Filed 7/31/26 P. v. Thomas CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B343851
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TA160024)
v.
DOMINIC JACQUES THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deborah S. Brazil, Judge. Affirmed.
Christopher Love, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles G. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
A jury convicted defendant Dominic Jacques Thomas of one
count of second degree murder (Pen. Code, § 187, subd. (a))1 for
fatally stabbing Jesse May. Thomas challenges his conviction,
arguing there was no substantial evidence that he acted with
implied malice. He also contends that the trial court erred by
refusing to instruct the jury on involuntary manslaughter, that
the court incorrectly instructed the jury on implied malice, and
that his attorney rendered ineffective assistance by failing to
request an instruction on a defendant’s right to use deadly force
in response to the victim’s use of deadly force. We find no
reversible error, and we affirm.
FACTS AND PROCEEDINGS BELOW
Thomas killed May shortly after 1:00 a.m. on April 19,
2023, in a parking lot of the Nickerson Gardens housing project
in Watts. No one came forward to the police with information
about the murder, and as a result, the principal evidence in the
case came from surveillance video footage. The silent footage
shows Thomas, May, and several other people hanging out in the
parking lot beginning at 1:00 a.m. For the first 20 minutes of the
video, Thomas and May remain in the parking lot and
occasionally speak with one another, but there is no obvious
rancor between the two.
At 1:21 a.m., according to the time stamp on the
surveillance video, May begins walking away from the parking
lot, but Thomas continues looking in his direction. A few seconds
later, May stops and turns back toward Thomas, as if to respond
to something Thomas has said. May walks back toward Thomas,
1 Subsequent statutory references are to the Penal Code.
2
and the two circle one another. A third man, who has been
standing nearby, sees a potential fight developing, walks toward
Thomas and May, and stands between them. The man puts his
hand on Thomas’s chest and pushes him back. While this is
occurring, May begins taking off his jacket as if preparing for a
fight. Both Thomas and May step to the side so that the third
man’s body is not between them, and Thomas pushes the third
man’s arm aside. May and Thomas move toward each other, and
May puts his arm up as if taking a swing at Thomas, but before
he lands any blow Thomas (who already has a knife in his hand)
lunges at May and stabs him. Blood begins dripping from May
almost immediately as he turns and stumbles away. May
collapses against the hood of a car and falls to the ground, less
than a minute after the encounter began and less than 20
seconds after Thomas stabbed him.
The police arrived on the scene a few minutes later. In the
interim, Thomas remained in the parking lot. He walked over to
the area where May had fallen and stood over him, but he did not
attempt to render aid. A police officer performed CPR on May
but was unable to revive him. The officer testified that he did not
find a weapon on May.
An officer who worked in the area and had known Thomas
for several years identified him in the surveillance video as the
stabber. In addition, DNA evidence of clothing recovered near
the crime scene connected Thomas to the killing. Officers
reviewed additional surveillance video footage showing an
unidentified man throwing a bag onto the roof of another building
in the housing project at around 2:00 a.m. on the night of the
stabbing. The officers searched the roof the following morning
and recovered a bag containing clothing similar to that worn by
3
the stabber in the video, including a distinctive leather aviator
hat with a fur lining. Criminalists tested samples of genetic
material from these items and found that the samples from the
hat, a jacket, and a pair of pants matched Thomas’s DNA.
Samples from two red stains on the pants matched both Thomas’s
and May’s DNA.
A forensic pathologist testified that she conducted May’s
autopsy and determined he died of a stab wound about three and
one-half inches deep. The wound, which was located near the top
of May’s left thigh a few inches away from his groin, severed
May’s left femoral artery and left femoral vein, causing him to die
of blood loss within a matter of minutes.
Thomas called no witnesses. At closing argument, defense
counsel did not deny that Thomas stabbed May but argued that
he acted in self-defense, as May was physically much larger than
Thomas. In the alternative, Thomas’s attorney argued Thomas
was guilty of no more than voluntary manslaughter under a
theory of imperfect self-defense or provocation.
The jury found Thomas guilty of second degree murder, and
the trial court found true an allegation that he had suffered one
prior conviction for voluntary manslaughter, a strike offense.
The court sentenced Thomas to 31 years in prison: 15 years for
second degree murder, doubled because of the prior strike
conviction, plus one year under section 12022, subdivision (b)(1)
for using a deadly or dangerous weapon in the commission of the
offense.
4
DISCUSSION
A. Substantial Evidence Supported the Conviction of
Second Degree Murder
Thomas contends we must reverse his conviction for second
degree murder because there was insufficient evidence that he
acted with implied malice. “Murder is committed with implied
malice when ‘the killing is proximately caused by “ ‘an act, the
natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with
conscious disregard for life.’ ” ’ ” (People v. Reyes (2023) 14
Cal.5th 981, 988.)
“Our task in deciding a challenge to the sufficiency of the
evidence is a well-established one. ‘[W]e review the whole record
in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. . . .’ [Citation.] ‘ “An appellate court must
accept logical inferences that the jury might have drawn from the
evidence even if the court would have concluded otherwise.” ’ ”
(People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
Thomas argues there was no substantial evidence as to
either the objective or subjective components of implied malice.
On the objective test, he claims the prosecution failed to show
that the stabbing “ ‘involve[d] a high degree of probability that it
[would] result in death’ ” (People v. Knoller (2007) 41 Cal.4th 139,
152) because “[t]he prosecution presented no evidence to
establish that thigh wounds are objectively likely to result in
death.” According to Thomas, “[t]he prosecution presented no
5
evidence other than that May died.”2 Thomas also argues the
prosecution failed to prove the subjective aspect of implied
malice, i.e., that he “acted with conscious disregard of the danger
to human life” (id. at p. 156), because “[t]here is no evidence
showing that [he] understood or appreciated that his act of
stabbing May had a high probability it would result in death.
There was no evidence presented suggesting that [Thomas] had
any knowledge of anatomy.”
2 Thomas cites an online report for the proposition that
“thigh wounds are rarely fatal.” This web page was not
introduced as evidence at trial. In his reply brief, he cites several
additional studies that he claims support the same conclusion,
and he requests we take judicial notice of all these documents.
We decline the request for judicial notice. Thomas argues that
“we may take judicial notice of scientific facts.” (Brown v. Smith
(2018) 24 Cal.App.5th 1135, 1142.) If Thomas wanted to present
evidence regarding the dangerousness of thigh wounds in general
or of the specific wound that caused May’s death, the time to do
so was at trial: “It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration.’ [Citation.]
This rule reflects an ‘essential distinction between the trial and
the appellate court . . . that it is the province of the trial court to
decide questions of fact and of the appellate court to decide
questions of law . . . .’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
By waiting until appeal, Thomas also has deprived the People of
a full and fair opportunity to respond before the jury. Our
Supreme Court has made clear “that an appellate court should
not take notice of matters not first presented to and considered
by the trial court, where to do so would unfairly permit ‘one side
to press an issue or theory on appeal that was not raised below.’ ”
(People v. Sakarias (2000) 22 Cal.4th 596, 636.)
6
We find these arguments unpersuasive. “ ‘It is settled that
the necessary element of malice may be inferred from the
circumstances of the homicide.’ ” (People v. Bloyd (1987) 43
Cal.3d 333, 349.) In this case, the circumstances include not just
the specific place where the knife landed, but that Thomas
lunged at May with a knife with the evident goal of stabbing him.
We are aware of no case where a court held that this type of
action did not objectively involve a high probability of death, and
Thomas identifies none. To the contrary, in People v. Cravens
(2012) 53 Cal.4th 500, our Supreme Court held that a single very
hard punch met this standard. (Id. at p. 508.) As Justice Liu
stated in his concurring opinion in that case, “an act that will
certainly lead to death is not required” to meet the objective
standard of implied malice. What matters is that “the probability
of death from the act [is] more than remote or merely possible.”
(Id. at p. 513 (conc. opn. of Liu, J.); accord, People v. Reyes, supra,
14 Cal.5th at p. 989 [“the defendant’s act must not merely be
dangerous to life in some vague or speculative sense”].)
Nor does the lack of direct evidence as to Thomas’s mental
state at the time of the stabbing preclude a finding that he
“ ‘ “ ‘act[ed] with conscious disregard for life.’ ” ’ ” (People v.
Reyes, supra, 14 Cal.5th at p. 988.) “[R]arely would a defendant
provide direct evidence” of his mental state at the time of a
killing, and thus, as with all elements of a crime, “ ‘implied
malice may be proven by circumstantial evidence.’ ” (People v.
Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502.)
The relevant question is not (as Thomas claims) whether the
defendant “had any knowledge of anatomy” or of “where in the
thigh the veins and arteries were,” but rather whether a jury
could reasonably infer that Thomas understood that there was a
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high probability that lunging at May and stabbing him would kill
him. The answer to that question is yes. “ ‘When it is proved
that [the] defendant assaulted [the] decedent with a dangerous
weapon in a manner endangering life and resulting in death and
the jury concludes that the evidence did not create in their minds
a reasonable doubt whether [the] defendant’s act may have been
justified or its criminal character mitigated by the influence of
passion [citation] . . . then no further proof of malice or of intent
to kill is required to support a verdict of guilty of second degree
murder.’ ” (Jackson v. Superior Court (1965) 62 Cal.2d 521, 526;
accord, People v. Cravens, supra, 53 Cal.4th at p. 511 [“the jury
was entitled to infer [the] defendant’s subjective awareness that
his conduct endangered [the victim’s] life from the circumstances
of the attack alone”].) Thomas’s behavior after the stabbing is
also relevant. He did not attempt to render aid or go for help.
Instead, he stood over May’s body and lingered at the scene for
several minutes. (See Cravens, supra, at p. 511 [the defendant’s
failure to check on the victim’s condition or seek assistance
“bolstered the finding of implied malice”].)
B. The Trial Court Did Not Err Prejudicially in
Refusing to Instruct the Jury on Involuntary
Manslaughter
At trial, Thomas requested the court instruct the jury on
involuntary manslaughter as a lesser included offense. Section
192 defines involuntary manslaughter as “the unlawful killing of
a human being without malice” (ibid.) “in the commission of an
unlawful act, not amounting to a felony” (id., subd. (b)). The trial
court reasoned that the facts did not support an inference that
Thomas stabbed May in the course of committing an unlawful act
less than a felony and accordingly denied Thomas’s request.
8
Thomas contends this was error because the scope of
involuntary manslaughter extends farther than the text of the
statute indicates. Courts have held that “an unlawful killing in
the course of an inherently dangerous assaultive felony without
malice” can be involuntary manslaughter (People v. Brothers
(2015) 236 Cal.App.4th 24, 33), and that “an instruction on
involuntary manslaughter as a lesser included offense must be
given when a rational jury could entertain a reasonable doubt
that an unlawful killing was accomplished with implied malice
during the course of an inherently dangerous assaultive felony”
(id. at p. 34).3
We agree with Thomas that the court misinterpreted the
scope of involuntary manslaughter, but not that this amounted to
prejudicial error. The failure to instruct on a lesser included
offense “if there was substantial evidence that [the] defendant[]
committed the lesser, but not the greater offense” (People v.
Gonzalez (2018) 5 Cal.5th 186, 197) is an error of state law, which
3 Justice Kennard explained this apparently anomalous
result in her concurring opinion in People v. Bryant (2013) 56
Cal.4th 959. In short, a broad interpretation of involuntary
manslaughter is necessary to avoid an absurd result in which a
defendant who kills without malice in the commission of an
assaultive felony could escape punishment for homicide. Under
the merger doctrine, such defendant cannot be convicted of felony
murder. (Id. at p. 973, fn. 3 (conc. opn. of Kennard, J.).) If
involuntary manslaughter did not apply to deaths resulting from
assaultive acts, “a defendant who killed in the commission of a
less serious unlawful act (i.e., a misdemeanor) could be convicted
of involuntary manslaughter, but a defendant who killed in the
commission of a more serious unlawful act (i.e., a felony) could
not.” (Id. at p. 974 (conc. opn. of Kennard, J.).)
9
“is harmless if [the] defendant[] cannot demonstrate a reasonable
probability that the jury would have—without the error—reached
a different result.” (Id. at p. 191.) Regardless of whether there
was substantial evidence to support an instruction on
involuntary manslaughter (an issue over which the parties
disagree), Thomas has failed to show he was prejudiced by the
court’s refusal.
“The prejudice arising from the failure to instruct on lesser
included offenses . . . creates a specific kind of risk—that the jury,
faced with an all-or-nothing choice between . . . murder or
acquittal, convicted [the] defendant[] of . . . murder even though
the prosecution failed to satisfy its burden.” (People v. Gonzalez,
supra, 5 Cal.5th at p. 191.) That risk is minimized here, where
the jury was instructed on a different lesser included offense,
namely voluntary manslaughter. “Manslaughter is the unlawful
killing of a human being without malice” (§ 192), and the
question of whether Thomas acted with malice, i.e., whether he
intended to kill May or acted with conscious disregard to his life,
was at the center of the case, as reflected in both sides’ closing
arguments. The jury decided that issue when it convicted
Thomas of murder within one afternoon of deliberation.4 If the
jurors had a reasonable doubt as to whether Thomas acted with
malice, they could have convicted him of voluntary manslaughter.
It is not reasonably probable that the same jury would have
selected the even lesser offense of involuntary manslaughter if
given an opportunity. (See People v. Rogers (2006) 39 Cal.4th
4 The record does not establish how long the jury
deliberated, but the jurors began their deliberations at 2:05 p.m.
and returned with a verdict the same afternoon.
10
826, 884 [because the jury was instructed on voluntary
manslaughter, any error in failing to instruct on involuntary
manslaughter was harmless].)
C. The Court Did Not Err in Instructing the Jury on
Implied Malice
Thomas contends the trial court erred by instructing the
jury incorrectly on the mental state required for implied malice.
Thomas bases his argument on a change in the pattern
instruction on implied malice that was instituted after his trial.
The court instructed the jury on implied malice based on the
CALCRIM No. 520 pattern instruction in effect at the time of
Thomas’s trial in January 2025. The instruction read as follows:
“The defendant had implied malice if [(italics omitted)]:
“1. He intentionally committed the act;
“2. The natural and probable consequences of the act
were dangerous to human life in that the act involved a high
degree of probability that it would result in death [(italics added)];
“3. At the time he acted, he knew his act was dangerous
to human life;
“AND
“4. He deliberately acted with conscious disregard for
human life.”
In October 2025, the CALCRIM instruction was revised to
move the text italicized above from paragraph 2 to the end of the
instruction. The new version of the pattern instruction reads as
follows:
“The defendant had implied malice if [(italics omitted)]:
“1. (He/She) intentionally (committed the act/[ or] failed
to act);
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“2. The natural and probable consequences of the (act/[
or] failure to act) were dangerous to human life;
“3. At the time (he/she) (acted/[ or] failed to act), (he/she)
knew (his/her) (act/[ or] failure to act) was dangerous to human
life;
“AND
“4. (He/She) deliberately (acted/[ or] failed to act) with
conscious disregard for (human/[ or] fetal) life. [¶] . . . [¶]
“An (act/[ or] failure to act) is dangerous to human life if it
involved a high degree of probability that it would result in
death.” (Italics added.)
Thus, the pattern instruction was changed to move the
language defining the term “dangerous to human life” from inside
paragraph 2 to the end of the instruction. In Thomas’s view, this
change is significant because “the instruction now clarifies that
‘[a]n act is dangerous to human life if it involved a high degree of
probability that it would result in death’ whenever that phrase is
used,” whereas the previous version of the instruction suggested
that definition applied only to the objective element of implied
malice.
Thomas forfeited this argument by failing to object to the
instruction before the trial court. If the trial court issues jury
instructions that misstate or omit the elements of an offense, the
defendant may bring a challenge on appeal even if he did not
object before the trial court. (People v. Flood (1998) 18 Cal.4th
470, 482 & fn.7.) But if the instructions accurately stated the
law, a defendant may not claim that the court erred by failing to
issue additional or clarifying instructions unless he requested the
instruction from the trial court. (People v. Guerra (2006) 37
12
Cal.4th 1067, 1134, disapproved on another ground in People v.
Rundle (2008) 43 Cal.4th 76, 151.)
The former version of CALCRIM No. 520 accurately stated
the law on implied malice despite the subsequent revision. The
amendment merely clarified a point already present in the law
and in the former version of the instruction. In People v. Nieto
Benitez (1992) 4 Cal.4th 91, our Supreme Court upheld an earlier
pattern instruction against a similar challenge. The court
reasoned “that the two linguistic formulations—‘an act, the
natural consequences of which are dangerous to life’ and ‘an act
[committed] with a high probability that it will result in death’
are equivalent and are intended to embody the same standard.”
(Id. at p. 111.) An instruction that used only the first
formulation, with no mention of a high probability of death, thus
correctly stated the law. Thomas argues that the Supreme Court
called Nieto Benitez into question in Reyes, where the court stated
that, “To suffice for implied malice murder, the defendant’s act
must not merely be dangerous to life in some vague or
speculative sense; it must ‘ “involve[] a high degree of probability
that it will result in death.” ’ ” (People v. Reyes, supra, 14 Cal.5th
at p. 989, quoting People v. Knoller, supra, 41 Cal.4th at p. 152.)
But in the very next breath, the Reyes court quoted Knoller with
approval for the proposition that “under the objective component
of implied malice, ‘ “ ‘dangerous to life’ ” ’ means the same thing
as a ‘ “high degree of probability that” ’ the act in question ‘ “will
result in death” ’ ” (Reyes, supra, at p. 989, quoting Knoller,
supra, at p. 152). There is thus no indication that the Supreme
Court in Reyes meant to change the fundamental formulation of
implied malice, nor that the Judicial Council’s recent amendment
13
to CALCRIM No. 520 was intended to correct a legal error in the
former version of the instruction.
Because the jury instructions correctly stated the law on
implied malice, and Thomas did not request a clarifying
instruction, he forfeited the claim on appeal. Even if the court’s
instruction on implied malice was erroneous, the error was
harmless because “[w]e find no reasonable likelihood the jury
would interpret the instruction as stating that” (People v. Guerra,
supra, 37 Cal.4th at p. 1134) it need not find that Thomas knew
there was a high probability his action would result in death.
D. Thomas’s Attorney Did Not Render Ineffective
Assistance by Failing to Request an Instruction on
the Right to Respond to Deadly Force
As part of the jury instructions on self-defense, the trial
court told the jury, pursuant to CALCRIM No. 3472, that “[a]
person does not have the right to self-defense if he provokes a
fight or quarrel with the intent to create an excuse to use force.”
Thomas argues his attorney rendered ineffective assistance by
failing to ask the court to include an additional sentence, which
appears in brackets in CALCRIM No. 3472: “[However, if the
defendant used only non-deadly force, and the opponent
responded with such sudden and deadly force that the defendant
could not withdraw from the fight, then the defendant had the
right to defend (himself/herself) with deadly force and was not
required to try to stop fighting.]”
To establish a claim of ineffective assistance of counsel,
“the defendant must show [both] that counsel’s representation
fell below an objective standard of reasonableness” (Strickland v.
Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d
674]), and “that the deficient performance prejudiced the defense”
14
(id. at p. 687). Thomas’s claim fails the first requirement because
there was no evidence that May acted with sudden and deadly
force, nor that Thomas could not withdraw. May was unarmed.
Thomas argues that May, who was much larger than Thomas
and weighed over 300 pounds, used deadly force by trying to
punch Thomas immediately before the stabbing. Although a
punch could potentially constitute deadly force for purposes of the
instruction, this is not such a case. The video shows May flailing
his arm at Thomas just before Thomas stabbed him, but it also
shows May did not have his feet firmly planted in a way that
would allow him to deliver any punch with significant force. In
addition, a third man was standing between Thomas and May
and apparently trying to separate the two. Thomas could have
remained behind the third man, thereby preventing May from
punching him with any power. The presence of the third man
also gave Thomas a greater opportunity to “withdraw from the
fight” by fleeing toward the open space behind him. (CALCRIM
No. 3472.) Thomas could have easily done so; May was quite
obese and does not move particularly fast at any point during the
video. Thomas made no attempt to withdraw, but rather lunged
at May. Thomas’s attorney did not render ineffective assistance
by failing to request this instruction because there was no
evidence to support issuing the instruction.
15
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
BENDIX, Acting P. J.
M. KIM, J.
16