Supreme Court of California Justia
Docket No. S130860
People v. Dominguez

Filed 8/28/06


Plaintiff and Respondent,
) Ct.App.
Defendant and Appellant.
Super. Ct. No. CRF99-37033

We address in this case three separate claims of error. First, we consider
whether the trial court erred when it failed to instruct the jury, sua sponte, that a
reasonable yet mistaken belief the victim consented to have sexual intercourse was
a defense to a charge of rape. (People v. Mayberry (1975) 15 Cal.3d 143.)
Because defendant did not request such an instruction, rely on that defense, or
present substantial evidence to support the defense, no duty to instruct arose and
the Court of Appeal correctly so ruled.
Second, we revisit an area of criminal law in which recent Court of Appeal
opinions suggest consistency has eluded the appellate courts: When is the forced
movement, or asportation, of a victim sufficient to permit conviction of aggravated
kidnapping? Contrary to the Court of Appeal, we conclude defendant’s forced
movement of the victim here was sufficient to satisfy the asportation requirement.
Finally, we once again address the circumstances in which a person who
commits a serious felony can be liable for murder under the felony-murder rule

when a coparticipant in the felony is the actual killer. (See People v. Cavitt (2004)
33 Cal.4th 187; People v. Pulido (1997) 15 Cal.4th 713.) As we explain, we
conclude, contrary to the Court of Appeal, that any error in the trial court’s failure
in this case to instruct the jury on nonkiller liability under the felony-murder rule
was harmless.
We therefore affirm in part and reverse in part the judgment below.
Early in the morning of August 23, 1997, Officer Edward Escamilla was on
patrol in Hollister when he encountered victim Irma Perez sitting on the curb with
two men; a third man wandered away from the group as Officer Escamilla
approached. Perez appeared intoxicated, but the men did not. When he inquired
about her condition, Perez replied she was fine and said they were waiting for a
taxi. Officer Escamilla ran a warrant check on the two men, defendant Fernando
Dominguez and Lionel Salcedo, but they were not subject to any outstanding
warrants. Escamilla later saw defendant, Salcedo and Perez enter a taxi.
Rafael Gutierrez testified he drove a taxi and picked up the victim and three
men in Hollister around 2:00 a.m. on August 23. He drove them to the San Benito
labor camp, where two of the men exited the cab. When no one volunteered to
pay the fare, Gutierrez started to drive back to town with the third man and Perez
still in the cab. When the man said he would pay, Gutierrez stopped the cab and
the man gave him $10. Perez got out of the taxi and began walking back to town,
away from the labor camp. The man who had paid the fare (the third man) also
got out and followed Perez. After pausing to write in his logbook, Gutierrez drove
back to town, passing Perez on Southside Road. The third man had almost caught
up to her. Gutierrez also saw one of the men who had exited his cab at the labor
camp walking towards Perez from the direction of the camp.
Three days later, an agricultural worker discovered Perez’s body in a
shallow grave in a walnut orchard about 250 feet from Southside Road. Police
observed drag marks in the dirt leading from a spot near the roadway to the
location where the body was found. Sergeant Stephens testified he observed two
sets of shoe prints alongside the drag marks, suggesting two people had dragged
the victim into the orchard where she eventually was found. The victim was
naked from the waist down, and her brassiere was pulled up over her chest and
another piece of clothing was wrapped around her neck. Further investigation
revealed her jeans and underpants had been buried in another part of the walnut
grove, at the bottom of an embankment near Southside Road. Police also found
her shoes in the orchard.
On learning the victim had been seen at the Smokehouse Bar in Hollister
with defendant, Jose Martinez and Lionel Salcedo the night of August 22-23,
police went to the labor camp where defendant and Martinez lived, only to find
they had left that day and not returned. Police located the two late that night,
walking on a rural road. Defendant initially gave police a false name; he later
admitted his identity but denied knowing anything about Perez. He subsequently
changed his story and admitted he had been with Perez the night in question but
denied having sex with her or knowing anything about her death.
Forensic evidence determined Perez had been beaten and choked to death
and that she had been forcibly raped, causing substantial bruising to her posterior
vaginal wall and cervix. Police determined that semen found in her vagina came
from two different donors. A DNA analysis identified one donor as Carlos
Quesada, the father of her children, with whom she was living at the time, and the
other as defendant. Martinez was excluded as a possible donor. Quesada testified
he and Perez had engaged in consensual sex the morning preceding her murder.
Martinez died of natural causes before trial. Defendant testified in his own
defense. He claimed he had had consensual sex with Perez before leaving her
with Martinez. He specifically denied raping or killing her. The jury convicted
defendant of murder (Pen. Code, § 187),1 kidnapping for rape (former § 208, subd.
(d), now § 209, subd. (b)) and rape (§ 261, subd. (a)(2)). The Court of Appeal
affirmed the conviction for rape but reversed the kidnapping and murder
convictions. We granted the People’s petition for review.
I. The Jury Was Properly Instructed on Rape2
Defendant contends the trial court erred by failing to instruct the jury, even
in the absence of a request, that a reasonable though mistaken belief in consent
was a defense to a charge of rape, the so-called Mayberry instruction. (People v.
Mayberry, supra, 15 Cal.3d 143 (Mayberry).) Applying settled principles of law,
we find no error because defendant neither relied on a Mayberry defense nor
presented substantial evidence to support one. His defense was solely one of
consent in fact.
Defendant testified he and Perez got out of the taxi and began walking
down Southside Road. As they walked and conversed, he told Perez he wanted to
have sex with her. She at first declined, saying she did not know him, but she

All subsequent statutory references are to the Penal Code.
When we granted the People’s petition for review, we also directed the
parties to address this issue, raised in defendant’s answer to the petition: “Did the
trial court have a sua sponte duty to instruct the jury pursuant to People v.
[, supra,] 15 Cal.3d 143, concerning a reasonable and bona fide belief in
the victim’s consent to engage in sexual intercourse?”

eventually relented, and the two had sex by the side of the road. Defendant
testified he did not force her; she engaged in intercourse of her own free will. The
forensic evidence, however, showed that before her death Perez suffered
significant bruising of her vaginal walls and cervix. In addition, police found
blood on her jeans.
Defense counsel did not request that the court give CALJIC No. 10.65,3 the
Mayberry instruction, or its equivalent,4 and no such instruction was given.
In the absence of a request for a particular instruction, a trial court’s
obligation to instruct on a particular defense arises “ ‘only if [1] it appears that the
defendant is relying on such a defense, or [2] if there is substantial evidence

At the time, CALJIC No. 10.65 stated in pertinent part: “In the crime of
unlawful [forcible rape] . . . , criminal intent must exist at the time of the
commission of the [rape].
“There is no criminal intent if the defendant had a reasonable and good
faith belief that the other person voluntarily consented to engage in [sexual
intercourse]. . . . Therefore, a reasonable and good faith belief that there was
voluntary consent is a defense to such a charge. [¶] . . . [¶]
“However, a belief that is based upon ambiguous conduct by an alleged
victim that is the product of conduct by the defendant that amounts to force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
person of the alleged victim or another is not a reasonable good faith belief.
“If after a consideration of all of the evidence you have a reasonable doubt
that the defendant had criminal intent at the time of the accused sexual activity,
you must find him not guilty of the crime.”
For example, the final paragraph of Judicial Council of California Criminal
Jury Instructions (2006) CALCRIM No. 1000 provides: “The defendant is not
guilty of rape if he actually and reasonably believed that the woman consented to
the intercourse. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the woman
consented. If the People have not met this burden, you must find the defendant
not guilty.”

supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’ ” (People v. Barton (1995) 12 Cal.4th 186, 195;
see also People v. Maury (2003) 30 Cal.4th 342, 424.)
Defendant can satisfy neither prong of this test. At trial, he testified that
after some initial hesitation, Perez consented to have sex with him and the ensuing
act was consensual and voluntary. In closing argument, defense counsel argued
defendant “had voluntary sex with this lady” and that, considering all the
circumstances, the jury should conclude the victim consented to have sex. The
defense presented no evidence suggesting the victim had refused to consent but
defendant reasonably believed she had consented, nor did defense counsel present
any argument relying on this theory. Accordingly, we conclude defendant did not
rely on a Mayberry defense at trial.
Defendant also fails the second prong of the test because the evidence
supportive of a Mayberry defense was insubstantial at best. As we explained in
People v. Williams (1992) 4 Cal.4th 354, the Mayberry defense “has two
components, one subjective, and one objective. The subjective component asks
whether the defendant honestly and in good faith, albeit mistakenly, believed that
the victim consented to sexual intercourse. In order to satisfy this component, a
defendant must adduce evidence of the victim’s equivocal conduct on the basis of
which he erroneously believed there was consent. [¶] In addition, the defendant
must satisfy the objective component, which asks whether the defendant’s mistake
regarding consent was reasonable under the circumstances. Thus, regardless of
how strongly a defendant may subjectively believe a person has consented to
sexual intercourse, that belief must be formed under circumstances society will
tolerate as reasonable in order for the defendant to have adduced substantial
evidence giving rise to a Mayberry instruction.” (Id. at pp. 360-361, fn. omitted.)
The right to a Mayberry instruction in the absence of a request thus depends on
whether the defendant has proffered “substantial evidence that the defendant
honestly and reasonably, but mistakenly, believed that the victim consented to
sexual intercourse.” (Id. at p. 361.)
In this case, defendant presented no evidence he mistakenly believed Perez
consented to have sex. Instead, he testified she had in fact consented. Perez of
course could not testify, but the evidence she was killed after engaging in sexual
intercourse and that she was beaten and strangled and suffered severe trauma to
her vagina and cervix suggests she resisted rather than consented. As in Williams,
these contrasting scenarios “create no middle ground from which [defendant]
could argue he reasonably misinterpreted [the victim’s] conduct.” (People v.
Williams, supra, 4 Cal.4th at p. 362.)
People v. May (1989) 213 Cal.App.3d 118, on which defendant relies, is
distinguishable. In that case, the defendant and the victim told conflicting stories
regarding consent, but there was also evidence suggesting some equivocal
behavior by the victim on the question of consent. Defendant’s evidence, by
contrast, did not indicate the kind of equivocal behavior from which a reasonable
person could have concluded the victim had consented to have sexual intercourse
when she in fact had not. The most that could be said for defendant’s testimony, if
credited, is that the victim actually consented, not that he mistakenly believed she
had done so. Accordingly, there being no evidence defendant relied on a mistake-
of-fact defense nor any substantial evidence to support such a defense (People v.
Maury, supra, 30 Cal.4th at p. 424), the trial court did not err by failing to instruct
the jury, sua sponte, with the Mayberry mistake-of-fact instruction.
II. The Evidence of Asportation Was Sufficient
We once again address the question of when evidence of forced movement
of a victim is sufficient to satisfy the statutory requirement of asportation, a critical
element of the crime of aggravated kidnapping. In this case, the Court of Appeal
concluded the evidence of asportation was insufficient to support the conviction of
kidnapping for rape. (Former § 208, subd. (d), now § 209, subd. (b).) We
disagree and instead find a reasonable jury could have concluded the evidence of
asportation was sufficient.
At the time of defendant’s conviction, the crime of kidnapping for the
purpose of rape was set forth in former section 208, subdivision (d) (former
section 208(d)). That statute provided: “If [a] person is kidnapped with the intent
to commit rape . . . , the kidnapping is punishable by imprisonment in the state
prison for 5, 8, or 11 years.” (Stats. 1992, ch. 163, § 101, p. 781.)
Concerned in People v. Daniels (1969) 71 Cal.2d 1119 (Daniels) that the
“ ‘criminologically nonsignficant circumstance that the victim [of a robbery] was
detained or moved incident to the crime’ ” resulted in a much harsher penalty (id.
at p. 1138), we held that the Legislature, in creating the crime of aggravated
kidnapping (at that time, kidnapping for ransom, reward, extortion or robbery),
intended to exclude those situations in which the movements of a robbery victim
were “merely incidental to the commission of the robbery and [did] not
substantially increase the risk of harm over and above that necessarily present in
the crime of robbery itself” (id. at p. 1139).
The crime of aggravated kidnapping was enlarged in 1990 to include
kidnapping for enumerated sex crimes. (Stats. 1990, ch. 1560, § 1, p. 7329.) In
1994, we held the Daniels test for asportation applied to kidnapping for rape under
former section 208(d). (People v. Rayford (1999) 9 Cal.4th 1 (Rayford).) Thus,
“the standard of asportation for [former] section 208(d) kidnapping requires that
the movement of the victim be for a distance which is more than that which is
merely incidental to the commission or attempted commission of rape . . . , and
that this movement substantially increase the risk of harm to the victim over and
above that necessarily present in the commission or attempted commission of
these crimes.” (Id. at p. 22.)5
The People’s theory of the present case, as reflected in the prosecutor’s
argument to the jury, was that defendant followed the victim after she got out of
the taxi and, with the intent to rape her, forced her from the side of Southside
Road, down an embankment and into an orchard. Once there, he (possibly with
Martinez’s assistance) raped and killed her, burying her jeans and discarding her
shoes at the scene before dragging her lifeless body further into the walnut orchard
and burying her. An investigating officer testified the drop from the surface of
Southside Road to where the victim’s bloody jeans were buried was approximately
10 to 12 feet, down a “fairly steep” hill. This place, which is where the prosecutor
argued the rape occurred, was about 25 feet from the road.
The prosecutor argued in closing: “We know where her clothes were
found. We know where her body was located. Dominguez had to take her down
. . . 10 or 12 feet down. He took her off the road. . . . [¶] . . . The movement was
for a substantial distance more than that being slight or trivial, meaning a couple
of feet. Something like that. It’s more. It’s substantial, because it was into an
orchard and down a 12-foot embankment. [¶] Now, the movement substantially

After defendant committed his crime, the crime of kidnapping for purpose
of rape was moved to section 209, subdivision (b) (section 209(b)). Section
209(b) now provides: “(1) Any person who kidnaps or carries away any
individual to commit . . . rape . . . shall be punished by imprisonment in the state
prison for life with possibility of parole. [¶] (2) This subdivision shall only apply
if the movement of the victim is beyond that merely incidental to the commission
of, and increases the risk of harm to the victim over and above that necessarily
present in, the intended underlying offense.”

As defendant’s offense predated the amendment of section 209(b) and
neither party has addressed the asportation requirement under that section, we
express no view on that subject.

increased the risk of harm over and above that necessarily present in the crime of
rape itself. Well, why is that and how is that? Well, he took her into an orchard,
down a gully. No cars could see her. Into the orchard in the rural part of the
county that is clearly secluded.”
The jury was instructed that, for a violation of former section 208(d), it
must find defendant kidnapped the victim with the specific intent to rape her6 and
that “[k]idnapping is the unlawful movement by physical force of a person without
that person’s consent for a substantial distance where the movement is not merely
incidental to the commission of the rape and where the movement substantially
increases the risk of harm to the person over and above that necessarily present in
the crime of rape itself.”
The jury was also instructed that “[b]rief movements to facilitate the crime
of rape are incidental to the commission of the rape; on the other hand, movements
to facilitate the rape that are for a substantial distance rather than brief
[movements] . . . are not incidental to the commission of the rape.” The distance
moved must be “more than slight, brief or trivial.”
For purposes of the appeal, defendant concedes substantial evidence shows
he forced the victim against her will to move from along the shoulder of
Southside Road down an embankment and partially into a walnut orchard,
approximately 25 feet away from the road and 10 to 12 feet below its surface. He
disputes, however, that this forced movement was for a distance greater than that
which was merely incidental to the commission of the rape and that the movement

Although rape is a general intent crime (People v. Jones (2003) 29 Cal.4th
1229, 1256), aggravated kidnapping by definition requires proof of specific intent.

substantially increased the risk of harm to the victim, as required by former section
Whether a forced movement of a rape victim (or intended rape victim) was
merely incidental to the rape, and whether the movement substantially increased
the risk of harm to the victim, is difficult to capture in a simple verbal formulation
that would apply to all cases. We discussed the standard in Rayford and explained
that the jury must “consider[] the ‘scope and nature’ of the movement,” as well as
the context of the environment in which the movement occurred.” (Rayford,
supra, 9 Cal.4th at p. 12, italics added; see People v. Aguilar (2004) 120
Cal.App.4th 1044, 1051 [emphasizing the context of the movement].) This
standard suggests a multifaceted, qualitative evaluation rather than a simple
quantitative assessment. Moreover, whether the victim’s forced movement was
merely incidental to the rape is necessarily connected to whether it substantially
increased the risk to the victim. “These two aspects are not mutually exclusive,
but interrelated.” (Rayford, at p. 12.)
The essence of aggravated kidnapping is the increase in the risk of harm to
the victim caused by the forced movement. (Rayford, supra, 9 Cal.4th at p. 22.)
We have articulated various circumstances the jury should consider, such as
whether the movement decreases the likelihood of detection, increases the danger
inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s
opportunity to commit additional crimes. (Id. at p. 13.) In finding insufficient
evidence of asportation, the Court of Appeal below focused too narrowly on a
subsidiary aspect of the analysis, measured distance, rather than considering how
all the attendant circumstances related to the ultimate question of increased risk of
harm. Although any assessment of the Daniels/Rayford test necessarily must
include a consideration of the actual distance the victim was forced to move
(Rayford, supra, 9 Cal.4th at p. 12), we have repeatedly stated no minimum
distance is required to satisfy the asportation requirement (ibid.), so long as the
movement is substantial (id. at p. 23).
Measured distance, therefore, is a relevant factor, but one that must be
considered in context, including the nature of the crime and its environment. In
some cases a shorter distance may suffice in the presence of other factors, while in
others a longer distance, in the absence of other circumstances, may be found
insufficient. For example, moving robbery victims between six and 30 feet within
their home or apartment (see Daniels, supra, 71 Cal.2d at pp. 1123-1124) or 15
feet from the teller area of a bank to its vault (People v. Washington (2005) 127
Cal.App.4th 290, 299) may be viewed as merely incidental to the commission of
the robbery and thus insufficient to satisfy the asportation requirement of
aggravated kidnapping. Yet, dragging a store clerk nine feet from the front
counter of a store to a small back room for the purpose of raping her (see People v.
Shadden (2001) 93 Cal.App.4th 164, 167) or forcibly moving a robbery victim 40
feet within a parking lot into a car (see People v. Jones (1999) 75 Cal.App.4th
616, 629) might, under the circumstances, substantially increase the risk of harm
to the victim and thus satisfy the asportation requirement. These examples are
illustrative only; each case must be considered in the context of the totality of its
Robberies and sex crimes, the necessary predicates for an aggravated
kidnapping (see § 209), can of course be committed in a variety of ways. To
catalog all the myriad and various possible aspects of such crimes would be
impossible. But beginning with the template established in Daniels, supra, 71
Cal.2d 1139, prohibiting increased liability for aggravated kidnapping for what are
essentially brief and trivial movements in “standstill” robberies or for movements
“merely incidental” to commission of the offense, through Rayford, supra, 9
Cal.4th 1, the applicable test under former section 208(d) is clear: for aggravated
kidnapping, the victim must be forced to move a substantial distance, the
movement cannot be merely incidental to the target crime, and the movement
must substantially increase the risk of harm to the victim. Application of these
factors in any given case will necessarily depend on the particular facts and
context of the case.
Because the jury was properly instructed on these factors, we turn to an
evaluation whether sufficient evidence supports the jury’s verdict. We reiterate
the standard rule of appellate review: “In determining whether a reasonable trier
of fact could have found defendant guilty beyond a reasonable doubt, the appellate
court ‘must view the evidence in a light most favorable to respondent and presume
in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ [Citations.] The court does not, however, limit its
review to the evidence favorable to the respondent. As People v. Bassett [(1968)]
69 Cal.2d 122, explained, ‘our task . . . is twofold. First, we must resolve the issue
in the light of the whole record—i.e., the entire picture of the defendant put before
the jury—and may not limit our appraisal to isolated bits of evidence selected by
the respondent. Second, we must judge whether the evidence of each of the
essential elements . . . is substantial; it is not enough for the respondent simply to
point to “some” evidence supporting the finding, for “Not every surface conflict of
evidence remains substantial in the light of other facts.” ’ ” (People v. Johnson
(1980) 26 Cal.3d 557, 576-577.)
Applying the foregoing principles, we find substantial evidence supports
the jury’s verdict sustaining charges of aggravated kidnapping. Defendant forced
the victim in the middle of the night from the side of the road to a spot in an
orchard 25 feet away and 10 to 12 feet below the level of the road. Though the
distance is not great, an aerial photograph of the scene confirms the victim was
moved to a location where it was unlikely any passing driver would see her. Not
only was the place to which she was moved substantially below the road—one
witness testified it was a down a “fairly steep” hill—it was within an orchard
where the trees would also have tended to obscure defendant’s crime from any
onlookers. The movement thus changed the victim’s environment from a
relatively open area alongside the road to a place significantly more secluded,
substantially decreasing the possibility of detection, escape or rescue. This case is
thus unlike the brief and trivial movements of the robbery victims around a room,
as in Daniels, supra, 71 Cal.2d 1119, or of a robbery victim from the teller area of
a bank to a back room where the vault was located, as in People v. Washington,
supra, 127 Cal.App.4th 290, movements found to be merely incidental to
commission of the offense. Here, defendant’s movement of the victim down an
embankment and into an orchard cannot be said to have been merely incidental to
the rape.
People v. Stanworth, supra, 11 Cal.3d 588 (Stanworth), on which the Court
of Appeal relied, also is distinguishable.7 In that case, the victim was walking
home from a shopping center when the defendant accosted her, threatened her
with an ice pick, and forcibly moved her 25 feet into an open field where he
bound, raped and robbed her. We reversed the defendant’s conviction of
kidnapping for robbery, noting the distance the victim was moved was similar to
the distances we found incidental in Daniels, supra, 71 Cal.2d 1119. (Stanworth,
at pp. 597-598.) We explained that “there is no evidence that the relatively brief
movement of the victim here removed her from public view or in any other
manner substantially increased the risk, beyond that inherent in the underlying

Stanworth’s discussion of the asportation standard for simple kidnapping
was disapproved in part in People v. Martinez (1999) 20 Cal.4th 225, 233-235.

crimes, that she would suffer physical harm.” (Ibid.) Here, unlike Stanworth,
defendant’s forced movement of Perez in fact removed her from public view and
substantially increased her risk of harm.
The Court of Appeal found it significant that the victim “was not forced
into an enclosure which concealed her from public view,” but a forced movement
need not be into an “enclosure” to effect a substantial increase in the risk of harm.
Moreover, a reasonable jury could have concluded that the place to which the
victim was moved was in fact one obscured from public view. Although the Court
of Appeal reasoned that there was “a clear line of sight to the top of the
embankment . . . suggesting that anyone standing by the road would have had a
clear view of the spot” where the rape occurred, a reasonable jury could have
concluded, based on all the evidence, including the time of night and the isolated
environment, that any passerby would likely be in a car, not on foot, and would
not likely stop to look down the embankment into the orchard.
Defendant argues the evidence of asportation was insufficient because it
showed the victim was moved less than 90 feet. He maintains that, at the time of
his crime, simple kidnapping required a movement of more than 90 feet, and
because simple kidnapping was a lesser included offense of aggravated
kidnapping, kidnapping for rape must have required a movement of more than 90
feet. We reject defendant’s simple syllogism because its premise fails. At the
time of defendant’s crime, it was not well established that under all circumstances
simple kidnapping required a movement of more than 90 feet. Although this court
found in People v. Green (1980) 27 Cal.3d 1, 65-67, that a victim’s movement of
90 feet was insufficient to constitute a simple kidnapping,8 we later explained in

We rejected this portion of People v. Green in People v. Martinez, supra,
20 Cal.4th at pages 233-237, where we disavowed that any fixed minimum

(footnote continued on next page)

People v. Rayford, supra, 9 Cal.4th at page 14, albeit in dictum, that “we have
resisted setting a specific number of feet as the required minimum distance [for
simple kidnapping], and have further required that the movement must be
‘substantial in character.’ ” (See also Stanworth, supra, 11 Cal.3d 588, 501
[rejecting a test involving a specific number of feet].) We thus reject this claim.
In sum, considering the context of the forced movement of the victim here
and viewing the evidence in the light most favorable to the People, we conclude
there was sufficient evidence of asportation; that is, the movement in this case was
“for a distance which is more than that which is merely incidental to the
commission . . . of rape . . . , and that this movement substantially increase[d] the
risk of harm to the victim over and above that necessarily present in the
commission [of rape].” (Rayford, supra, 9 Cal.4th at p. 22.)
III. Failure to Instruct on Nonkiller Complicity Under the Felony-
murder Rule
Defendant contended on appeal that the trial court prejudicially erred by
failing to instruct the jury, sua sponte, on the liability of nonkillers in a felony-
murder situation. The Court of Appeal agreed, finding the instructional error
prejudicial. As we explain, even assuming for argument the trial court erred by
failing to instruct the jury, the error was harmless.
The People’s theory of the case was that defendant personally raped and
killed Perez, although Martinez may have been present for the rape and probably

(footnote continued from previous page)
distance applied to simple kidnapping. In addition, People v. Green, supra, was
overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834,
footnote 3.

participated in the murder. Thus, the prosecutor presented evidence that defendant
and Martinez lived together in the San Benito labor camp; Perez was seen leaving
a bar in the early morning hours with defendant, Martinez and Salcedo; a taxi
dropped the four of them off near the labor camp where defendant and Martinez
lived; and defendant walked down Southside Road toward Perez, with Martinez
close behind. Tests on seminal fluid found inside Perez’s body identified
defendant as the donor and excluded Martinez. The People presented evidence
showing Perez had sustained substantial bruising of her genitals indicating
significant force had been applied, that those injuries were inflicted before death,
and that she had been beaten and strangled. Footprint evidence suggested two
persons had dragged Perez to her shallow grave in the walnut orchard. When
apprehended, both defendant and Martinez appeared to be fleeing. Defendant told
police conflicting stories about the events in question.
In closing argument, the prosecutor argued defendant personally
participated in Perez’s killing; that the jury could infer defendant’s guilt from his
multiple lies to police, whereas Martinez did not lie to police; that defendant was
the one who had sex with Perez, as shown by the DNA evidence; that the evidence
of bruising showed a forcible sex act; and that, after the rape, both defendant and
Martinez beat Perez and then dragged her into the orchard and buried her.
The trial court instructed the jury with CALJIC Nos. 8.10 and 8.21,
defining first degree felony murder. The first instruction provided that: “The
defendant is accused in Count 1 of the information of having committed the crime
of murder in violation of Penal Code section 187. Every person who unlawfully
kills a human being during the commission or attempted commission of rape is
guilty of the crime of murder in violation of section 187 of the Penal Code.” The
second instruction provided that “[i]n order to prove this crime, each of the
following elements must be proved: [¶] The human being was killed and the
killing occurred during the commission or the attempted commission of the crime
of rape. The unlawful killing of a human being, whether intentional or
unintentional or accidental which occurred during the commission or attempted
commission of the crime of rape is murder in the first degree when the perpetrator
had a specific intent to commit the crime. Specific intent to commit rape and the
commission or attempted commission of such crime must be proved beyond a
reasonable doubt.”
Defendant requested aiding and abetting instructions as well as CALJIC
No. 8.27, which addresses the felony-murder liability of offenders who aid and
abet in the felony but do not participate in the killing, but for reasons not apparent
in the record, these instructions were not given. At the conclusion of its
instructions, the trial court asked: “Counsel, do you agree that I have read all the
instructions that we agreed upon?” Both the prosecutor and defense counsel
answered in the affirmative.
The jury retired to deliberate at 4:30 p.m. on January 29, 2001, but was
excused 15 minutes later. It resumed deliberations the next day. At 4:01 p.m., the
jury sent the trial court a note9 stating: “We are unclear of the criteria of the
statute. To find Dominguez guilty of felony murder (187). Did Dominguez only
need to be present at the time of [Perez’s] death, or did he need to kill her
himself[?] We are clear about the rape element of the crime.” The trial court
responded with a handwritten note, stating: “I cannot offer anything more than the
wording of [instructions] 8.10 and 8.21 which I previously read.” Nothing in the
record suggests the trial court consulted with counsel before responding to the
jury’s note. The jury returned its guilty verdicts almost immediately thereafter.

The jury sent out two other notes during deliberations, but neither is
relevant to the inquiry before us.

At the sentencing hearing, defense counsel moved to preserve the jury’s
notes in the record. After promising to have the clerk locate the notes, the
following colloquy occurred:
“MR. HOWELL [defense counsel]: . . . I believe that one of the last notes,
the tenor of the note was that if the jury found that Mr. Dominguez was present at
the time of the killing, could that be a basis for a guilty verdict?
“THE COURT: And the Court answered that by merely referring back to
the instruction, the number, that defined that crime. And we made no comment
directly to the question. [¶] Is that the way you remember it, Mr. LaForge?
“MR. LaFORGE [the prosecutor]: That’s correct, your Honor.
“THE COURT: So I think the answer is the Court merely made a notation,
Please read instruction such and such―
“MR. HOWELL: Right.
“THE COURT: ―which states the law.
“MR. HOWELL: So the Court and counsel do remember the note as I do,
that it was to the effect, Can we find him guilty if he was present―
“THE COURT: Right.
“MR. HOWELL: ―during the homicide?
“THE COURT: Right. And we felt that we didn’t want to comment
directly on that point. And the law is very clear, that he has to do an act, as the
instruction read.
“MR. HOWELL: All right.”
Defendant did not raise the alleged instructional error, or claim the trial
court’s response to the jury’s note was improper, in a motion for a new trial.
Defendant argued on appeal that the trial court erred by failing to give
CALJIC No. 8.27, especially once the jury expressed confusion concerning the
liability of nonkiller aiders and abettors to a felony murder. A trial court “is
obligated to instruct the jury on all general principles of law relevant to the issues
raised by the evidence, whether or not the defendant makes a formal request.”
(People v. Blair (2005) 36 Cal.4th 686, 744.) The trial court initially fulfilled this
obligation by instructing the jury with the standard felony-murder instructions.
Because the People proceeded on a theory that defendant was the actual rapist and
killer, not an aider and abettor, and defendant’s defense was that he had
consensual sex with the victim before leaving her alive with Martinez, the court
had no obligation to give CALJIC No. 8.27, or its equivalent (see, e.g., CALCRIM
No. 540B), as an initial matter.
Did an obligation to provide further instructions arise when the jury sought
additional guidance? The jury asked the court for advice concerning whether
defendant could be convicted of murder on a felony-murder theory when he was
not the actual killer. The trial court gave the jury no additional guidance but
merely referred it back to instructions the court had already given, instructions that
did not address an aider and abettor’s liability for murder under the felony-murder
rule if he participated only in the underlying felony.
We need not resolve whether the trial court was remiss, for the People
concede for purposes of this appeal that the trial court erred by failing, after the
jury’s question, to instruct the jury on nonkiller liability for felony murder. We
thus turn to whether this assumed error requires reversal.
We recently addressed the liability of nonkillers under the felony-murder
rule in People v. Cavitt, supra, 33 Cal.4th 187 (Cavitt). We there explained that
section 189 renders all murders committed in the perpetration of, or attempted
perpetration of, certain enumerated felonies, including rape and kidnapping,
murder in the first degree. “The mental state required is simply the specific intent
to commit the underlying felony [citation], since only those felonies that are
inherently dangerous to life or pose a significant prospect of violence are
enumerated in the statute. [Citations.] ‘Once a person has embarked upon a
course of conduct for one of the enumerated felonious purposes, he comes directly
within a clear legislative warning—if a death results from his commission of that
felony it will be first degree murder, regardless of the circumstances.’
“The purpose of the felony-murder rule is to deter those who commit the
enumerated felonies from killing by holding them strictly responsible for any
killing committed by a cofelon, whether intentional, negligent, or accidental,
during the perpetration or attempted perpetration of the felony. [Citation.] ‘The
Legislature has said in effect that this deterrent purpose outweighs the normal
legislative policy of examining the individual state of mind of each person causing
an unlawful killing to determine whether the killing was with or without malice,
deliberate or accidental, and calibrating our treatment of the person accordingly.
Once a person perpetrates or attempts to perpetrate one of the enumerated felonies,
then in the judgment of the Legislature, he is no longer entitled to such fine
judicial calibration, but will be deemed guilty of first degree murder for any
homicide committed in the course thereof.’ ” (Cavitt, supra, 33 Cal.4th at p. 197,
italics added.)
Liability for felony murder thus extends to those who knowingly and
purposefully participate in the underlying felony even if they take no part in the
actual killing. This was the scenario about which defendant’s jury inquired. At
the time of his trial, CALJIC No. 8.27 stated in pertinent part: “If a human being
is killed by any one of several persons engaged in the commission or attempted
commission of the crime of [rape], all persons, who either directly and actively
commit the act constituting that crime, or who with knowledge of the unlawful
purpose of the perpetrator of the crime and with the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, aid,
promote, encourage, or instigate by act or advice its commission, are guilty of
murder of the first degree, whether the killing is intentional, unintentional, or
accidental.” (Italics added; see People v. Pulido, supra, 15 Cal.4th at p. 728.)
Had the trial court given CALJIC No. 8.27 in response to the jury’s
question, the jury would have been apprised of the law regarding nonkiller
complicity in the felony-murder context. Not having been instructed with CALJIC
No. 8.27 or its equivalent, the jury was never specifically asked with respect to the
murder to find that defendant either: (1) “directly and actively” participated in the
rape of Perez, or (2) with knowledge of Martinez’s unlawful purpose to rape her,
and with the intent or purpose of committing, encouraging or facilitating the rape,
aided, promoted, encouraged or instigated by act or advice the commission of that
We need not determine whether omission of the instruction in these
circumstances is merely state law error subject to the Watson test (People v.
Watson (1956) 46 Cal.2d 818, 836) or error of constitutional dimension subject to
the stricter harmless beyond a reasonable doubt test (Chapman v. California
(1967) 386 U.S. 18, 24), for we find the assumed error was harmless under any
standard. The circumstances of this case show that, on proper instructions, the
jury found defendant kidnapped the victim and forcibly raped her. The evidence
demonstrated the victim was beaten before she was raped. The evidence also
showed she was killed the night she was raped, on or near the spot where
defendant kidnapped and raped her. Footprint evidence suggested two persons
dragged the victim from the embankment next to the road into the orchard, where
her body was eventually found. Finally, it was uncontradicted that defendant and
Martinez fled their home in the labor camp immediately after the victim’s body
was discovered, and that defendant told several lies to police when questioned.
Judging from the jury’s question, one or more jurors may have been
considering the possibility that following defendant’s commission of the
kidnapping and rape, Martinez alone killed the victim while defendant merely
looked on. But in convicting defendant of rape and kidnapping, the jury indicated
it had concluded beyond a reasonable doubt that defendant “directly and actively”
participated in the rape of Perez. Accordingly, even had the trial court instructed
the jury with CALJIC No. 8.27 in response to its question, the jury would
necessarily have concluded defendant was liable for murder, either as the direct
perpetrator or under the felony-murder rule applicable to nonkilling cofelons.
Although the Court of Appeal reasoned the jury could have found a temporal or
causal connection lacking between the rape and the homicide (see Cavitt, supra,
33 Cal.4th at pp. 196, 200), we disagree. As the foregoing evidence demonstrates,
this is not one of those rare situations (id. at p. 204, fn. 5) in which a felony and a
killing, though occurring in a continuous transaction, lack a causal connection.
Moreover, although the jury’s note suggests the jury (or perhaps just one
juror) was considering the possibility defendant did not actively participate in the
victim’s murder but was merely present at her violent demise, “mere presence” is
not exculpatory in the circumstances of this case. Although a decision not to
participate actively in the murder might in the abstract evince some degree of
reduced moral responsibility, defendant, following his kidnapping and forcible
rape of the victim, was “ ‘no longer entitled to such fine judicial calibration’ ” of
his criminal liability. (Cavitt, supra, 33 Cal.4th at p. 197.)
Defendant cites People v. Gavin (1971) 21 Cal.App.3d 408 (Gavin) in
support, but that case does not assist him. In Gavin, the People presented evidence
that a neighbor bought tablets of LSD and Benzedrine at the defendant’s home on
or about October 25, 1969. The defendant testified and denied knowing about
those drugs, but she admitted to a different story: On September 27, 1969, she
discovered her housemate Bryan possessed several types of drugs (but no LSD) in
her home and that Bryan had used her young son to facilitate some drug sales.
When Bryan was absent from the house for several weeks, she gathered up his
drugs, buried them in the backyard, and called the sheriff’s department because
“ ‘[s]omebody who would give dope to kids shouldn’t be allowed to be out on the
street’ and she ‘wanted something to be done.’ ” (Id. at p. 416.)
The prosecution relied on the October 25 drug possession as the basis for
the charges. During its deliberations, the jury expressed confusion and asked
whether the September 27 possession (which the defendant had admitted) could
qualify as “on or about” October 25. In answering the jury’s question, the trial
court did not clarify whether the September 27 possession could qualify as “on or
about” October 25. On appeal following the defendant’s conviction for possessing
amphetamines (but not LSD), the Court of Appeal reversed, explaining that “[t]he
[trial] court’s failure to clear up the jury’s confusion regarding the September 27
‘possession’ was fundamentally unfair to the defendant.” (Gavin, supra, 21
Cal.App.3d at p. 418.) “The simple and proper solution would have been for the
court to tell the jury directly that the People’s evidence had been offered to prove
that defendant unlawfully possessed drugs on October 24 and 25, 1969; and
defendant was not charged with possession on any other date.” (Ibid.)
Although in both Gavin, supra, 21 Cal.App.3d 408, and the instant case the
jury expressed some confusion and asked a question which in Gavin the trial court
answered inadequately as, arguably, did the trial court here, the similarity between
the two cases ends there. In Gavin, the jury apparently was choosing between two
options, only one of which would have supported the criminal charges. Here, by
contrast, the jury was deciding between two scenarios: one, that defendant
kidnapped, raped and then murdered the victim; and the other, that defendant
kidnapped and raped the victim, but then stood by while Martinez murdered her.
But as we have explained, ante, defendant, under the circumstances of the case,
was liable for first degree murder on a felony-murder theory even if he passively
stood by while Martinez killed the victim because defendant “directly and
actively” (CALJIC No. 8.27) participated in the rape. Gavin is thus inapposite.
Defendant also cites People v. Washington (1965) 62 Cal.2d 777 in support,
arguing the felony-murder instructions delivered to the jury (CALJIC Nos. 8.10,
8.21) did not require the jury to find, as a condition of finding defendant guilty of
murder as a nonkilling coparticipant, that the actual killer (Martinez) had aided
and abetted defendant’s rape of the victim. He claims this omission cannot be
deemed harmless. This issue was not raised in the Court of Appeal and is thus not
properly raised in this court. (People v. Randle (2005) 35 Cal.4th 987, 1001; Cal.
Rules of Court, rule 28(c)(1).)
Assuming the issue were properly before us, we find no prejudicial error.
In People v. Washington, supra, 62 Cal.2d 777, the defendant and a cofelon,
James Ball, attempted to rob Carpenter, an employee of a gas station. Carpenter,
in self-defense, shot and killed Ball and wounded the defendant. A jury convicted
the defendant of felony murder, but this court reversed, concluding that the felony-
murder rule could not apply because “the killing [was] not committed . . . in the
perpetration or attempt to perpetrate robbery.” (Id. at p. 781.) This was so, we
explained, because the killing was not in furtherance of the robbery. (Id. at
p. 782.) The view of the felony-murder rule that the killing must somehow
advance or facilitate the underlying felony has, however, been superseded by later
cases. Thus, in Cavitt, supra, 33 Cal.4th 187, we held there need be only a logical
nexus between the felony and the killing. Here, overwhelming evidence shows the
victim’s killing was causally and temporally related to her kidnap and rape.
In sum, because the facts overwhelmingly demonstrate defendant directly
and actively participated in Perez’s rape and kidnapping, the trial court’s failure to
instruct the jury with CALJIC No. 8.27 or its equivalent was harmless under any
The judgment of the Court of Appeal is affirmed in part and reversed in
part, and the case is remanded for further proceedings consistent with this opinion.


I concur in the majority’s affirming in part and reversing in part the Court of
Appeal’s judgment. In particular, I agree with the majority’s conclusion that
substantial evidence supports defendant’s conviction for aggravated kidnapping.
(Maj. opn., ante, at p. 13.) I think it unnecessary to go further and discuss the
asportation standard for simple kidnapping in 1997. (Maj. opn., ante, at pp. 15-
As the majority notes, defendant asserts “the evidence of asportation was
insufficient because it showed the victim was moved less than 90 feet. He
maintains that, at the time of his crime, simple kidnapping required a movement of
more than 90 feet, and because simple kidnapping was a lesser included offense of
aggravated kidnapping, kidnapping for rape must have required a movement of
more than 90 feet.” (Maj. opn., ante, at p. 15.) The response to this argument is
that here, defendant was convicted of aggravated, not simple kidnapping. At the
time of his crime, we had recently reaffirmed that for aggravated kidnapping
“there is no minimum number of feet a defendant must move a victim.” (People
v. Rayford (1994) 9 Cal.4th 1, 12; see People v. Daniels (1969) 71 Cal.2d 1119,
1128 [to define the required movement “in terms of a specific number of inches or
feet or miles would be open to a charge of arbitrariness”].)

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Dominguez

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
124 Cal.App.4th 1270
Rehearing Granted


Opinion No.

Date Filed: August 28, 2006


County: San Benito
Judge: Manuel C. Rose, Jr.*


Attorneys for Appellant:

Dallas Sacher, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Laurence
K. Sullivan, Eric D. Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.

*Retired judge of the former Municipal Court for the Delta Judicial District, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Dallas Sacher
Sixth District Appellate Program
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171

John H. Deist
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5855

Opinion Information
Date:Docket Number:
Mon, 08/28/2006S130860

1The People (Plaintiff and Respondent)
Represented by John H. Deist
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Dominguez, Fernando (Defendant and Appellant)
Represented by Dallas Sacher
6th District Appellate Program
100 N. Winchester Boulevard, Suite 310
Santa Clara, CA

Aug 28 2006Opinion: Affirmed in part/reversed in part

Jan 21 2005Petition for review filed
  by respondent (The People).
Jan 21 2005Record requested
Jan 25 2005Received Court of Appeal record
  two file jackets/briefs/two accordian files
Jan 28 2005Answer to petition for review filed
  by counsel for appellant (Fernando Dominguez).
Mar 10 2005Time extended to grant or deny review
  to and including April 21, 2005 or the date upon which review is either granted or denied.
Mar 30 2005Petition for review granted (criminal case)
  Petition for review GRANTED. In addition to the issues set forth in the petition for review, the parties are requested to brief the following issue: Did the trial court have a sua sponte duty to instruct the jury pursuant to People v. Mayberry (1975) 15 Cal.3d 143, concerning a reasonable and bona fide belief in the victim's consent to engage in sexual intercourse? Votes: George, C.J., Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Apr 1 2005Note:
  Records sent to Cal-Coord. Office: CT=2, RT=10, 2 affidavits, 2 w/2 suppl., 3, w/suppl., 4 w/suppl., 6, 7, 8= 2, Pet. for Rehrg., Confid. envelope.
Apr 11 2005Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Sixth District Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Apr 25 2005Request for extension of time filed
  Counsel for respondent requests extension of time to May 31, 2005, to file the opening brief on the merits.
Apr 28 2005Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including May 31, 2005.
May 31 2005Opening brief on the merits filed
  by counsel for resp, (People)
Jun 29 2005Answer brief on the merits filed
  by counsel for aplt. (Dominguez)
Jul 18 2005Reply brief filed (case fully briefed)
  by counsel for resp. (People)
Aug 10 2005Compensation awarded counsel
  Atty Sacher - Sixth District Appellate Program
Mar 9 2006Letter sent to:
  San Benito County Supr. Crt. requesting exhibits (by fax)
May 2 2006Case ordered on calendar
  June 1, 2006, at 9:00 a.m., in San Francisco
May 12 2006Filed letter from:
  Dallas Sacher, counsel for appellant Dominguez, affirming availability for scheduled argument on June 1st, and requesting no further delay of argument due to travel plans on June 2nd.
Jun 1 2006Cause argued and submitted
Aug 28 2006Opinion filed: Affirmed in part, reversed in part
  and the case is remanded for further proceedings consistent with this opinon. OPINION BY: Werdegar, J. --- joined by: George, C.J., Kennard, Baxter, Chin, Moreno, JJ. CONCURRING OPINION BY : Corrigan, J.
Sep 12 2006Rehearing petition filed
  counsel for aplt. (F. Dominguez)
Sep 13 2006Time extended to consider modification or rehearing
  To November 22, 2006.
Nov 1 2006Rehearing denied
Nov 1 2006Opinion modified - no change in judgment
Nov 1 2006Remittitur issued (criminal case)
Nov 3 2006Received:
  from CA/6, receipt for remittitur
Mar 28 2007Compensation awarded counsel
  Atty Sacher - Sixth District Appellate Program

May 31 2005Opening brief on the merits filed
Jun 29 2005Answer brief on the merits filed
Jul 18 2005Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website