People v. Torres CA4/3

Filed 6/16/23 P. v. Torres CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061580
v. (Super. Ct. No. 93CF3269)
RICHARD MARTINEZ TORRES, OPI NION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Steven D. Bromberg, Judge. Reversed and remanded.
Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland,
Assistant Attorneys General, Arlene A. Sevidal, Lynne G. McGinnis, and Susan
Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Richard Martinez Torres appeals from an order denying his
petition for resentencing under Penal Code former section 1170.95 (now Pen. Code,
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§ 1172.6). In 1994, defendant pleaded guilty to one count of murder and one count of
attempted murder. He also admitted he personally used a firearm during the commission
of the offenses. The court sentenced defendant to state prison for a term of 27 years to
life. We affirmed the judgment with modifications to the sentence on appeal. (People v.
Torres (Dec. 18, 1995, G017512) [nonpub. opn.].)
In 2022, defendant filed a petition for resentencing. The court appointed
counsel for defendant, received briefing from the parties, and conducted a prima facie
hearing. After taking the matter under submission, the court summarily denied
defendant’s petition for resentencing.
On appeal, defendant contends the court erred by denying his petition
because the court engaged in improper fact finding by relying on defendant’s guilty plea.
He also argues the record does not conclusively establish he was precluded from relief.
For the reasons below, we agree with defendant’s latter contention. We accordingly
reverse the postjudgment order and remand for further proceedings.
FACTS
In 1994, defendant pleaded guilty to one count of murder and one count of
attempted murder. The factual basis for the guilty plea stated: “In Orange County, on
August 23, 1993, I unlawfully killed Debbie Louis[e] Gonzalez with malice aforethought
and attempted to kill [G.B.] with malice aforethought, personally using a firearm in both
instances.”
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Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
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In 2022, defendant filed a petition for resentencing. Using a preprinted
form, he checked the boxes stating: “1. A complaint, information, or indictment was filed
against me that 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 is imputed to a person based solely on that person’s participation in a
crime, or attempted murder under the natural and probable consequences doctrine.
[Citation.] [¶] 2. I was convicted of murder, attempted murder, or manslaughter
following a trial or I accepted a plea offer in lieu of a trial at which I could have been
convicted of murder or attempted murder. [Citation.] [¶] 3. I could not presently be
convicted of murder or attempted murder because of changes made to Penal Code §§ 188
and 189, effective January 1, 2019.” (Underscoring omitted.)
In July 2022, the court summarily denied defendant’s petition. In its
statement of decision, the court emphasized it “ha[d] not read, considered, or reviewed
any document except for understanding the procedural history of [the] case.” The court
added that it had “not undertaken a factual review.” Relying on the basis for defendant’s
guilty plea, the court concluded: “The evidence is sufficient that [defendant] was the
actual killer as well as the attempted killer. A prima facie [case] has not been shown.”
Defendant timely filed a notice of appeal.
DISCUSSION
Defendant contends the court erred by denying his petition for resentencing
because the court’s consideration of his guilty plea required improper fact finding. He
also argues the record did not conclusively establish he was precluded from relief. We
agree with his latter contention.
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) to “amend the felony
murder rule and the natural and probable consequences doctrine, as it relates to murder,
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to ensure that murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It
accomplished this by amending sections 188 and 189 and adding section 1172.6, such
that persons convicted of felony murder or murder under a natural and probable
consequences theory could seek resentencing or to have the conviction vacated. (People
v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Effective January 1, 2022, the
Legislature amended section 1172.6 to expand resentencing eligibility to persons
convicted of attempted murder and manslaughter. (Stats. 2021, ch. 551, § 2.)
Senate Bill 1437 also created a procedure, codified in section 1172.6, by
which defendants could seek resentencing if their conduct did not constitute murder as
redefined by Senate Bill 1437. (Lewis, supra, 11 Cal.5th at p. 957.) The defendant first
must file a petition showing: (1) he was prosecuted for felony murder or murder under
the natural and probable consequences doctrine; (2) he was ultimately convicted of first
or second degree murder; and (3) he could not be convicted for murder today because of
how the Legislature has redefined the offense. (§ 1172.6, subd. (a)(1)-(3).) If the petition
is facially sufficient and the petitioner requests counsel, the trial court must appoint
counsel. (Id., subd. (b)(3).) The parties then brief the question of whether petitioner is
entitled to relief. (Id., subd. (c).) If the defendant makes a prima facie showing, the trial
court is required to issue an order to show cause. (Ibid.) If the parties do not stipulate the
defendant is entitled to relief, the court must conduct an evidentiary hearing. (Id., subd.
(d).)
In determining whether the petitioner has made a prima facie case for relief,
the trial court may rely on the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-
971.) The record of conviction includes the court’s own documents, including the
underlying facts as presented in an appellate opinion, the trial evidence, the jury
instructions, closing arguments of counsel, and any guilty pleas. (People v. Lopez (2022)
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78 Cal.App.5th 1, 13; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, overruled
on other grounds in Lewis, supra, 11 Cal.5th at pp. 961-962.) As our Supreme Court
explained, “The record of conviction will necessarily inform the trial court’s prima facie
inquiry . . . allowing the court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, at p. 971.)
Here, the first amended information alleges defendant “did willfully and
unlawfully and with malice aforethought murder” Debbie Louise Gonzalez and “did
willfully, unlawfully, and with malice aforethought, attempt to kill” G.B. The
information further alleged defendant personally used a firearm in the commission and
attempted commission of the above offenses. As the Attorney General concedes, the
language in the information was generic and did not limit the prosecution’s ability to
proceed under a theory of felony murder, murder under the natural and probable
consequences doctrine, imputed malice, or attempted murder under the natural and
probable consequences doctrine. (People v. Davenport (2021) 71 Cal.App.5th 476, 484
[information alleging murder was committed “‘“‘willfully, unlawfully, and with malice
aforethought’”’” does not limit prosecution’s ability to pursue felony murder or murder
based on natural and probable consequences doctrine].)
Based on the guilty plea, the Attorney General argues defendant
specifically admitted he killed one victim and attempted to kill another with malice
aforethought. As noted, ante, defendant’s plea admits he “unlawfully killed Debbie
Louis[e] Gonzalez with malice aforethought and attempted to kill [G.B.] with malice
aforethought, personally using a firearm in both instances.” Defendant essentially
admitted he was liable for murder and attempted murder according to the law existing at
the time of the plea. But the factual basis for the plea does not establish as a matter of
law that defendant committed the murder or attempted murder. Indeed, defendant offered
a theory under which his guilty plea was consistent with malice under a felony murder or
natural and probable consequences theory—he displayed or had a firearm but was never
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the one who fired it. The language regarding a specific intent to kill would not have
precluded the prosecution from proceeding on a natural and probable consequences
theory, which imputes the specific intent to kill in a murder prosecution. (See People v.
Prettyman (1996) 14 Cal.4th 248, 259-260.) Likewise, defendant’s admission to
personally using a firearm does not bar relief because, as both parties acknowledge, a
person can use a gun during the commission of a crime without ever firing it. The court
accordingly could not determine as a matter of law that defendant was ineligible for relief
under the statute based on his statement on the plea form. (People v. Flores (2022) 76
Cal.App.5th 974, 987 [defendant was not ineligible for resentencing as a matter of law
where neither information nor guilty plea specified or excluded any particular theory of
murder]; People v. Rivera (2021) 62 Cal.App.5th 217, 224 [“a defendant who entered a
plea to murder ‘with malice aforethought’ is not categorically incapable of making a
prima facie showing of eligibility for relief . . . because such a plea is not necessarily an
admission that the crime was committed with actual malice”]; People v. Enyon (2021) 68
Cal.App.5th 967, 970-971 [pleading guilty to premeditated first degree murder
committed during a robbery did not make the defendant ineligible for relief as a matter of
law].)
People v. Nguyen (2020) 53 Cal.App.5th 1154, which the Attorney General
cites, is distinguishable. In Nguyen, the court found a defendant who pleaded guilty to
second degree murder was ineligible for relief as a matter of law because “transcripts
from the preliminary and plea hearings demonstrate[d he] was convicted of second
degree murder as a direct aider and abettor” as that “was the only theory put forth by the
prosecutor . . . .” (Id. at p. 1166.) Similar facts do not exist here.
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DISPOSITION
The postjudgment order is reversed and the matter is remanded for further
proceedings.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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