. For the kidnapping and
robbery charges, the information alleged that Dominguez personally used a firearm (§
12022.53, subd. (b)) and was armed with a firearm during the commission of the offenses
(§ 12022, subd. (a)(1)). For the burglary, assault, and October 2020 dissuading a witness
charges, the information alleged that Dominguez personally used a firearm during the
commission of the offenses. (§ 12022.5, subd. (a).) For the burglary and October 2020
dissuading a witness charges, the information further alleged that Dominguez was armed
with a firearm during the commission of the offenses. (§ 12022, subd. (a)(1).) And for
the burglary charge, the information also alleged that another person other than an
accomplice was present in the residence at the time of the burglary. (§ 667.5, subd.
(c)(21).)
2 Undesignated statutory references are to the Penal Code.
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The jury could not reach a verdict on the charge of dissuading a witness in
November 2020, leading the court to declare a mistrial for that count. The jury otherwise
found Dominguez guilty as charged. The court afterward sentenced Dominguez to an
indeterminate prison term of seven years to life, plus an aggregate determinate prison
term of 14 years four months. Dominguez filed a notice of appeal with this court in June
2022. His opening brief was filed in April 2023, and this case was fully briefed on
October 30, 2023.
DISCUSSION
I
Sufficiency of the Evidence
Dominguez raises several challenges to the sufficiency of the evidence.
A. Identification of Dominguez
He first argues that insufficient evidence shows he joined Hohman in committing
the crimes on October 26, 2020. We disagree.
To determine if sufficient evidence supports a jury’s finding, we must “ ‘ “review
the entire record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 632.) Our job is not to
reweigh witness credibility, for “[w]e do not question the credibility of a witness’s
testimony, so long as it is ‘not inherently improbable.’ ” (People v. Navarro (2021) 12
Cal.5th 285, 302; see Lee, at p. 632.) Nor is it our job to reweigh the evidence. We
instead must resolve all conflicts in the evidence in favor of the judgment’s findings, so
long as these findings are based on substantial evidence and not speculation, supposition,
or conjecture. (Lee, at p. 632; People v. Davis (2013) 57 Cal.4th 353, 360.)
Applying this deferential standard here, we find sufficient evidence supports the
jury’s finding that Dominguez participated in the crimes. Both M.N. and G.C. identified
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Dominguez as one of the two perpetrators with one “hundred percent” certainty. And
although M.N.’s identification of Dominguez might carry less weight, as we will cover
below, G.C.’s identification was reasonable, credible, and of solid value. G.C. picked
Dominguez out of a six-person photographic lineup three months after the crimes and
later identified him again at trial. He also had good reason to recognize Dominguez—the
two went to high school together. And while about four years had passed since high
school, he still recognized Dominguez at the time of the crimes, though it “took [him] a
while” to put a name to the face.
Other evidence corroborated G.C.’s identification. Most significantly, about a
month after the crimes, Dominguez acknowledged his involvement in the robbery. He
pulled up beside G.C. and asked him to get into the car. He then told G.C. that the
robbery “was [Hohman’s] idea and he was just there,” asked if G.C. could get his parents
to drop their statement to police, and asked if he could talk to M.N. about retracting his
statements and dropping the charges. He also said “he didn’t want to get in trouble” and
asked G.C. if he could retract any statement he had made to police. These statements—
including Dominguez’s acknowledgment that he was present during the robberies—are
powerful evidence of identity.
Evidence found on Dominguez’s phone also connected him to Hohman and to the
October 2020 crimes. His phone contained photographs showing at least 12 pages of the
police report for these crimes—a report that was not publicly available but that Hohman,
who had already been charged, would have received during discovery. A testifying
officer believed, and a jury could reasonably infer, that Dominguez acquired this report
from Hohman. Dominguez’s phone also contained photographs showing several items
that, according to M.N., were consistent with the items that had been taken from him.
These included a Louis Vuitton belt, Beats headphones, AirPods, a gold chain, and an
Apple Watch with a gold strap.
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Other evidence placed Dominguez in the area around the time of the crimes. M.N.
testified that the burglary occurred around 4:00 p.m. and lasted about 10 to 15 minutes.
Evidence showing the time of M.N.’s abandoned 911 call from his watch was consistent
with this estimate; it showed the call occurred at 4:32 p.m. Other evidence showed the
car Dominguez drove was in the area around this time. A license plate reader camera
located near M.N.’s apartment captured the car’s license plate at 4:50 p.m.
Considered together, this evidence showed (among other things) that G.C.
identified Dominguez as one of the two perpetrators of the October 2020 crimes,
Dominguez later acknowledged his involvement in these crimes, Dominguez had
photographs of some of the items alleged to have been stolen, Dominguez had
photographs of the police report covering the crimes, and the car Dominguez drove was
in the area around the time of the crimes. This evidence, considered together with the
whole of the evidence, sufficiently supports the jury’s finding that Dominguez joined
Hohman in committing the offenses on October 26, 2020. (See People v. Reed (2018) 4
Cal.5th 989, 1006 [“Even identification of defendant by a single eyewitness may be
sufficient to establish, beyond a reasonable doubt, defendant’s identity as perpetrator of
the crime charged”]; People v. Grimes (2016) 1 Cal.5th 698, 731 [“ ‘[p]ossession of
recently stolen property is so incriminating that to warrant conviction there need only be,
in addition to possession, slight corroboration in the form of statements or conduct of the
defendant tending to show his guilt’ ”].)
Although Dominguez highlights certain details that cut against some of the
prosecution’s evidence, he has not shown that the evidence as a whole was insufficient.
He first focuses on M.N.’s identification. He argues the identification was not credible
because M.N. initially described Hohman’s companion as dark-skinned and with long
hair, but according to M.N.’s testimony at trial, Dominguez is not dark-skinned. He adds
that M.N.’s initial identification of him in a six-person photographic lineup was flawed
because only two of the persons shown had long hair and M.N. knew one of those two
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from high school. And he suggests that the friend who told M.N. that Dominguez was
involved might be untrustworthy, noting that an investigating officer initially suspected
that this friend might have been involved in the robberies—though the officer ultimately
found there “wasn’t any evidence that he was involved.” But even accepting that M.N.’s
identification of Dominguez was flawed, we would still find the evidence sufficient even
if we ignored M.N.’s identification altogether.
Dominguez next focuses on G.C.’s identification. He argues his identification too
was not credible because G.C. initially told officers he did not recognize the second
suspect and offered a description that did not match Dominguez. He described the
suspect as around five foot 11 inches tall, about 170 pounds, and dark-skinned, while
Dominguez is six foot two inches tall, 230 pounds, and, according to M.N. and two
others, not dark-skinned. He adds that G.C.’s identification of him in a photographic
lineup was flawed because M.N. had told G.C. that Dominguez was involved before the
lineup, G.C. had then viewed pictures of Dominguez online, and G.C. described
Dominguez as having the longest hair in the lineup. Dominguez also claims that G.C. did
not recognize him at the time of the robberies, though, in support, he cites only testimony
showing that M.N. did not recognize Dominguez.
While these types of details are relevant to G.C.’s identification, so too are other
details that Dominguez omits. Although G.C. initially told officers he did not recognize
the second suspect, he later explained why—he thought Dominguez was a gang member
and feared being killed. Although M.N. told G.C. that Dominguez was involved before
G.C. identified him in a lineup, G.C. testified that he already suspected Dominguez
beforehand and recognized him from high school. Although M.N. and two officers
testified that Dominguez was not dark-skinned, G.C. testified otherwise; in his view,
Dominguez was a dark-skinned Hispanic. And although G.C. said that Dominguez had
the longest hair of those shown in the lineup, even defense counsel at trial accepted that
everyone in the lineup (unlike those in M.N.’s lineup) had long hair. The jury could take
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all these details into account and find G.C.’s testimony credible. And while Dominguez
might believe that the jury should have given this testimony less weight, it is, again, not
our place to reconsider the credibility of G.C.’s testimony and its appropriate weight.
(See People v. Reed, supra, 4 Cal.5th at pp. 1006-1007 [it is the jury’s role to assess the
credibility of a witness’s testimony and its weight].)
Lastly, Dominguez contends the evidence from the license plate reader camera is
inconsistent with his involvement in the crime. He notes that the camera captured the
license plate for his car four minutes before capturing the plate for the car that Hohman
stole from M.N. He then contends these times are inconsistent with M.N.’s and G.C.’s
testimony because both said that the second suspect left the apartment after Hohman and
came back several times before leaving. Dominguez assumes, however, that Hohman
drove away from the complex the moment he left the apartment and so should have
arrived at the license plate reader camera before Dominguez. But while Hohman perhaps
could have driven away immediately, we cannot say that he did. Dominguez may
speculate along those lines, but we will not do the same. Dominguez adds that the
presence of his car in the area was not “itself proof of guilt,” since the camera often
captured his car’s plates in the area. But the camera evidence is not the only evidence of
Dominguez’s involvement; and for the reasons covered, we are satisfied that the evidence
is sufficient to show his participation in the crimes.
B. Kidnapping and Kidnapping for Robbery
Dominguez next asserts that insufficient evidence supports the jury’s verdicts for
kidnapping and kidnapping for robbery. Focusing on the asportation element for these
crimes, he argues that the evidence is insufficient because it shows the movement of G.C.
was merely incidental to the commission of the robberies. We disagree.
Both kidnapping for robbery (or aggravated kidnapping) and simple kidnapping
have an asportation element. They each require “that the victim must have been moved
‘for a substantial distance, that is, a distance more than slight or trivial.’ ” (People v.
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Martinez (1999) 20 Cal.4th 225, 237, overruled on other grounds by People v. Fontenot
(2019) 8 Cal.5th 57, 59; see People v. Dominguez (2006) 39 Cal.4th 1141, 1153
(Dominguez).) Aggravated kidnapping further “requires movement of the victim that is
not merely incidental to the commission of the underlying crime and that increases the
risk of harm to the victim over and above that necessarily present in the underlying crime
itself.” (Martinez, at p. 232.) The same is not required for simple kidnapping. But for a
simple kidnapping case involving an associated crime, “the jury should be instructed to
consider whether the distance a victim was moved was incidental to the commission of
that crime in determining the movement’s substantiality.” (Id. at p. 237.)
In evaluating whether a victim’s movement was incidental to an associated crime,
we consider “the ‘scope and nature’ of the movement.” (People v. Rayford (1994) 9
Cal.4th 1, 12.) “This includes the actual distance a victim is moved,” though “there is no
minimum number of feet a defendant must move a victim” for the movement to be found
more than incidental. (Ibid.) We also consider “the context of the environment in which
the movement occurred.” (Ibid.) For instance, if “ ‘in the course of a robbery a
defendant does no more than move his victim around inside the premises in which he
finds him . . .[,] his conduct generally’ ” will be considered incidental to the robbery.
(Ibid.) But when the defendant “change[s] the victim’s environment” from a relatively
public area to a more secluded area, the defendant’s conduct is less likely to be
considered merely incidental. (Dominguez, supra, 39 Cal.4th at pp. 1153-1154.) And
even when a victim is moved “solely to facilitate the commission of the robbery,” the
movement is still not incidental if it is “for a substantial distance rather than brief.” (In re
Earley (1975) 14 Cal.3d 122, 130.)
Applying these principles and relevant case law here, we find the evidence
sufficiently supports the jury’s finding that the movement of G.C. was not merely
incidental to the commission of the robberies. Hohman and Dominguez, both armed with
guns, grabbed G.C. in the parking lot of M.N.’s apartment complex and told him to go to
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M.N.’s apartment and knock on the door. Hohman then pulled G.C., with Dominguez
following behind, from the parking lot to the front door of M.N.’s apartment—a distance
of about 50 feet. After M.N. opened the door, Dominguez pushed G.C. into the
apartment and onto a couch in the living room.3
While the total distance G.C. was moved—about 50 feet—might be insufficient in
some cases, it was enough under the circumstances here to find the movement more than
incidental to the robbery. The movement “changed the victim’s environment”—moving
G.C. from a publicly viewable space during the daytime (the parking lot) to a private area
(M.N.’s apartment)—and thereby substantially decreased the likelihood of detection,
escape, or rescue and enhanced Hohman’s and Dominguez’s opportunity to commit
additional crimes. (Dominguez, supra, 39 Cal.4th at pp. 1153-1154.) These facts are
sufficient to conclude that the movement was substantial (i.e., more than slight or trivial)
and not merely incidental to the robbery. (See ibid.; People v. Waqa (2023) 92
Cal.App.5th 565, 583 [movement of eight to 10 feet found substantial]; People v.
Shadden (2001) 93 Cal.App.4th 164, 167, 169 [movement of nine feet found sufficient].)
Case law is consistent with our conclusion. Take Dominguez, supra, 39 Cal.4th
1141. That case involved an aggravated kidnapping, though of a different type—
kidnapping for rape rather than robbery. (Id. at p. 1151.) The defendant there moved the
victim about 25 feet from the shoulder of a road down an embankment and partially into
an orchard. (Ibid.) Although the court acknowledged “the distance is not great,” it still
found the movement “cannot be said to have been merely incidental to the rape.” (Id. at
pp. 1153-1154.) It explained that the movement “changed the victim’s environment from
3 In his reply brief, Dominguez disputes most of these facts. He argues G.C.’s testimony
shows that he neither grabbed G.C. nor told him to knock on M.N.’s door, and that he
“simply walked up the stairs behind” G.C. and Hohman. Dominguez misrepresents the
record. G.C. testified, for instance, that both Hohman and Dominguez grabbed him and
told him to knock on the door for M.N.
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a relatively open area alongside the road to a place significantly more secluded,
substantially decreasing the possibility of detection, escape or rescue.” (Ibid.) The
court’s decision in People v. James (2007) 148 Cal.App.4th 446 is similar. The
defendants there forced a business’s employee—who had been hosing down a parking
lot—to knock on the business’s door to facilitate entry. (Id. at p. 456.) After gaining
entry, the defendants threw the employee on the floor, stole money from the business and
several employees, and then told the employees to wait in a bathroom while they escaped.
(Id. at pp. 450-451.) Even though the record did not reveal the distance from the parking
lot to the door, the court still found this evidence sufficient to conclude that the
movement was not merely incidental to the robbery. (Id. at pp. 458-459.)
Although Dominguez attempts to distinguish the latter case, People v. James,
supra, 148 Cal.App.4th 446, we find his efforts unpersuasive. He asserts James is
different for several reasons: The victim there was confined to an “isolated room”
(alluding, we think, to the bathroom), not an apartment. The victim was not a named
robbery victim, unlike G.C. The victim was thrown on the floor, not pushed on a couch.
And the robbery in James lasted an hour, not 10 to 15 minutes like the robberies here.
But two of these alleged distinctions are questionable at best. Dominguez claims the
victim in James was not a named robbery victim, but that is wrong; he was a named
victim of robbery, though the defendant was not convicted on that robbery count. (Id. at
p. 450, fn. 2.) Dominguez also claims the robbery in James lasted an hour. Although one
witness testified along those lines, another said it lasted only eight to 14 minutes. (Id. at
p. 451.) Still, we agree the facts in James are not identical to those here. And we expect
that is true of all kidnapping cases—not one will be identical to another. But even
accounting for the limited differences Dominguez has identified, we still find the case
helpful to our analysis and supportive of our conclusion.
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C. Dissuading a Witness
Dominguez also contends insufficient evidence supports his conviction for
dissuading a witness. We disagree.
Section 136.1 prohibits, among other things, a person from preventing or
attempting to prevent a crime victim from reporting the crime to police or testifying at
trial. (§ 136.1, subds. (a), (b).) It also, as relevant here, enhances the penalty for this
conduct when the person acts knowingly and maliciously and uses force or threatens,
either expressly or impliedly, to use force or violence against the victim. (Id., subd.
(c)(1).)
In this case, the prosecution charged Dominguez with an enhanced violation of
this statute. It later described three separate theories for the charge in closing
arguments—(1) Dominguez and Hohman threatened M.N. and G.C. that they would kill
them if they talked to police, (2) only Hohman made this threat but Dominguez aided and
abetted Hohman because he pointed a gun at M.N. and G.C., or (3) only Hohman made
this threat but Dominguez should have foreseen that Hohman would make such a threat
under the natural and probable consequences doctrine. Dominguez objects, however, that
no evidence shows he threatened to kill either M.N. or G.C. He adds that although
evidence shows Hohman threatened M.N., that is not enough to show that he had the
specific intent to aid and abet Hohman or that he should have known Hohman would
have made this threat.
The evidence, however, is more complicated than Dominguez lets on. True, the
evidence shows that only Hohman expressly threatened to kill M.N. if he talked. But it
also shows that Dominguez pointed his gun at M.N. and G.C. and told them to hand over
their phones. It also shows that once M.N. used his Apple Watch to call 911, Dominguez
said, “What the fuck are you doing,” leading M.N. to take off the watch, end the call, and
hand the watch over.
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These facts are enough to support a conviction under section 136.1, subdivision
(c). They sufficiently show that Dominguez prevented M.N. and G.C.—two victims of a
crime—from contacting law enforcement; and the jury could reasonably infer that in
taking their phones and M.N.’s watch, Dominguez knew he was preventing them from
contacting law enforcement and intended to do so. (See People v. Sherman (2022) 86
Cal.App.5th 402, 414 [jury could reasonably infer that the defendant, “by attempting to
prevent [the victim] from using her phone, was attempting to prevent her from reporting
his criminal conduct”].) The facts also sufficiently show that Dominguez, in pointing a
gun at M.N. and G.C., implicitly threatened to use force against them to advance this
intent (see People v. Bacon (2010) 50 Cal.4th 1082, 1127 [possession of a firearm “may
indicate an implied threat of violence”]); and that he acted maliciously—that is, he acted
with “an intent to vex, annoy, harm, or injure in any way another person, or to thwart or
interfere in any manner with the orderly administration of justice” (§ 136, subd. (1)).
This case, to be sure, would be clearer had Dominguez expressly threatened to kill
G.C. and M.N. if they talked to police. But as other courts have explained, a defendant
need not say, “Don’t testify,” to violate section 136.1. (People v. Pettie (2017) 16
Cal.App.5th 23, 54.) Nor need a defendant say anything at all. “ ‘ “As long as his words
or actions support the inference that he . . . attempted by threat of force to induce a person
to withhold testimony [or refrain from contacting law enforcement] [citation], a
defendant is properly” convicted of a violation of section 136.1, subdivision (c)(1).’ ”
(Ibid.) So it is here. Dominguez may not have voiced an explicit threat to harm G.C. and
M.N., but his conduct still supported the inference that he attempted by an implicit threat
of force to prevent those two from contacting law enforcement.4
4 We acknowledge that the prosecution focused on different alleged facts to show that
Dominguez violated section 136.1, subdivision (c)(1). But “theories suggested by the
prosecutor are not the sole theories the jury may consider in making its determination of
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II
Jury Instructions
Dominguez next challenges two parts of the trial court’s jury instructions.
A. False Imprisonment
He first contends the trial court violated its sua sponte duty to instruct the jury on
false imprisonment, a necessarily included offense of kidnapping. We reject his
argument.
“A trial court has a sua sponte duty to instruct the jury on any uncharged lesser
offense that is necessarily included in a charged offense if there is substantial evidence
from which the jury could reasonably conclude that the defendant committed the lesser
included offense but not the charged offense.” (People v. Lopez (2020) 9 Cal.5th 254,
269.) False imprisonment—“the unlawful violation of the personal liberty of another” (§
236)—“is a necessarily lesser included offense of kidnapping” (People v. Magana (1991)
230 Cal.App.3d 1117, 1121). So if the evidence in a case would permit the jury to
reasonably conclude that a defendant committed false imprisonment but not the charged
offense of kidnapping, the trial court would have a sua sponte duty to instruct on the
lesser offense of false imprisonment. “But a lesser included offense instruction on false
imprisonment is not required where the evidence establishes that defendant was either
guilty of kidnapping or was not guilty at all.” (People v. Ordonez (1991) 226 Cal.App.3d
1207, 1233.)
Here, Dominguez asserts the trial court had a sua sponte duty to instruct on false
imprisonment. He notes the jury was given “two versions of the incident,” with the
guilt.” (People v. Clark (2011) 52 Cal.4th 856, 947 [rejecting a defendant’s argument
that his “convictions were inconsistent with the prosecutor’s theory of the case”]; but see
People v. Brown (2017) 11 Cal.App.5th 332, 341 [noting an exception when “ ‘one
criminal act is charged, but the evidence tends to show the commission of more than one
such act’ ”].)
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prosecution arguing that G.C. was moved about 50 feet to M.N.’s apartment and the
defense arguing that G.C.’s testimony was not credible, stating, for instance, that G.C.
“can’t be kidnapped because he’s in on it” and “not a victim in any of this.” Dominguez
argues the “jury should not have been required to choose and fully credit only one of the
two versions of the incident that were presented,” noting that “ ‘[t]ruth may lie neither
with the defendant’s protestations of innocence nor with the prosecution’s assertion that
the defendant is guilty of the offense charged, but at a point between these two
extremes.’ ”
But Dominguez never explains how the jury could credit part of the prosecution’s
argument and part of the defense’s argument and then conclude that he only committed
the lesser offense of false imprisonment. And while he cites a part of the record showing
that his trial counsel argued that G.C. was not credible, this is not “substantial evidence
from which the jury could reasonably conclude that [Dominguez] committed the lesser
included offense but not the charged offense.” (People v. Lopez, supra, 9 Cal.5th at p.
269.) His counsel’s argument was not even evidence at all. (See In re Zeth S. (2003) 31
Cal.4th 396, 413, fn. 11 [“unsworn statements of counsel are not evidence”].) We thus
find Dominguez has failed to show that the facts of this case required an instruction on
false imprisonment.
B. Flight
Dominguez also challenges the trial court’s instruction about his fleeing from
police. The court instructed the jury that “[i]f the defendant fled immediately after the
crime was committed or after he was accused of committing the crime, that conduct may
show that he was aware of his guilt.” Dominguez argues this instruction was flawed for
two reasons: first, because he fled the police three months after the robberies of G.C. and
M.N., not immediately after; and second, because the instruction discriminates against
people of color in failing to acknowledge that they may flee because of racially disparate
policing rather than consciousness of guilt. He alternatively argues that to the extent the
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flight instruction was proper based on his unlawful possession of ammunition at the time
of the flight, he received ineffective assistance of counsel because his counsel failed to
request a limiting instruction. We reject his arguments.
We start with Dominguez’s challenge to the “immediately after” language. He
asserts this language was inappropriate because he fled almost three months after the
crimes around M.N.’s apartment. But as Dominguez ultimately acknowledges, those
were not the only crimes charged in the case—he was also, relevant here, charged with
unlawfully possessing ammunition. And the evidence shows that he fled the officers
while unlawfully possessing this ammunition. That tended to show his awareness of the
unlawful possession and favored the instruction about flight immediately after the crime
was committed. (§ 1127c.)
We turn next to his alternative argument of ineffective assistance of counsel. He
contends his counsel should have requested a limiting instruction that his flight may be
considered only as to the ammunition possession and not as to the earlier crimes around
M.N.’s apartment. But he has not shown that the flight instruction was, as he believes,
altogether improper for these earlier crimes. Again, the instruction allowed the jury to
consider his flight if he “fled immediately after the crime was committed or after he was
accused of committing the crime.” (Italics added.) And here, Dominguez fled after
officers (in obtaining an arrest warrant) accused him of committing the crimes around
M.N.’s apartment; and consistent with these circumstances, the prosecution argued that
he fled because he knew he was “wanted for a kidnap for robbery from October 26th.”
(Cf. People v. Leon (2015) 61 Cal.4th 569, 607 [“ ‘the [flight] instruction neither requires
knowledge on a defendant’s part that criminal charges have been filed, nor a defined
temporal period within which the flight must be commenced’ ”].) Dominguez neither
disputes these facts nor even addresses this separate ground for the flight instruction. He
thus has not shown, as required to show ineffective assistance, that his “counsel’s
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performance was deficient, in that it fell below an objective standard of reasonableness
under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
We turn finally to Dominguez’s claim that the instruction discriminates against
people of color. He notes that racially disparate policing has created reasons for innocent
people of color to flee. He then cites two cases finding that while flight may be
suggestive of consciousness of guilt, racial dynamics can be relevant too. From this,
Dominguez concludes that the trial court here should not have allowed “jurors to use
flight in January 2021, three months after the charged crimes, to find that Dominguez was
conscious of guilt as to the October 2020 incident, particularly where there is evidence
that immediately before the ‘flight’ he was not only surrounded by police cars, but one of
the cars rammed into the door closest to where he was seated.”
Dominguez, however, offers a questionable portrayal of the facts and
misunderstands the cases he cites. Starting with the facts, two officers who witnessed
Dominguez’s flight testified that Dominguez’s car struck a police car, not the other way
around. And although one officer acknowledged that camera footage appeared to show
his car ramming Dominguez’s car, he maintained that Dominguez hit him. He explained
that he tried to cut off Dominguez’s path to prevent him from fleeing the area; that before
he could fully block Dominguez’s path, Dominguez accelerated in front of him; and that
while he tried to stop to avoid a collision, he could not stop in time. No witness, as far as
Dominguez has shown, testified otherwise. Nor can we say that the camera footage is
inconsistent with the officer’s characterization.
Turning to the cases Dominguez cites, both evaluated whether an officer had
reasonable suspicion to stop a Black male following flight. (United States v. Brown (9th
Cir. 2019) 925 F.3d 1150, 1151; Commonwealth v. Warren (Mass. 2016) 475 Mass. 530,
531, 535-536.) Neither, however, “eliminate[d] flight as a factor in the reasonable
suspicion analysis whenever a black male [or other person of color] is the subject of an
investigatory stop.” (Warren, at p. 540; see Brown, at p. 1156.) They instead said that
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flight is not enough to establish reasonable suspicion and that data about racial disparities
in policing “can inform the inferences to be drawn from an individual who decides to step
away, run, or flee from police without a clear reason to do otherwise.” (Brown, at pp.
1156-1157; see Warren, at pp. 538-540.) Nothing in the trial court’s instructions here
were inconsistent with this reasoning. These instructions told the jury that they could
consider Dominguez’s flight, but they explained that “evidence that the defendant fled
cannot prove guilt by itself” and did not foreclose consideration of racial dynamics.
III
Convictions for Both Kidnapping and Kidnapping for Robbery
Dominguez next contends he could not be convicted of both kidnapping and
kidnapping for robbery based on the same conduct. We agree, as do the People.
California law generally permits a jury to convict a defendant of multiple charges
arising from a single act or course of conduct. (People v. Sanders (2012) 55 Cal.4th 731,
736.) But a “ ‘judicially created exception to this rule prohibits multiple convictions
based on necessarily included offenses.’ ” (Ibid.) “When a defendant is found guilty of
both a greater and a necessarily lesser included offense arising out of the same act or
course of conduct, and the evidence supports the verdict on the greater offense, that
conviction is controlling, and the conviction of the lesser offense must be reversed.”
(Ibid.)
In this case, Dominguez was found guilty of both kidnapping and kidnapping for
robbery based on the same conduct—principally, the evidence that Dominguez and
Hohman approached G.C. in the parking lot and then forced him to go to M.N.’s
apartment. But because “simple kidnapping is a necessarily included offense of
kidnapping to commit robbery,” Dominguez could not be convicted of both. (People v.
Lewis (2008) 43 Cal.4th 415, 518.) We thus will reverse the conviction for simple
kidnapping.
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IV
Section 654
Dominguez also raises several arguments based on section 654. The trial court, as
relevant to this argument, imposed sentences for the aggravated kidnapping, robberies,
burglary, and two assaults of M.N. with a firearm, without staying execution of sentence
for any of these offenses. Dominguez asserts this was wrong, reasoning that section 654
bars multiple punishments for the robberies, burglary, and aggravated kidnapping and
similarly bars multiple punishments for the two assaults of M.N. The People agree in
part, conceding that Dominguez could not be punished for both the robbery of M.N. and
the burglary, nor could he be punished for both assaults of M.N. We agree with the
People and otherwise reject Dominguez’s position.
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) A course of conduct is
indivisible “where the defendant ‘ “harbored a single intent.” ’ ” (People v. Mesa (2012)
54 Cal.4th 191, 199.) So “if all of the offenses were merely incidental to, or were the
means of accomplishing or facilitating one objective, [the] defendant may be found to
have harbored a single intent and therefore may be punished only once.” (People v.
Harrison (1989) 48 Cal.3d 321, 335.) But if the “defendant harbored ‘multiple criminal
objectives,’ which were independent of and not merely incidental to each other, he may
be punished for each statutory violation committed in pursuit of each objective, ‘even
though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (Ibid.) “[S]ection 654 does not apply to crimes of violence against
multiple victims.” (People v. Correa (2012) 54 Cal.4th 331, 341.)
Applying section 654 here, we agree, as the People concede, that Dominguez
could not be punished for both the robbery of M.N. and the burglary; he instead could be
punished for only one or the other. That is because Dominguez harbored the same
criminal intent for both crimes—the intent to steal M.N.’s property. (See People v. Smith
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(1985) 163 Cal.App.3d 908, 912.) We agree too, as the People further concede, that
Dominguez could not be punished for both assaults of M.N. with a firearm. Both assaults
occurred in M.N.’s apartment on October 26, 2020. The first involved an assault in the
doorway to M.N.’s apartment; the second involved an assault on the couch in the
apartment when Dominguez pointed his gun at M.N. Because Dominguez harbored the
same criminal intent for both assaults—the intent to secure M.N. while Dominguez and
Hohman stole M.N.’s property—he could not be punished for both assaults.
We disagree, however, with Dominguez’s remaining arguments that section 654
barred multiple punishments for the robberies, burglary, and aggravated kidnapping. The
robbery of M.N. and the aggravated kidnapping are not subject to section 654 because
they were acts of violence against different victims. (People v. Cardenas (2015) 239
Cal.App.4th 220, 230 [robbery and burglary at gunpoint are acts of violence for purposes
of § 654]; People v. Centers (1999) 73 Cal.App.4th 84, 100 [kidnapping at gunpoint is an
act of violence for purposes of § 654].) The robbery of G.C., the burglary, and the
aggravated kidnapping are also not subject to section 654. The burglary (on the one
hand) and the robbery of G.C. and the aggravated kidnapping (on the other) were acts of
violence against different victims—M.N. for the burglary and G.C. for the other crimes.
And while the robbery of G.C. and the aggravated kidnapping involved the same victim,
they involved different objectives. Dominguez’s objective in the robbery of G.C. was to
steal from G.C. But his objective in the aggravated kidnapping was more complicated.
He sought principally to facilitate the burglary and robbery of M.N., as Dominguez
appears to concede. Because the burglary, the aggravated kidnapping, and the robbery of
G.C. all involved either different victims or different objectives, section 654 does not
come into play.
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V
Custody Credits
Lastly, Dominguez contends the trial court failed to fulfill its statutory duty under
section 2900.5 to determine presentence custody credits. We agree, as do the People.
The trial court must determine these credits on remand.
DISPOSITION
The conviction on count 2 for kidnapping is vacated, the sentence is reversed, and
the matter is remanded to the trial court for full resentencing, as described by this
opinion, including, but not limited to, the trial court’s exercise of discretion as to which
counts to stay and the recalculation of custody credits. The judgment is otherwise
affirmed. Following resentencing, the trial court shall prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.
/s/
BOULWARE EURIE, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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