Peo v. Dominguez

22CA1935 Peo v Dominguez 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1935
Adams County District Court No. 12CR1913
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ivan Dominguez,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ivan Dominguez, appeals the postconviction

court’s order vacating a felony conviction but denying

postconviction relief as to two misdemeanor convictions. We affirm.

I. Background

¶2 The following facts are undisputed. It was midday when police

received information from Dominguez’s girlfriend that he was selling

drugs and would be at an auto mechanic’s garage. When police

arrived at the garage, Dominguez hid. When an officer tried to

arrest him, he attempted to flee. At some point during the ensuing

struggle, Deputy Brett Schulze sustained injuries when his face hit

an engine part lying on the ground. The police used substantial

force to establish physical control over Dominguez, and Dominguez

left the scene in an ambulance.

¶3 Later, the police found a cell phone and Dominguez’s wallet on

top of a pile of junk in the trunk of one of the cars at the garage — a

car that did not belong to Dominguez. They also found a plastic

bag containing methamphetamine underneath the pile of junk.

¶4 As relevant here, the prosecution charged Dominguez with

possession with intent to distribute a schedule II controlled

substance, second degree assault, attempted disarming of a peace

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officer, and resisting arrest. At trial, Dominguez’s (then former)

girlfriend testified that she “found out” from Dominguez that he was

selling drugs, but she did not see him sell drugs — she only saw

him using them. Dominguez testified that he neither used nor sold

drugs at the time. He explained that his actions — tossing his

wallet into the trunk and hiding — were efforts to avoid deportation

to Mexico. He admitted that he resisted arrest but clarified that

was “because they were hitting me.”

¶5 The theories of defense were that the drugs did not belong to

Dominguez and that the conduct that gave rise to the assault,

disarming, and resisting charges was justified by self-defense

against unlawful or excessive force. Dominguez’s counsel, Douglas

Romero, tried but failed to introduce (1) medical evidence showing

that Dominguez hadn’t recently used methamphetamine;

(2) fingerprint evidence excluding Dominguez as the person who left

a latent print on the bag of methamphetamine; and (3) evidence

suggesting that the phone found in the trunk did not belong to

Dominguez. In rebuttal closing, the prosecution argued that

Dominguez had been high on methamphetamine at the time of his

arrest.

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¶6 A jury found Dominguez guilty of the drug charge (a class 3

felony) and two misdemeanors: resisting arrest and third degree

assault (a lesser included offense of the second degree assault

count). A division of this court affirmed the convictions. See

People v. Dominguez, (Colo. App. No. 14CA1411, July 30, 2015) (not

published pursuant to C.A.R. 35(f)) (Dominguez I).

II. Postconviction Proceedings

¶7 Dominguez filed a Crim. P. 35(c) motion claiming ineffective

assistance of trial counsel, among other claims. The motion was

supplemented by alternate defense counsel (ADC), who detailed five

ineffective assistance claims. The district court denied the motion

without an evidentiary hearing.

¶8 Dominguez appealed, and a division of this court reversed the

district court’s order and remanded for an evidentiary hearing on

whether Romero had provided ineffective assistance by failing to

(1) call an appropriate witness to testify that Dominguez’s drug

panel screening was negative for drugs, including

methamphetamine; (2) call a fingerprint examiner to testify that a

latent fingerprint found on the bag of methamphetamine did not

match Dominguez’s known fingerprints; and (3) inspect the cell

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phone found near Dominguez’s wallet. People v. Dominguez, slip op.

at ¶¶ 38, 48 (Colo. App. No. 19CA0509, Oct. 29, 2020) (not

published pursuant to C.A.R. 35(e)) (Dominguez II). The division

noted that the evidence connecting Dominguez to the

methamphetamine in the trunk was not overwhelming. Id. at

¶¶ 35, 37.

¶9 On remand, the stipulated exhibits and testimony

demonstrated the following:

• Medical records of a urine screen from the day of

Dominguez’s arrest showed that his system did not

contain detectable levels of any tested controlled

substances, including methamphetamine.

• Reports and testimony from both the Colorado Bureau of

Investigation and an independent examiner showed that

the latent print on the methamphetamine bag was

suitable for comparison but did not match Dominguez’s

known prints.

• A physical investigation of the cell phone from the trunk

would have revealed some evidence that the phone did

not belong to Dominguez.

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¶ 10 Applying Strickland v. Washington, 466 U.S. 668 (1984), the

postconviction court found that Romero had performed deficiently

by failing to present these three pieces of evidence (“the missing

evidence”) at trial. It reasoned that the missing evidence made it

less likely that the methamphetamine in the trunk belonged to

Dominguez. The court found a reasonable probability that

Romero’s errors contributed to Dominguez’s felony drug conviction,

but no reasonable probability that the errors contributed to his

misdemeanor convictions for assault and resisting arrest. It

vacated only the felony conviction.

III. Discussion

¶ 11 Dominguez challenges the postconviction court’s prejudice

determination as to his two misdemeanor convictions. The People

concede that Romero’s performance was deficient and that

Dominguez was prejudiced with respect to his felony drug

conviction, but they contend that the postconviction court properly

found no prejudice as to the misdemeanor convictions. Although

the case presents a close call, we agree with the postconviction

court that Dominguez did not demonstrate sufficient prejudice to

reverse his misdemeanor convictions.

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A. Standard of Review and Applicable Law

¶ 12 We review the postconviction court’s resolution of a Crim. P.

35(c) motion after a hearing as a mixed question of fact and law.

People v. Corson, 2016 CO 33, ¶ 25. We defer to the court’s factual

findings if they are supported by the record but review de novo the

court’s ultimate conclusions. Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). “Where the evidence in the record supports the

findings and holding of the postconviction court that presided over

an evidentiary hearing, the judgment will not be disturbed on

review.” People v. Wardell, 2020 COA 47, ¶ 27.

¶ 13 In a Crim. P. 35(c) proceeding, the convictions are presumed

valid and the defendant bears the burden to prove his entitlement

to postconviction relief. Dunlap, 173 P.3d at 1061. To prevail on a

claim of ineffective assistance of counsel, the defendant must show

that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced

him. Strickland, 466 U.S. at 687-88.

¶ 14 To prove prejudice, the defendant must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694. In other

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words, the defendant must show “a probability sufficient to

undermine confidence in the outcome.” Id.; accord Ardolino v.

People, 69 P.3d 73, 76 (Colo. 2003). Whether the defendant has

made such a showing is a legal conclusion that we review de novo.

People v. Sharp, 2019 COA 133, ¶ 11.

¶ 15 “Satisfaction of this standard is more difficult than . . . the

harmless error standard.” Hagos v. People, 2012 CO 63, ¶ 13. But

it does not require a showing that counsel’s deficient performance

“more likely than not altered the outcome of the case.” Id. at ¶ 17.

The question we must consider as to each conviction is whether,

considering the totality of the evidence absent trial counsel’s errors,

there is a reasonable probability that the factfinder would have had

a reasonable doubt respecting guilt for the relevant offenses.

Strickland, 466 U.S. at 695.

B. Analysis

¶ 16 Because it is undisputed that Romero’s performance at trial

was deficient and that Dominguez showed prejudice as to his drug

conviction, we direct our analysis to whether Dominguez showed

prejudice as to his misdemeanor convictions. In doing so, we

consider the totality of the evidence, including the missing evidence,

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to assess whether a reasonable probability exists that Dominguez’s

jury would have had a reasonable doubt about his guilt as to those

two offenses. See Strickland, 466 U.S. at 695. Because the

evidence for the misdemeanor convictions substantially overlaps,

we consider those convictions in tandem.

1. The Evidence Presented

¶ 17 Even though it was largely testimonial, the evidence

supporting Dominguez’s misdemeanor convictions was strong.

Every eyewitness, including Dominguez, testified that Dominguez

did not comply with police orders and tried to avoid arrest. Every

eyewitness also testified that it took the efforts of multiple officers to

gain physical control over Dominguez. Photographs presented at

trial — showing scattered car parts, a downed trash can, and

Schulze’s injuries — corroborated police testimony that Schulze was

injured on a car part during the struggle.

¶ 18 This evidence was uncontroverted at trial and sufficiently

establishes the elements of resisting arrest and third degree

assault. See § 18-8-103(1)(b), C.R.S. 2024 (a person commits

resisting arrest if he knowingly attempts to prevent a peace officer,

acting under color of their official authority, from effecting an arrest

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by using any means which creates a substantial risk of causing

bodily injury to the peace officer); see also § 18-3-204(1)(a), C.R.S.

2024 (a person commits third degree assault if he knowingly or

recklessly causes bodily injury to another person).

¶ 19 Conversely, the evidence supporting the claim of self-defense

was weak. See People v. Fuller, 781 P.2d 647, 650 (Colo. 1989)

(holding that section 18-1-704, C.R.S. 2024, “permits a person to

defend himself when he reasonably believes that unreasonable or

excessive force . . . is being used by law enforcement officers or that

its use is imminent”). By Dominguez’s own account, the police did

not use any physical force until after an officer told him he was

under arrest and after he refused to comply with an order to put

both of his hands on top of a car. See § 18-1-707, C.R.S. 2024 (as

relevant here, a peace officer may use physical force only if

nonviolent means would be ineffective in effecting an arrest or

preventing an escape). This account comported with that of every

other eyewitness. And there was no evidence that Dominguez

anticipated the imminent use of excessive force at that point.

¶ 20 Only Dominguez testified that the events that immediately

followed included force that was plausibly unreasonable or

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excessive — a twist of his hand, a punch in the ribs, and a throw

towards a car — before he attempted to run. But substantial

testimony from other witnesses, including a defense witness,

indicated that Dominguez tried to run before any significant force

was used. And Dominguez testified that he had an alternative

motive for running — to avoid deportation. Moreover, Dominguez’s

account of the sequence of events was highly inconsistent with the

accounts provided by all other eyewitnesses, including his own

witnesses.

¶ 21 Given the overall strength of the prosecution’s evidence

supporting Dominguez’s two misdemeanors, he faced a high bar to

establish prejudice. See Strickland, 466 U.S. at 696 (A verdict “only

weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support.”); accord

Dunlap, 173 P.3d at 1069.

2. Alleged Prejudice

¶ 22 Dominguez argues that the jurors would have had a

reasonable doubt as to the elements of resisting arrest and assault

if they had been presented with the missing evidence because (1) it

had impeachment value — directly contradicting testimony from

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police and Dominguez’s girlfriend; (2) it supported Dominguez’s

assertion of self-defense; and (3) it would have prevented damaging

argument by the prosecution in closing. We are not persuaded.

a. Impeachment Value

¶ 23 First, the record does not support Dominguez’s argument that

the missing evidence had impeachment value. No witness testified

that (1) Dominguez had used methamphetamine or appeared to be

high on the day of his arrest; (2) Dominguez’s fingerprints were on

the bag; or (3) the phone was identified as belonging to Dominguez.

Therefore, the missing evidence does not directly contradict any

testimony.

¶ 24 Although police officers testified that Dominguez was

abnormally strong and unfazed even by a taser, we read that

testimony, in context, to suggest only that significant force was

warranted — not to imply that Dominguez was high on drugs.

Dominguez alleges only one instance of testimony that could have

been contradicted by the missing evidence. When questioned about

the fingerprint analysis of the bag containing methamphetamine, a

deputy testified that the Colorado Bureau of Investigation “couldn’t

establish the portions of fingerprints that were on the Saran Wrap,

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if you will, to positively identify anyone.” This statement is true,

albeit subject to different interpretations. While the missing

evidence could have been used to clarify the deputy’s statement, it

would not have impeached his testimony. And finally, Dominguez

points to no relevant testimony about ownership of the phone, and

our review of the record reveals none.

¶ 25 We therefore conclude that the missing evidence had little or

no impeachment value.

b. Self-Defense

¶ 26 Dominguez’s second argument — that the missing evidence

was crucial to whether he owned the methamphetamine and, in

turn, to whether he believed that the officers’ use of force was

reasonable — is similarly unpersuasive. Because the record, even

including the missing evidence, provides minimal support for

Dominguez’s claim of self-defense (as discussed in Part II.B.1), we

perceive no reasonable probability that the jury’s assessment of this

defense turned on its perception of whether Dominguez owned the

methamphetamine.

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c. Closing Argument

¶ 27 Third, Dominguez points to the following argument that the

prosecutor made in rebuttal closing:

[W]e know that [Dominguez’s] actions are at
least reckless, and that’s third degree assault,
because . . . all of his actions were reckless.
And why do we know his actions were
reckless? Because we know he was high; he
was high on meth. The officers said they’d
never dealt with anybody who had this kind of
strength. He’s getting tased. He doesn’t even
remember getting tased when he’s up on the
stand talking to you about it. Why? Because
he didn’t remember what happened when this
all went down. Why? Because he’ s high on
meth.

Romero objected, asserting that the argument assumed facts not in

evidence. The court allowed it, reminding the jury for the second

time that argument is not evidence. While we agree with

Dominguez that the argument, facilitated by the missing evidence,

was certainly damaging, we also presume that the jury followed the

trial court’s admonition and did not treat the argument as evidence.

See Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (“Absent

evidence to the contrary, we presume that a jury follows a trial

court’s instructions.”). Accordingly, the argument does not

undermine our confidence in the jury’s misdemeanor verdicts.

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¶ 28 In sum, considering the totality of the evidence, we perceive no

reasonable probability that, had the jury been privy to the missing

evidence, it would have had a reasonable doubt regarding

Dominguez’s guilt for the misdemeanor offenses committed in the

course of evading arrest.

IV. Disposition

¶ 29 The order is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

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