People v. Torres

Filed 3/26/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B296179

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA189759)

v.

ARTHUR TORRES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Bruce F. Marrs, Judge. Reversed and

remanded.

Joanna Rehm, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,

Chief Assistant Attorney General, Susan Sullivan Pithey,

Acting Senior Assistant Attorney General, Amanda V.

Lopez, Deputy Attorney General, Stephanie A. Miyoshi,

Deputy Attorney General, for Plaintiff and Respondent.

_______________________

In 2001, defendant and appellant Arthur Torres was

convicted of two counts of first degree murder (Pen. Code,

§ 187, subd. (a) [counts 11 & 12])1 under a felony murder

theory of liability, along with numerous other crimes

committed over the course of single day.2 As to counts 11

1 All further statutory references are to the Penal Code

unless otherwise indicated.

2 Torres’s crime spree also resulted in convictions for a

third count of murder (§ 187, subd. (a) [count 18]), possession

of a firearm by a felon (§ 12021, subd. (a)(1) [count 1]),

assault with a firearm (§ 245, subd. (a)(2) [count 2]), two

counts of second degree robbery (§ 211 [counts 3 & 5]),

attempted carjacking (§§ 215, subd. (a), 664 [count 6]), four

counts of attempted second degree robbery (§§ 211, 664

[counts 7, 8, 9, & 10]), carjacking (§ 215 [count 13]), simple

kidnapping (§ 207, subd. (a) [count 14]), kidnapping for

carjacking (§ 209.5, subd. (a) [count 15]), and torture (§ 206

[count 17]). As to count 18, the jury found true the special

circumstances that the murder was committed during a

kidnapping (§ 190.2, subd. (a)(17)(B)) and that there were

multiple murders (§ 190.2, subd. (a)(3)). The jury found true

the allegations that Torres personally used a firearm as to

counts 2 (§ 12022.5, subd. (a)(1)) and 3 (§ 12022.53, subd.

(b)).

Torres does not challenge his murder conviction in

count 18 in this appeal. Torres avers that he filed a petition

for resentencing with respect to count 18, which the trial

court failed to rule on. He is currently challenging the

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and 12, the jury found true the special circumstance that the

murders were committed during the commission of a robbery

(§ 190.2, subd. (a)(17)). The jury also found true multiple

murder special circumstance allegations (§ 190.2, subd.

(a)(3)), as to both counts.

In 2019, Torres petitioned for resentencing pursuant to

section 1170.95 and newly enacted Senate Bill No. 1437

(Senate Bill 1437), which “‘amend[s] the felony murder rule

and the natural and probable consequences doctrine, as it

relates to murder, 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).)” (People v.

Verdugo (2020) 44 Cal.App.5th 320, 325, review granted

Mar. 18, 2020, S260493 (Verdugo).)

The trial court summarily denied the petition in a

written memorandum of decision that stated: “The petition

is summarily denied because the petitioner is not entitled to

relief as a matter of law, for the following reason: [¶] The

defendant was convicted of murder in counts 11 and 12, and

the special circumstance allegations of murder in the

commission of a robbery pursuant to Penal Code § 190.2(a)17

were found to be true. The defendant, thus, acted as a major

participant in the commission of the designated crimes and

conviction in that count in a writ of habeas corpus in federal

court. (Torres v. Madden (9th Cir.) No. 19-55018.)

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acted with reckless indifference to human life [Penal Code

§ 189, subd. (e)(3)].”

Torres appeals the trial court’s order. He contends

that the trial court exceeded its authority by reviewing the

record of conviction and summarily denying his section

1170.95 petition prior to appointment of counsel and

briefing.3 He further contends that, even if the trial court

were permitted to look beyond his petition at the eligibility

stage, he is not ineligible for relief on the basis of the jury’s

robbery murder special circumstances true findings.

We disagree with Torres’s broad assertion that a trial

court may not summarily deny a petition on the basis of the

record of conviction prior to appointment of counsel and

briefing, but nevertheless reverse the trial court’s order in

this instance. The trial court here relied exclusively on the

jury’s 2001 special circumstances findings, which findings

alone are not sufficient to preclude relief in the wake of

People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.

Clark (2016) 63 Cal.4th 522 (Clark). We remand the matter

to allow the trial court to determine whether Torres has

made a prima facie showing that he falls within the

provisions of section 1170.95. In making this determination,

3 We grant Torres’s request for judicial notice, filed on

December 23, 2019, of a Judicial Council letter dated August

28, 2018, addressed to the Honorable Nancy Skinner

concerning Senate Bill 1437, and a Judicial Council letter

dated September 13, 2018, addressed to former Governor

Edmund G. Brown, Jr., also concerning Senate Bill 1437,

which were attached to Torres’s request as Exhibits 1 and 2.

4

the trial court may consider “readily available portions of the

record of conviction. ” (Verdugo, supra, 44 Cal.App.5th at

p. 323.) If Torres is potentially eligible for resentencing

pursuant to the statute, the trial court must appoint counsel

and order briefing.

FACTS

The facts of Torres’s crime spree, carried out with his

co-defendant Nicholas Rodriguez, as recited in our

unpublished opinion, People v. Torres (Mar. 17, 2003,

B152866) [nonpub. opn.] at page *1, were as follows: “First,

at a La Puente car wash, Torres pointed a handgun at Paul

Nieto (Nieto), demanded Nieto’s money, and searched Nieto’s

pockets for additional items. Torres then passed the gun to

Rodriguez and took some personal items from Nieto’s car.

Torres attempted to start the car, but failed because Nieto

had activated the car’s ‘kill switch.’ Torres struck Nieto in

the head. Nieto heard someone call, ‘Waste him. Waste him,’

and Nieto fled.

“Next, Torres and Rodriguez approached four young

men walking down a [sic] La Puente street. Brothers

Tommy and Christopher Garnica and their friends Sergio

Salcedo and Juan Gonzalez were on foot when Torres’s car

stopped alongside them. Rodriguez exited the car, pointed a

gun at the men, and demanded methamphetamine.

Rodriguez waved the gun, and as he did so, the clip fell from

the gun. As Christopher Garnica and Sergio Salcedo fled,

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Rodriguez retrieved and reinserted the clip and shot both

Tommy Garnica and Juan Gonzalez to death. [Counts 11 &

12]

“Later that evening, Torres and Rodriguez—now on

foot—flagged down a car in which Humberto Salas (Salas)

and Isabel Morales (Morales) were riding. When Salas

exited the car to talk with Torres and Rodriguez, the two

men severely beat Salas, smashed his head against the car,

and kicked him. Torres and Rodriguez then put Salas into

the back seat of the car and ordered Morales into the driver’s

seat. Torres sat in the front passenger seat of the car and

told Morales to drive. While Morales drove, in the back seat

Rodriguez continued to beat Salas and gouged out his eyes.

[Count 18] Torres displayed one of the eyeballs to Morales

before tossing it out the window. At a canyon area, Torres

and Rodriguez dumped Salas’s body. Returning to the car,

the men forced Morales to drive them back toward the area

where the encounter had begun. On the way, Torres and

Rodriguez saw police officers and fled from the car.”

SENATE BILL 1437

“Senate Bill 1437 . . . amend[s] section 188, which

defines malice, and section 189, which defines the degrees of

murder, and as now amended, addresses felony murder

liability.” (People v. Martinez (2019) 31 Cal.App.5th 719, 723

(Martinez); accord, Verdugo, supra, at p. 325.) New section

188, subdivision (a)(3), provides, “Except as stated in

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subdivision (e) of Section 189, in order to be convicted of

murder, a principal in a crime shall act with malice

aforethought. Malice shall not be imputed to a person based

solely on his or her participation in a crime.”

Prior to the enactment of Senate Bill 1437, murder

committed in the perpetration of or attempt to perpetrate

specified felonies, including robbery, was first degree

murder. (Former § 189; People v. Powell (2018) 5 Cal.5th

921, 942 [““‘Under the felony-murder doctrine, when the

defendant or an accomplice kills someone during the

commission, or attempted commission, of an inherently

dangerous felony, the defendant is liable for either first or

second degree murder, depending on the felony

committed.’””].) Senate Bill 1437 also added section 189,

subdivision (e), which provides that “[a] participant in the

perpetration or attempted perpetration of a felony listed in

subdivision (a) in which a death occurs is liable for murder

only if one of the following is proven: [¶] (1) The person was

the actual killer. [¶] (2) The person was not the actual

killer, but, with the intent to kill, aided, abetted, counseled,

commanded, induced, solicited, requested, or assisted the

actual killer in the commission of murder in the first degree.

[¶] (3) The person was a major participant in the underlying

felony and acted with reckless indifference to human life, as

described in subdivision (d) of Section 190.2.”

The legislation also added section 1170.95, which

provides a procedure for people convicted of murder to

petition the trial court for retroactive relief if the changes in

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the law affect their previously sustained convictions. (Sen.

Bill 1437 (2017–2018 Reg. Sess.) § 4.) Section 1170.95,

subdivision (a), provides, “A person convicted of felony

murder or murder under a natural and probable

consequences theory may file a petition with the court that

sentenced the petitioner to have the petitioner’s murder

conviction vacated and to be resentenced on any remaining

counts when all of the following conditions apply: [¶] (1) A

complaint, information, or indictment was filed against the

petitioner that allowed the prosecution to proceed under a

theory of felony murder or murder under the natural and

probable consequences doctrine. [¶] (2) The petitioner was

convicted of first degree or second degree murder following a

trial . . . . [¶] (3) The petitioner could not be convicted of

first or second degree murder because of changes to Section

188 or 189 made effective January 1, 2019.”

“[A] petition for relief must include: ‘(A) A declaration

by the petitioner that he or she is eligible for relief under

this section, based on all the requirements of subdivision (a).

[¶] (B) The superior court case number and year of the

petitioner’s conviction. [¶] (C) Whether the petitioner

requests the appointment of counsel.’ (§ 1170.95, subd.

(b)(1).) . . .

“If any of the required information is missing and

cannot be readily ascertained by the court, ‘the court may

deny the petition without prejudice to the filing of another

petition and advise the petitioner that the matter cannot be

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considered without the missing information.’ (§ 1170.95,

subd. (b)(2).)

“If the petition contains all required information,

section 1170.95, subdivision (c), prescribes a two-step process

for the court to determine if an order to show cause should

issue: ‘The court shall review the petition and determine if

the petitioner has made a prima facie showing that the

petitioner falls within the provisions of this section. If the

petitioner has requested counsel, the court shall appoint

counsel to represent the petitioner. The prosecutor shall file

and serve a response . . . and the petitioner may file and

serve a reply . . . . If the petitioner makes a prima facie

showing that he or she is entitled to relief, the court shall

issue an order to show cause.’

“Once the order to show cause issues, the court must

hold a hearing to determine whether to vacate the murder

conviction and to recall the sentence and resentence the

petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).)

If the prosecutor does not stipulate to vacating the conviction

and resentencing the petitioner (§ 1170.95, subd. (d)(2)), the

People have the opportunity to present new and additional

evidence at the hearing to demonstrate the petitioner is not

entitled to resentencing. (§ 1170.95, subd. (d)(3).) The

petitioner also has the opportunity to present new or

additional evidence in support of the resentencing request.

(Ibid.)” (Verdugo, supra, 44 Cal.App.5th at p. 327,

fn. omitted.)

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“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. If the prosecution

fails to sustain its burden of proof, the prior conviction, and

any allegations and enhancements attached to the

conviction, shall be vacated and the petitioner shall be

resentenced on the remaining charges.” (§ 1170.95, subd.

(d)(3)).

“If there was a prior finding by a court or jury that the

petitioner did not act with reckless indifference to human

life or was not a major participant in the felony, the court

shall vacate the petitioner’s conviction and resentence the

petitioner.” (§ 1170.95, subd. (d)(2).)

DISCUSSION

Torres contends that, prior to appointment of counsel

and briefing, the trial court’s review of a section 1170.95

petition is for facial sufficiency only, and that it is not

permitted to consider materials outside of the petition—in

this case, the record of conviction—at the eligibility stage.

He argues that, having submitted a facially sufficient

petition in which he requested counsel, he was entitled to

appointment of counsel and briefing. Alternatively, he

asserts that even if the trial court were permitted to consider

the jury’s special circumstance findings at this stage, it erred

in finding him ineligible for relief, such that he was entitled

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to appointment of counsel and briefing. We disagree with

Torres’s interpretation of section 1170.95’s petitioning

procedure, but reverse and remand because the trial court

erred in ruling Torres ineligible as a matter of law solely

based on the jury’s true findings on the robbery murder

special circumstances, made in 2001.

Section 1170.95’s Petitioning Procedure

In Verdugo, supra, 44 Cal.App.5th 320, our colleagues

in Division Seven of the Second District of the Court of

Appeal clarified section 1170.95’s petitioning process. The

Verdugo court explained that subdivisions (b) and (c) of the

statute require the trial court to make three separate

determinations. (Verdugo, supra, 44 Cal.App.5th at pp. 327–

328.) Here, we are solely concerned with the inquiry

proscribed by subdivision (b), and the first of the two

inquiries set forth in subdivision (c)—i.e., whether the

petitioner has made a prima facie case that he falls within

section 1170.95’s provisions. We agree with the Verdugo

court’s well-reasoned analysis and elucidation of these two

steps, and therefore summarize them only briefly here:

Under subdivision (b)(2), the trial court determines if

the petition is facially sufficient. (Verdugo, supra, 44

Cal.App.5th at pp. 327–328.) The trial court verifies that the

petition contains the basic information required under

subdivision (b)(1), and supplies any missing information that

can be “readily ascertained” (§ 1170.95, subd. (b)(2)).

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(Verdugo, supra, at p. 328.) The reference to “readily

ascertained” information indicates the legislature’s intent

that the trial court consider reliable, accessible

information—specifically the record of conviction. (Id. at

pp. 329–330.) The trial court may deny the petition without

prejudice if the petition is not facially sufficient. (Id. at

p. 328.)

If a petition is facially sufficient, then, under section

1170.95, subdivision (c), the trial court next determines

whether the petitioner has made “a prima facie showing that

the petitioner falls within the provisions of this section”.

The Verdugo court described this inquiry as “a preliminary

review of statutory eligibility for resentencing, a concept that

is a well-established part of the resentencing process under

Propositions 36 and 47.” (Verdugo, supra, 44 Cal.App.5th at

p. 329.) “The court’s role at this stage is simply to decide

whether the petitioner is ineligible for relief as a matter of

law, making all factual inferences in favor of the petitioner.”

(Ibid.) As in the subdivision (b)(2) inquiry, the trial court is

permitted to review information that is readily ascertained.

(Ibid.) Specifically, the Verdugo court held that the trial

court should review the record of conviction, and “must at

least examine the complaint, information or indictment filed

against the petitioner; the verdict form or factual basis

documentation for a negotiated plea; and the abstract of

judgment.” (Id. at pp. 329–330; accord, Lewis, supra, 43

Cal.App.5th at pp. 1138–1139 [superior court properly relied

on record of conviction showing he was convicted as direct

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aider and abettor in determining he was not eligible for

relief].) If the trial court determines that the petitioner is

not ineligible for relief as a matter of law, it must appoint

counsel, if requested, and order briefing. (Verdugo, supra, 44

Cal.App.5th at p. 330.)

Here, it is undisputed that Torres supplied all of the

information required under subdivision (b)(1) such that his

petition was facially sufficient. Torres declared he was

eligible for resentencing under all the requirements listed in

subdivision (a)(1); provided the case name and number; and

requested that counsel be appointed.

This leads us to two questions in connection with the

trial court’s preliminary review of statutory eligibility for

resentencing under subdivision (c). The first—whether the

trial court properly considered the jury’s robbery murder

special circumstance findings when determining whether

Torres made a prima facie showing that he fell within

section 1170.95’s provisions—is easily resolved. The jury’s

findings are clearly contained in the record of conviction,

and, as the Verdugo court stated, should be considered when

determining whether a defendant is ineligible for relief as a

matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 329–

330.) The trial court did not err in this respect, and was not

required to appoint counsel prior to considering the jury

findings in making its preliminary determination of Torres’s

statutory eligibility for relief.

The second question is whether the trial court erred in

ruling that Torres failed to make a prima facie showing that

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he could no longer be convicted of murder because of changes

to Section 189 made effective on January 1, 2019. More

specifically, we must determine whether the trial court was

correct when it ruled that the existence of the jury’s 2001

robbery murder special circumstance findings alone

established that Torres was “a major participant in the

underlying felony and acted with reckless indifference to

human life, as described in subdivision (d) of Section 190.2”

(§ 189, subd. (e)(3)), as a matter of law, thereby barring him

from relief. We conclude that, based on the record before us,

the trial court erred, as the jury’s findings alone do not

render Torres ineligible for relief.

As amended by Senate Bill 1437 and relevant here,

section 189, subdivision (e) provides “[a] participant in the

perpetration or attempted perpetration of a felony listed in

subdivision (a) [(in this case, robbery)] in which a death

occurs is liable for murder only if one of the following is

proven: [¶] (3) The person was a major participant in the

underlying felony and acted with reckless indifference to

human life, as described in subdivision (d) of Section 190.2.”

Section 190.2, subdivision (d), in turn, provides that “every

person, not the actual killer, who, with reckless indifference

to human life and as a major participant, aids, abets,

counsels, commands, induces, solicits, requests, or assists in

the commission of a felony enumerated in paragraph (17) of

subdivision (a) which results in the death of some person or

persons, and who is found guilty of murder in the first

degree therefor, shall be punished by death or imprisonment

14

in the state prison for life without the possibility of parole if

a special circumstance enumerated in paragraph (17) of

subdivision (a) has been found to be true under Section

190.4.” Section 190.2, subdivision (a)(17)(A) lists robbery in

violation of section 211 as a qualifying felony.

Although the jury’s special circumstances findings

rendered in 2001 indicate that the jury concluded Torres was

a “major participant” who acted with “reckless indifference

to human life” in the murders of Garnica and Gonzales,

those jury findings alone do not preclude Torres from

showing today that he could not be convicted of first or

second degree murder as redefined by Senate Bill 1437.

Torres argues, and we agree, that our Supreme Court’s

decisions, clarifying what it means for an aiding and

abetting defendant to be a “major participant” in an

underlying felony and to act with “reckless indifference to

human life,” construed section 190.2 in a significantly

different, and narrower manner than courts had previously

construed the statute. Both cases were decided over a

decade after the jury made its findings in Torres’s case.

Banks, supra, 61 Cal.4th 788, which elucidated the meaning

of “major participant,” was decided in 2015, and Clark,

supra, 63 Cal.4th 522, which addressed the meaning of

“reckless indifference to human life,” was decided in 2016.

Accordingly, in determining if Torres could be convicted

today of first-degree murder, we cannot simply defer to the

jury’s pre-Banks and Clark factual findings that Torres was

a major participant who acted with reckless indifference to

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human life as those terms were interpreted at the time. As

we stated in In re Miller (2017) 14 Cal.App.5th 960 (Miller),

“[a] [d]efendant’s claim that the evidence presented against

him failed to support [a] robbery-murder special

circumstance [finding made prior to Banks and Clark] . . . is

not a ‘routine’ claim of insufficient evidence.” (Id. at

pp. 979–980.) The “claim does not require resolution of

disputed facts; the facts are a given.” (Id. at p. 980.) The

question is whether they are legally sufficient in light of

Banks and Clark. (Ibid.)

By summarily denying Torres’s petition under section

1170.95 in the instant case, the trial court relied exclusively

on the jury’s special circumstances findings, treating those

findings as if they resolved key disputed facts, and gave no

alternative reason for ruling Torres was ineligible for

resentencing a matter of law. No court has affirmed the

special circumstances findings at issue post-Banks and

Clark.4 There is therefore a possibility that Torres was

4 Torres filed a petition for habeas corpus with this

court on September 14, 2017, in which he asserted that the

true findings on the robbery murder special circumstances

must be vacated because he was not a major participant who

acted with reckless indifference to human life under Banks,

supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522. We

denied the petition on the merits in an order filed on October

13, 2017. However, “the summary denial of a habeas corpus

petition does not establish law of the case and does not have

a res judicata effect in future proceedings.” (Gomez v.

Superior Court (2012) 54 Cal.4th 293, 305, fn. 6.)

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punished for conduct that is not prohibited by section 190.2

as currently understood, in violation of Torres’s

constitutional right to due process. (See Miller, supra, 14

Cal.App.5th 960, 977 [federal due process guarantees

required reversal where evidence was not legally sufficient

to support robbery murder special circumstance].) It would

be unjust to permit a court to deny a petitioner relief on the

basis of facts that the jury did not necessarily find true, and

which may not be sufficiently supported by the record. We

conclude that the trial court erred in ruling that the pre-

Banks and Clark robbery murder special circumstance

findings preclude Torres from relief as a matter of law. We

therefore reverse, and remand to the trial court to determine

whether, considering readily available portions record of

conviction, Torres is otherwise ineligible for relief as a

matter of law, or is entitled to appointment of counsel and

briefing.

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DISPOSITION

We remand the matter for the trial court to determine

whether Torres has made a prima facie showing that he falls

within the provisions of section 1170.95. If it finds that

Torres is potentially eligible for resentencing pursuant to

section 1170.95, the trial court must appoint counsel and

order briefing.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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