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November 29, 2010


Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed. (Super. Ct. No. 06CF1451)

The opinion of the court was delivered by: Fybel, J.

P. v. Dominguez



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Arturo Rubio testified against Luis Armando Dominguez in Dominguez's criminal trial. Dominguez asked the trial court for permission to question Rubio about Rubio's deportation status, arguing information related to Rubio's status was relevant to his credibility. The court precluded Dominguez from asking Rubio about his deportation status. The jury convicted Dominguez of attempted voluntary manslaughter and found he had personally used a firearm in committing that crime.

Dominguez appeals, contending the trial court erred by abusing its discretion under Evidence Code section 780 and by violating his right to confront witnesses under the Sixth and Fourteenth Amendments to the United States Constitution. We conclude any error was harmless beyond a reasonable doubt, and therefore affirm.


On the evening of May 9, 2006, Dominguez shot at Rubio six times, hitting Rubio in his back and the back of his right leg. The two primary witnesses at trial were Rubio and Dominguez. Their testimony regarding how and why the shooting occurred differed significantly.

Rubio's Testimony

Rubio testified that on the day of the shooting, he was walking back home from a 7-Eleven store when he realized someone was following him. Rubio turned and saw Dominguez behind him. Rubio started running. Dominguez ran after Rubio and started to shoot at him. Rubio was shot in the back and fell to the ground. Rubio was also shot in the back of his right leg. Rubio heard approximately six gunshots. As Rubio lay on the ground, Dominguez attempted to continue shooting, but ran out of bullets. When Dominguez left, Rubio got up and ran home. Rubio testified he was unarmed and did not threaten Dominguez in any way.

Rubio believed Dominguez shot him because of Rubio's relationship with Dominguez's sister, A. In 2005, Rubio began dating A.; at the time, Rubio was 27 years old and A. was 16 or 17 years old. They had a sexual relationship and used methamphetamine together while they were dating. Dominguez did not like Rubio because he felt Rubio was too old for A. and was causing her to use drugs. Dominguez had previously told Rubio to leave A. alone.

Dominguez's Testimony

Dominguez testified to a different version of the shooting. Rubio and some Alley Boyz gang members repeatedly passed Dominguez in their cars. Some of the gang members were grinning and signaling. Dominguez eventually lost sight of Rubio until he began walking to a friend's house and saw Rubio on foot. Rubio appeared to Dominguez to be high on drugs. (Rubio testified he had used methamphetamine and marijuana that afternoon.) Dominguez testified that he again lost sight of Rubio when suddenly Rubio "popped out of nowhere" and the two faced each other. Dominguez warned Rubio to stay away, but Rubio continued to walk toward him. Dominguez testified Rubio reached toward his waistband as if he was going to pull out a gun, so Dominguez panicked and started to shoot his own gun. Dominguez testified he never intended to hit Rubio and was trying to fire off to the side and toward the ground. After firing all six bullets, Dominguez ran away.

Dominguez claimed he shot Rubio in self-defense. Dominguez believed Rubio was an Alley Boyz gang member. Dominguez testified that members of the Alley Boyz gang had killed his cousin in 1999. After his cousin's murder, Dominguez had problems with the Alley Boyz gang. Alley Boyz gang members had made threats against Dominguez, called his mother and told her the Alley Boyz would kill him, flashed gang signs as they passed his mother's house, and beat him up. Dominguez was concerned for his safety when Rubio approached him.

Police Testimony

After the shooting, the police found Dominguez hiding in a storage closet next to his girlfriend's apartment. When questioned by the police, Dominguez denied having a gun. When the police accused him of lying, Dominguez admitted shooting Rubio, throwing his pants and shirt into a dumpster, and giving his gun to a friend.

Procedural History

Dominguez was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)).*fn1 The information alleged that Dominguez intentionally and personally discharged a firearm proximately causing great bodily injury to Rubio (id., § 12022.53, subd. (d)), and that Dominguez personally used a firearm (id., § 12022.5, subd. (a)).

A jury found Dominguez guilty of the lesser included offense of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664, subd. (a)). The jury also found true the allegation that Dominguez had intentionally and personally used a firearm during the commission of the crime (id., § 12022.5, subd. (a)). The jury found not true the other special allegation. The trial court sentenced Dominguez to an aggregate term of seven years.

Dominguez filed a timely notice of appeal.


Before Dominguez's trial began, Rubio was in jail, having pled guilty to a felony offense, and was subject to deportation after completion of his Orange County jail term. Rubio's jail term was scheduled to end before Dominguez's trial. The prosecutor obtained a material witness order under Penal Code section 1332 to ensure Rubio's presence for Dominguez's trial.

During a pretrial hearing, the prosecutor moved to exclude evidence of Rubio's deportation status. The defense objected and asked permission to question Rubio about whether he believed he would receive some benefit in his deportation case in exchange for his testimony against Dominguez. The defense argued Rubio's deportation status was relevant and could affect his credibility if Rubio believed his deportation case would benefit from testifying for the prosecution.

The trial court granted the prosecutor's motion and prohibited the defense from questioning Rubio about his deportation status. The court noted that because deportation proceedings are subject to federal jurisdiction, the state court prosecutor had no input in Rubio's deportation proceeding and the defense's claim that Rubio might think otherwise was speculative and only marginally relevant. Also, the court found the evidence would be prejudicial because illegal immigration was a "hot button" issue in Southern California, and would require an undue consumption of time because of the need to explain Rubio's prior status as a legal resident and the reasons he was now subject to deportation.

Dominguez argues the trial court erred by precluding him from asking Rubio whether Rubio believed he might receive any benefit in his deportation case by testifying against Dominguez, because such questioning might show "[t]he existence or nonexistence of a bias, interest, or other motive" relevant to determining Rubio's credibility. (Evid. Code, § 780, subd. (f).) Dominguez also argues the trial court violated his Sixth and Fourteenth Amendment rights to confront witnesses by precluding him from questioning Rubio about his deportation status. The confrontation clause of the Sixth Amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The right of confrontation "means more than being allowed to confront the witness physically," but rather "'to secure for the opponent the opportunity of cross-examination.'" (Davis v. Alaska (1974) 415 U.S. 308, 315-316.)

The rationale applied by the trial court in making its evidentiary ruling is problematic. However, we need not determine whether Dominguez's confrontation rights were violated, or whether the trial court abused its discretion in excluding the evidence, because any potential error was harmless beyond a reasonable doubt. The jury found Dominguez not guilty of attempted murder, but rather convicted him of attempted voluntary manslaughter. The jury was instructed that in order to find Dominguez guilty of attempted voluntary manslaughter, it must find Dominguez attempted to kill Rubio because Dominguez was acting in imperfect self-defense. The jury could only have found Dominguez acted in imperfect self-defense if it believed Dominguez's testimony regarding the shooting, i.e., that he shot Rubio in self-defense, and rejected Rubio's testimony. Because Rubio was shot in the back and the back of the leg, Dominguez's belief that he was acting in self-defense was unreasonable.


The judgment is affirmed.


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