People v. Torres CA2/7

Filed 8/16/22 P. v. Torres CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316189
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451140)
v.
JOSE GUADALUPE TORRES,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, 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, Amanda V. Lopez and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Jose Guadalupe Torres pleaded no contest in March 2018 to
one count of voluntary manslaughter (Pen. Code, § 192,
subd. (a)),1 admitted the special allegation the offense had been
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)) and was sentenced to state prison for 16 years. In
September 2021 Torres, representing himself, petitioned for
resentencing pursuant to former section 1170.95 (now
section 1172.6),2 added to the Penal Code by Senate Bill No. 1437
(Stats. 2018, ch. 1015) (Senate Bill 1437) as of January 1, 2019.
The superior court summarily denied the petition, ruling, because
he had been convicted of voluntary manslaughter, not murder,
Torres was not eligible for resentencing relief. As Torres and the
Attorney General agree, the superior court’s order must be
reversed, and the cause remanded for further proceedings in light
of the amendments to former section 1170.95 made by Senate Bill
No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775), which,
effective January 1, 2022, expanded the reach of Senate Bill 1437
to include convictions for attempted murder and voluntary
manslaughter.
FACTUAL AND PROCEDURAL BACKGROUND
Torres and Rudy Serrano were charged in an amended
felony complaint, filed September 29, 2017, with the murder of
1 Statutory references are to this code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
2
Pedro Aguilar (§ 187, subd. (a)), with special allegations that
during the offense a principal had personally and intentionally
discharged a firearm causing Aguilar’s death (§ 12022.53,
subds. (d) & (e)(1)) and the offense had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Torres was also charged with two counts of carrying an
unregistered, loaded handgun (§ 25850, subd. (a)), with the
special allegation both offenses were committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(A)).
According to interviews of Torres, Serrano and several
witnesses detailed in a pre-plea probation report (described here
for context only), Serrano, Aguilar and several others were
drinking together on September 24, 2016 when Serrano and
Aguilar began to argue over a bottle of alcohol. Serrano
contacted Torres by telephone and said he needed help from some
“homeboys.” Torres arrived a short time later with a woman
(later identified as “Uneek”). The woman, who may have
obtained a gun from Torres, said she was “down for the
neighborhood” and shot Aguilar once in the chest. Aguilar died
from the wound several days later.
On March 22, 2018 the court granted the People’s motion to
amend the felony complaint to add a count for voluntary
manslaughter. Pursuant to a negotiated agreement, Torres
pleaded no contest to that count and admitted the related
criminal street gang allegation.3 The court found a factual basis
for the plea. On May 3, 2018 Torres was sentenced to a state
prison term of 16 years (the middle term of six years for
voluntary manslaughter plus 10 years for the criminal street
3 Serrano also pleaded no contest to voluntary manslaughter
and admitted a related firearm enhancement (§ 12022.5).
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gang enhancement). The original three counts in the amended
felony complaint were dismissed.
On September 13, 2021 Torres, representing himself, filed a
petition for resentencing pursuant to former section 1170.95.
Torres checked boxes on the printed form petition stating a
complaint, information or indictment had been filed against him
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine, he had pleaded guilty or no contest to first or second
degree murder because he believed he could be convicted of first
or second degree murder at trial pursuant to the felony-murder
rule or the natural and probable consequences doctrine, and he
could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189 by Senate
Bill 1437. Torres asked that counsel be appointed to represent
him during the resentencing process.
The superior court summarily denied the petition on
Septem ber 20, 2021, explaining, “Defendants convicted of
voluntary manslaughter are not eligible to file a petition seeking
relief pursuant to [former] section 1170.95 because such relief is
limited to persons convicted of murder.”
Torres filed a timely notice of appeal.
DISCUSSION
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
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
4
11 Cal.5th 952, 957.) It also authorized, through a new provision
(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
and be resentenced on any remaining counts if he or she could
not have been convicted of murder because of Senate Bill 1437’s
changes to the definition of the crime. (See Lewis, at p. 957;
Gentile, at p. 843.)
By its express terms, former section 1170.95 as enacted by
Senate Bill 1437 did not authorize a petition to vacate a
conviction for any offense other than murder. As amended
effective January 1, 2022 by Senate Bill 775, however, former
section 1170.95, subdivision (a), provided, “A person convicted of
felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts.” 4
Under former section 1170.95 as amended by Senate
Bill 775, a petitioner convicted of voluntary manslaughter is
entitled to be resentenced if he or she was charged under a theory
that would have allowed the prosecution to proceed under a
theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice was
4 Senate Bill 775 was signed by the Governor on October 5,
2021, 15 days after the superior court denied Torres’s petition for
resentencing.
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imputed to the person based solely on that person’s participation
in a crime (former § 1170.95, subd. (a)(1)); the conviction followed
a trial, or a plea in lieu of trial, at which the petitioner could have
been convicted of murder (former § 1170.95, subd. (a)(2)); and the
petitioner could not now be convicted of murder because of
Senate Bill 1437’s changes to sections 188 and 189 (former
§ 1170.95, subd. (a)(3)).5
Because the sole ground on which his petition for
resentencing was denied has been resolved in his favor by Senate
Bill 775, Torres contends the order denying the petition should be
reversed and the matter remanded for further proceedings to
determine whether he has made a prima facie case of eligibility
for relief pursuant to former section 1170.95, subdivision (c). The
Attorney General agrees with Torres, observing, “[T]he record
presently before this Court does not contain evidence showing as
a matter of law that appellant admitted to a factual basis
establishing that he personally acted with malice, or to any facts
that conclusively establish liability under a felony murder theory.
Accordingly, the record does not show that appellant is ineligible
for relief as a matter of law.”
We agree with the parties, reverse the order denying
Torres’s petition and remand for further proceedings in
5 Former section 1170.95, subdivision (d), clarified that, once
a prima facie case of eligibility for resentencing relief has been
made by the petitioner, at the evidentiary hearing to determine
whether relief should be granted, “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.”
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accordance with section 1172.6. (See People v. Basler (2022)
80 Cal.App.5th 46, 56 [Senate Bill 775’s revisions to
section 1170.95 apply retroactively to petitioners whose cases are
not yet final]; People v. Porter (2022) 73 Cal.App.5th 644, 652
[same].)
DISPOSITION
The order denying Torres’s petition for resentencing is
reversed, and the cause remanded with directions to appoint
counsel for Torres and to reconsider Torres’s eligibility for relief
pursuant to section 1172.6, subdivision (c).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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