People v. Torrez CA2/7 ( 2022 )

Filed 9/20/22 P. v. Torrez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316187
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA060732)
v.
ARMANDO TORREZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael Terrell, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________
Armando Torrez, convicted in 2009 of first degree murder
with felony-murder special-circumstance findings, appeals the
order denying his petition for resentencing pursuant to Penal
Code former section 1170.95 (now section 1172.6)1 following an
evidentiary hearing at which the superior court, acting as
independent fact finder, found beyond a reasonable doubt Torrez
was one of the actual killers of Jose Carrillo and, as such, was
guilty of murder under the law as of January 1, 2019 and
ineligible for resentencing relief. Torrez contends he was entitled
under the federal and California Constitutions to a jury
determination whether he is legally culpable for murder under
Penal Code sections 188 and 189 as amended by Senate Bill
No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) at a trial at
which all constitutionally required evidentiary rules, including
the right to confront and cross-examine witnesses, are observed.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Torrez’s Conviction and Appeal
Torrez, Itzel Gutierrez, Erika Rodriguez and Anthony
Hernandez were jointly charged in an information filed June 12,
2008 with the special-circumstance murder of Carrillo (§§ 187,
subd. (a), 190.2, subd. (a)(17)), first degree residential robbery
while acting in concert (§ 211, 213, subd. (a)(1)(A)) and conspiracy
to commit robbery (§ 182, subd. (a)(1)).
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
Undesignated statutory references are to the Penal Code.
2
According to the trial testimony of Rodriguez, who had
pleaded guilty to second degree murder, Gutierrez conspired with
Rodriguez, Torrez and Hernandez to rob Carrillo, Gutierrez’s
stepfather.2 Gutierrez lured Carrillo to a motel room on the
pretext of having arranged a liaison with a prostitute. Torrez
told Rodriguez the men were going to rob Carrillo and “put him
out long enough to rob him” by choking him. When Rodriguez
expressed her reluctance to participate in the plan, Torrez
threatened her, warning he would “fuck [her] up himself” if she
did not go through with it.
Initially Rodriguez went to Carrillo’s room. Then Torrez
and Hernandez gained entry. Once inside the room, Hernandez
began beating Carrillo and placed him in a chokehold. The men
forced Carrillo to the ground, where Torrez held him down using
his knee and arms, while the beating continued. According to
Rodriguez, she told Torrez to stop the beating when Carrillo was
no longer resisting, but Torrez continued to hit their victim.
Hernandez then handed Rodriguez some of Carrillo’s belongings
and told her to leave the room, which she did.
Rodriguez subsequently reunited with Torrez and
Hernandez, who were in Carrillo’s truck. The same day Torrez
used Carrillo’s bank card to purchase gas and to withdraw cash.
Carrillo’s body was discovered several days later, lying on
the floor against a wall, hogtied to a chair with bedsheets. The
2 Torrez was tried separately from Gutierrez and Hernandez,
who were each convicted of first degree murder with special-
circumstance findings, robbery and conspiracy to commit robbery.
(See People v. Gutierrez (Dec. 12, 2011, B225054) [nonpub. opn.];
People v. Hernandez (Feb. 17, 2011, B223310) [nonpub. opn.].)
3
cause of death was asphyxiation due to strangulation (by
bedsheets).
The jury convicted Torrez of first degree felony murder3 and
found true the special-circumstance allegations of murder during
the commission of robbery and burglary. The jury also found
Torrez guilty of first degree robbery and conspiracy to commit
robbery. Torrez was sentenced to life imprisonment without the
possibility of parole with the sentences on the robbery and
conspiracy counts stayed pursuant to section 654.
We affirmed the judgment, rejecting Torrez’s sole argument
on appeal that his sentence should be modified to an
indeterminate term of 25 years to life because the felony-murder
special-circumstance provision of section 190.2,
subdivision (a)(17), violated the Eighth and Fourteenth
Amendments. (People v. Torrez (Oct. 12, 2010, B218513)
[nonpub. opn.].)
2. Torrez’s Petition for Resentencing
On October 3, 2019 Torrez, representing himself, filed a
petition for resentencing under former section 1170.95, checking
boxes on the form petition establishing his eligibility for
resentencing relief, including the boxes stating he had been
convicted under the felony-murder rule and could not now be
convicted of first or second degree murder because of changes
made to sections 188 and 189 by Senate Bill 1437.4 At Torrez’s
3 The trial court instructed the jury Torrez was charged with
first degree murder only under the felony-murder rule.
4 Torrez’s earlier petition for resentencing was withdrawn
with permission from the court to refile it at a later date.
4
request the court appointed counsel to represent him during the
resentencing process.5
The People filed an opposition to the petition, arguing
Torrez was ineligible for resentencing because he was either the
actual killer or a major participant in the underlying robbery and
had acted with reckless indifference to human life. Torrez’s
counsel filed a reply, arguing there was no finding at trial that
Torrez was the actual killer of Carrillo and contending the felony-
murder special-circumstance findings, made prior to the Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), did not
make Torrez ineligible for resentencing relief as a matter of
law—a view recently adopted by the Supreme Court in People v.
Strong (2022) 13 Cal.5th 698 (Strong) .
Following the submission of supplemental briefs, the court
on February 10, 2021 ordered an evidentiary hearing on Torrez’s
petition for resentencing. A hearing on the merits was held on
September 8, 2021. Torrez was present in the courtroom. At the
outset of the hearing the court explained it had received input
from counsel as to what its focus should be and stated it had
reviewed the court of appeal opinion affirming Torrez’s
conviction, the briefs submitted to this court, and “portions of the
trial transcript that dealt with the testimony of Erika Rodriguez,
as well as the testimony of the paramedic who was the first
responder and the coroner’s testimony.” Neither side presented
any new evidence, instead arguing based primarily on
Rodriguez’s and the coroner’s trial testimony whether Hernandez
5 Because of the retirement of the judge who had presided at
Torrez’s trial and sentencing, Torrez’s petition for resentencing
was assigned to a different judge.
5
and Torrez had jointly killed Carrillo. The court took the matter
under submission at the conclusion of the hearing.
On September 21, 2021 the court filed its order denying the
petition. The court noted that Carrillo was still alive when
Rodriguez left his motel room and had not yet been hogtied.
“There was no testimony concerning who hogtied Carrillo or how
the hogtying occurred. As such, there is no direct evidence that
Defendant was the actual killer.” Nonetheless, the court
concluded, “the only reasonable conclusion that can be drawn
from the circumstantial evidence is that Defendant and
Hernandez jointly killed Carrillo. . . . The court agrees with the
People’s contention that the evidence demonstrates that
subduing and hogtying Carrillo was a two-man job.” Accordingly,
the court found the People had proved beyond a reasonable doubt
that Torrez was an actual killer of Carrillo and, as such, was not
eligible for relief under former section 1170.95.
Torrez filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see Strong, supra, 13 Cal.5th at pp. 707-708; People v.
Lewis (2021) 11 Cal.5th 952, 957.) It also authorized, through
former section 1170.95, an individual convicted of felony murder
or murder based on the natural and probable consequences
doctrine to petition the sentencing court to vacate the conviction
6
and be resentenced on any remaining counts if he or she could
not now be convicted of murder because of Senate Bill 1437’s
changes to the definitions of the crime. (See Strong, at p. 708;
Lewis, at p. 957; Gentile, at p. 843.) As amended by Senate Bill
No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective
January 1, 2022, these ameliorative changes to the law now
expressly apply to attempted murder and voluntary
manslaughter.
When, as here, a petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
As originally enacted, former section 1170.95,
subdivision (d)(3), provided, “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” Senate Bill 775
amended former section 1170.95, subdivision (d)(3), to provide,
“At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019. . . .
7
A finding that there is substantial evidence to support a
conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.”
2. Torrez Has No Statutory or Constitutional Right To
Have His Petition for Resentencing Treated as a Retrial
for Murder
Without questioning the standard of proof applied by the
superior court, which issued its ruling prior to the enactment of
Senate Bill 775, or challenging the sufficiency of the evidence to
support the court’s finding the People had proved beyond a
reasonable doubt Torrez was an actual killer of Carrillo, Torrez
contends in his appeal6 that at the hearing to determine whether
he was guilty of murder under amended sections 188 and 189,
and thus entitled to resentencing relief under section 1172.6, he
had a right to a jury trial and all related constitutional rights
afforded criminal defendants. In making this argument Torrez
contends, alternatively, the Legislature impliedly intended those
protections be afforded petitioners when it enacted Senate
6 Although Torrez did not request a jury trial or otherwise
raise his constitutional claims in the superior court, he contends
the issue has not been forfeited because it would have been futile
to raise it prior to enactment of Senate Bill 775. In addition, he
asserts, resolution of the issue involves a pure question of law
based on undisputed facts that we may consider for the first time
on appeal (see, e.g., People v. Runyan (2012) 54 Cal.4th 849, 859,
fn. 3; People v. Jimenez (2021) 73 Cal.App.5th 862, 874), and
doing so will obviate the need for a petition for writ of habeas
corpus alleging ineffective assistance of counsel (see In re Spencer
S. (2009) 176 Cal.App.4th 1315, 1322). The Attorney General
does not argue forfeiture, addressing Torrez’s claim on the
merits. We do, as well.
8
Bill 775; it would violate petitioners’ right to equal protection not
to grant them the same constitutional rights as provided when
adjudicating criminal misconduct in the first instance; or those
rights are directly guaranteed by the Sixth and Fourteenth
Amendments.7
Torrez’s implied legislative intent argument is premised on
the generally accepted principle that, when adopting legislation,
“‘the Legislature is presumed to have had knowledge of existing
domestic judicial decisions and to have enacted and amended
statutes in the light of such decisions as have a direct bearing
upon them.’” (People v. Slaughter (1984) 35 Cal.3d 629, 640.)
Thus, in Slaughter the Supreme Court held, when the
Legislature enacted section 871.5 to provide a method for
reviewing a magistrate’s decision dismissing a criminal charge in
addition to that already provided in section 739, but did not
specify the standard of review for such a decision, it was
7 Torrez reminds us the Supreme Court in People v. Gentile,
supra, 10 Cal.5th 830, which held prior to the passage of Senate
Bill 775 that the ameliorative provisions of Senate Bill 1437 did
not apply to nonfinal judgments on direct appeal, declined to
decide whether denial of a petition for resentencing under former
section 1170.95 on the basis of facts not found by a jury “would
run afoul of Apprendi [v. New Jersey (2000) 530 U.S. 466]”
because “Gentile has not filed a petition for resentencing under
section 1170.95, nor do we have before us a section 1170.95
proceeding in which the trial court relied on facts not found by a
jury to sustain an otherwise invalid conviction.” (Gentile, at
p. 857.) We are, of course, bound to follow Supreme Court
precedent. (See, e.g., Fujifilm Corp. v. Yang (2014)
223 Cal.App.4th 326, 333.) The Court’s statement it has “no
occasion here to opine” on a question not properly before it,
however, provides no guidance for our resolution of that issue.
9
appropriate to presume the Legislature did not intend to enact a
new and different standard, but rather to incorporate the
standard of review existing for dismissals under section 739.
(Slaughter, at p. 640.)
Torrez emphasizes that Senate Bill 775 amended former
section 1170.95, subdivision (d)(3), to allow at the hearing
following issuance of an order to show cause only evidence
“admissible under current law.” Absent any contrary intent,
Torrez argues, under the principle articulated in People v.
Slaughter, supra, 35 Cal.3d 629, it must be presumed the
Legislature with that amendment intended to incorporate all
federal and state constitutional protections available to a
criminal defendant, including the right to a unanimous jury
determination of legal culpability beyond a reasonable doubt.
Not only does Torrez’s argument require a massive
linguistic and logical leap, but it also ignores section 1172.6,
subdivision (d)(1), which provides, if the superior court issues an
order to show cause after finding the petitioner made a prima
facie showing of entitlement to relief, “the court” must hold an
evidentiary hearing to determine whether to vacate the murder
conviction and resentence the petitioner. Senate Bill 775
amended subdivision (d)(1) to include convictions for attempted
murder and manslaughter within its scope, but did not otherwise
change the language calling for a hearing before the court, not a
jury trial.
Moreover, the existing case law we presume the
Legislature knew when it enacted Senate Bill 775 uniformly
rejected the argument a petitioner was entitled to a jury
determination of his or her continued legal culpability for murder
under amended sections 188 and 189. (E.g., People v. James
10
(2021) 63 Cal.App.5th 604, 609, and cases cited therein; see
People v. Howard (2020) 50 Cal.App.5th 727, 740 [court order
redesignating conviction as one for first degree burglary without
a jury trial, following vacatur of murder conviction, did not
violate petitioner’s constitutional rights]; People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [requiring defendant to utilize
postjudgment procedure specified in former section 1170.95,
which does not provide for a jury trial, was constitutional; the
retroactive relief afforded by Senate Bill 1437 “is not subject to
Sixth Amendment analysis”].) Given those decisions, the
Legislature’s silence on the point cannot reasonably be
interpreted to incorporate previously rejected Sixth Amendment
protections into the retroactive, postjudgment petitioning
process.
Equally without merit is Torrez’s equal protection
argument, which begins with the conclusion that principles of
fairness require that defendants previously convicted of murder
have their continued culpability for murder under amended
sections 188 and 189 decided under the same rules and
procedures as utilized in trials of defendants currently charged
under those provisions. But, as Torrez at least nominally
recognizes, the first step in equal protection analysis is to
determine whether the state has adopted a classification that
affects two or more similarly situated groups in an unequal
manner. (People v. Foster (2019) 7 Cal.5th 1202, 1211-1212;
People v. Barrett (2012) 54 Cal.4th 1081, 1107; Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253.) It simply defies credulity to
assert defendants standing trial for murder in the first instance
and individuals properly convicted of murder under then-existing
law, like Torrez, who are now seeking retroactive relief pursuant
11
to Senate Bills 1437 and 775, must be considered similarly
situated. (See People v. Floyd (2003) 31 Cal.4th 179, 191 [“‘[t]he
14th Amendment does not forbid statutes and statutory changes
to have a beginning, and thus to discriminate between the rights
of an earlier and later time’”]; cf. People v. Mancilla (2021)
67 Cal.App.5th 854, 869-870 [individuals convicted of murder
under the natural and probable consequences doctrine and those
convicted of provocative act murder are not similarly situated for
purposes of resentencing relief under Senate Bill 1437]; see also
Strong, supra, 13 Cal.5th at p. 718 [petitioners seeking
resentencing under section 1172.6 with pre-Banks/Clark felony-
murder special-circumstance findings and those with post-
Banks/Clark findings are not similarly situated; “[o]ne [group]
has been determined, beyond a reasonable doubt, to have acted
as a major participant with reckless indifference to human life as
those terms are now understood under Banks and Clark, and the
other has never been the subject of such a determination”].)
Torrez’s claim of an equal protection violation fails at the
threshold without any need to address the Legislature’s valid
reasons for treating differently individuals previously convicted
of murder seeking resentencing and those first facing trial for the
crime.
Torrez’s final argument—that the Sixth and Fourteenth
Amendments, as interpreted in Apprendi v. New Jersey (2000)
530 U.S. 466 and subsequent case law, require a unanimous jury
verdict for the redetermination of a previously convicted
petitioner’s responsibility for murder under amended
sections 188 and 189—has been rejected by every court of appeal
that has addressed the issue. (E.g., People v. Basler (2022)
80 Cal.App.5th 46, 61-62 [decided after the effective date of
12
Senate Bill 775]; People v. James, supra, 63 Cal.App.5th at
p. 609.) Those cases hold the opportunity for a hearing to
determine whether a valid conviction for murder under the
natural and probable consequences doctrine or the felony-murder
rule should be vacated in light of Senate Bill 1437’s amendments
to sections 188 and 189 is an act of lenity that does not implicate
the Sixth Amendment, including the right to a jury trial. (See
James, at p. 609 [“[n]o constitutional provision required the
Legislature to authorize relief under the conditions specified in
section 1170.95 and none compels it to make the conditions
subject to jury determination”].)
Torrez urges us to reject this analysis, arguing reliance by
courts considering the right to a jury trial under former
section 1170.95 mistakenly relied on the Supreme Court’s act-of-
lenity language in People v. Perez (2018) 4 Cal.5th 1055. In Perez
the Supreme Court held the trial court may make factual
findings based on new evidence regarding a petitioner’s eligibility
for resentencing under Proposition 36, the Three Strikes Reform
Act of 2012, without a jury because retroactive application of the
benefits from the proposition was a legislative act of lenity that
did not implicate Sixth Amendment rights. (Perez, at pp. 1063-
1064.)8 Discretionary postconviction resentencing decisions
under Proposition 36, Torrez asserts, are fundamentally different
from adjudication of continued culpability for murder under
amended sections 188 and 189. Yet, other than noting
8 The courts of appeal have similarly held there is no right to
a jury trial in postconviction resentencing proceedings under
Proposition 47, The Safe Neighborhood and Schools Act, a similar
act of lenity by the Legislature. (See, e.g., People v. Jefferson
(2016) 1 Cal.App.5th 235, 241.)
13
resentencing under Proposition 36 generally involves factors
personal to the petitioner, he fails to explain why.
Under the constitutional principle established in Apprendi
v. New Jersey, supra, 530 U.S. at page 490, other than the fact of
a prior conviction, facts that increase the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury and proved beyond a reasonable doubt. A proceeding
under section 1172.6, however, cannot result in an increased
sentence; it permits only downward sentencing adjustments.
(Cf. Dillon v. United States (2010) 560 U.S. 817, 828 [rejecting
Sixth Amendment right to a jury in resentencing proceedings
based on downward modification of applicable sentencing
guidelines].)
Moreover, as the Attorney General points out, petitioners
seeking relief under Senate Bills 1437 and 775 are not alleging
error occurred at their trials, nor are they requesting (or will they
be entitled to) a plenary resentencing hearing. (Cf. People v.
Burhop (2021) 65 Cal.App.5th 808, 815 [“[u]ntil a section 1170.95
petition is filed and adjudicated, with due process afforded to the
People to contest the merits of the petition [citation], the
petitioner’s existing judgment of conviction and sentence remains
presumptively authorized and unaffected by Senate Bill 1437”].)
By making the amendments to sections 188 and 189 retroactive,
the Legislature has simply provided an opportunity for certain
individuals convicted as accomplices under then-valid theories of
imputed malice to be resentenced. But those individuals must
initiate the process (by filing a valid petition and establishing a
prima facie entitlement to relief). And to reiterate, the only
possible outcomes of such a proceeding are the prior valid
judgment of conviction and sentence will remain unchanged or
14
the sentence will be reduced. It is hard to imagine a clearer act
of legislative leniency. As such, we agree with all of our
colleagues who have held the section 1172.6 resentencing process
does not implicate the Sixth Amendment.
DISPOSITION
The postjudgment order denying Torrez’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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