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Name: People v. Dominguez
Case #: H022727
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/12/2004
Subsequent History: 1/13/05 modified & rehrg. den.

Appellant was convicted of rape, kidnap, and first degree felony murder. Charges had been brought against appellant and another man, Martinez, who died before trial. On appeal, appellant contended that prejudicial error occurred in connection with the murder charge because the evidence suggested that Martinez had committed the actual killing, and the jury explicitly asked for further instructions concerning that situation, the instructions addressed only the possibility that appellant himself was the killer. The appellate court agreed and reversed. The jury received no instruction whatsoever regarding the culpability of one who aids the felony but does not personally commit the murder. CALJIC 8.27 would have told the jury that if the defendant was not the killer he could be guilty of felony murder only if he was aiding and abetting the killer in the perpetration of the offense. Here, appellant could only be guilty of felony murder based on a killing by Martinez if the killing occurred while they were jointly engaged in a rape or the killing occurred in pursuit of the common purpose of perpetrating the rape. The jury received no instruction regarding this, and the error was compounded when the court refused to elaborate on the law when the jury expressed its obvious confusion. Here, there were ample grounds for the jury to have entertained a reasonable doubt as to whether the rape and the killing were parts of a single continuous transaction, and therefore the error cannot have been harmless. The kidnap conviction also had to be reversed because there was no evidence that at the time of asportation of the victim, appellant intended any further harm to her than is inherent in the offense of rape.