Heat of Passion for Manslaughter, Not Murder in Gang Killing

In 3.7 seconds, on April 1, 2017, Defendants Luis Alejandro Dominguez and Abraham Leal Torres (collectively, Defendants) shot 21 and killed Angel Sanabria and wounded Joseph Luna.  Defendants also shot at, but missed, hitting two others who were near Sanabria and Luna.

All four victims were members or associates of the Eastside San Diego gang.  The location where Defendants shot the victims was the Villa Escondido apartments in City Heights, an area in eastern San Diego.  Gang member Edwin Garcia lived there and his cohorts often gathered in front of the building. 

Eastside is a full-fledged criminal street gang with 237 documented members, plus at least 250 individuals who associate with the gang.  Its members engage in murder, attempted murder, assault, kidnapping, carjacking and drug trafficking.  They will not hesitate to use guns, knives, brass knuckles and even baseball bats as weapons.

On the day of the shooting at issue, the four victims and Garcia were there, listening to music, drinking beer and smoking PCP-laced cigarettes near a trash dumpster.

Defendants were members of a tagging crew called Running The Streets (RTS), that operated in the same neighborhood at Eastside.  At trial, a police expert testified that a tagging crew consists of two or more person, who using a common name, deface property with graffiti.  In San Diego, there are approximately 200 different tagging crews.

RTS’ primary criminal activity is spray painting graffiti.  Although it is not a criminal street gang, it has some similarities.  If a tagging crew is disrespected, it is expected that the members will respond with violence.  And like gang members, tagging crew members have monikers.  Dominguez’s moniker was Creeps or Creeper and he had RTS tattooed on a finger.  Police considered him a “tag banger” because he was not just there “for the art,” but is one who will also commit acts of violence on rivals. 

Eastside treats tagging crews as a training ground from which to acquire “new talent.”  Over the years, Eastside recruited (or completely absorbed) several tagging crews.  But like so much of gang life, recruiting tagging crew members has the potential for serious violence.  If a recruit were to refuse an invitation to join the gang, Eastside would consider that a person a “rival” who would be “dealt with” for disrespecting the gang, which could mean violence.

It is against this background that the shooting took place.  Defendants were walking through an alley near the apartment complex where the Eastside members were hanging out.

One of the gang members yelled to Defendants, “Hey, come over here.”  Believing it might be someone they knew, Defendants approached.  One of the victims said to Defendants, “Where the fuck you from? . . . This is Eastside.”  Lunging toward one of the Defendants, one of the victims then reached for what appeared to be a weapon in his waistband.  Fearing that the victim was going to kill him and “super scared,” Defendant Torres drew his gun, closed his eyes and fired.  Defendant Dominguez testified similarly.

The incident was captured all on videotape by an apartment resident who just happened to be looking down on the two groups.

The issue at trial was not who shot, but why.  Defendants admitted they were the shooters.  The issue was their state of mind.  Each defendant testified he fired in a panic and fear when victim Sanabria said, “Where the fuck you from? . . . This is Eastside.”

The jury convicted each defendant of second degree murder as to Sanabria and attempted murder as to Luna and Coronado.  The judge sentenced Dominguez to a prison term of 16 years, plus 65 years to life and Torres to 17 years, plus 65 years to life.

On appeal, Defendants contended to the Fourth Appellate District court that the judge erroneously refused their request to instruct the jury on voluntary manslaughter based on heat of passion.  Additionally, they argued that in light of People v. Canizales (2019) 7 Cal. 5th 591, which was decided after their trial, that the judge gave an erroneous “kill zone” instruction on the element of intent for attempted murder.

The Fourth Appellate District Court agreed, finding that the trial court judge erroneously refused to instruct on voluntary manslaughter based on heat of passion.  Where, as here, the evidence could support self-defense and imperfect self-defense, but also that defendant killed because the reason was obscured by passion in response to the victim’s provocative conduct, the trial court should have instructed on all three theories.  People v. Breverman (1998) 19 Cal. 4th 142.

The Fourth Appellate District reminded the reader that “murder is the unlawful killing of a human with malice aforethought.  A person who intentionally kills in a “sudden quarrel or heat of passion” or in the unreasonable, but good faith belief in having to act in self-defense (imperfect self-defense) lacks malice.”  People v. Moye (2009) 47 Cal. 4th 537, 549.  “The resulting crime is voluntary manslaughter, a lesser included offense of murder.  Id.

Voluntary manslaughter based on heat of passion has both an objective and a subjective component.  Moye, supra, at 549.  “The provocative conduct by the victim . . . must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.”  Id., at 550.  A defendant’s “immediate fear and panic” can, in an appropriate case, provided evidence from which a “a reasonable jury could infer that defendant was aroused to passion, and his reason was thus obscured . . .”  Breverman, supra, 19 Cal. 4th at pp. 163-164.

A trial court must instruct on lesser-included offenses when there is substantial evidence that the defendant committed the lesser offense instead of the greater.  People v. Vasquez (2018) 30 Cal. App. 5th 786, 792.

Here, there was sufficient evidence of heat of passion as evidence of voluntary manslaughter and the judge should have instructed the jury on this.  The People also conceded that the “kill zone” jury instruction was improper, so the case was remanded for further proceedings and the convictions were vacated.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Luis Alejandro Dominguez (4th App. Dist., 2021) 66 Cal. App. 5th 163, 281 Cal. Rptr. 3d 82.

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