People v. Torres CA4/3

Opinion

Filed 9/10/26 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G065181 v. (Super. Ct. No. 97NF3169)

CHRISTIAN GUILLERMO OPINION TORRES,

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Andre Manssourian, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General, A. Natasha Cortina and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent. In 2000, a jury convicted defendant Christian Guillermo Torres of first degree murder. In 2020, Torres filed a petition for resentencing under Penal Code former section 1170.95.1 Following an evidentiary hearing, the trial court denied the petition, finding Torres “acted as an aider and abettor with the specific intent to kill in the commission of the murder of Jose Marin on October 24, 1997.” On appeal, Torres contends the evidence was insufficient to support a conviction for aiding and abetting murder. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND I. THE ORIGINAL TRIAL PROCEEDINGS In a 1998 information, Torres was charged with the murder of Marin on or about October 24, 1997. The information also alleged Torres was vicariously armed with a firearm and the offense was committed for the benefit of the Jeffrey Street gang. (§§ 12022, subd. (a)(1), 186.22, subd. (b)(1).) The case proceeded to a jury trial. Among other things, evidence at trial showed the following: Torres was a member of the Jeffrey Street gang. On October 24, 1997, Torres drove two other people into territory that was claimed by a rival gang called Boyz from the Hood.2 Torres drove slowly down the middle of the 1 “Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text.” (People v. Saavedra (2023) 96 Cal.App.5th 444, 446, fn. 1; see Stats. 2022, ch. 58, § 10.) For ease of reference, this opinion refers to the current Penal Code section. All undesignated statutory references are to the Penal Code.

2 The name of this gang is inconsistently spelled in the record as “Boyz” or “Boys.” Torres’s opening brief on appeal uses the spelling “Boyz,” which is the spelling used in this opinion.

2 street before stopping by the area where Marin was walking, and one of the passengers got out of the car and moved toward Marin. There was one gunshot followed by another gunshot several seconds later. Marin was shot twice. He died from a gunshot wound to his head that was consistent with the end of the barrel being in contact with his skin, and he also had been shot in the back upper portion of his leg. A shell casing was found more than 40 feet from a pool of blood where Marin had been. Marin was not a member of the Boyz from the Hood gang; he was a member of a different gang called Jungle City. One witness said that, after hearing the gunshots, he saw one person standing by the passenger side door of the car and another man running to the car. The witness said the man running to the car was wearing white gloves.3 A different witness told a police officer, Charles Sullivan, she had heard arguing followed by two gunshots, but at trial, she denied hearing anything prior to the first gunshot. After the shooter returned to the car, Torres drove quickly away, but he was followed for some time by a security guard who was able to determine the license plate of the car. The jury found Torres guilty of first degree murder and found the two enhancement allegations true. The trial court sentenced Torres to 25 years to life imprisonment, plus three years. Torres appealed, and a panel of this court affirmed the judgment. (People v. Torres (Oct. 28, 2002, G028608) [nonpub. opn.].)

3 Another witness also saw a person getting into the car wearing gloves.

3 II. THE SECTION 1172.6 PETITION PROCEEDINGS In October 2020, Torres filed a petition for resentencing under section 1172.6. The district attorney conceded Torres had made a prima facie showing but asserted Torres was ineligible for relief. In April 2023, the trial court held an evidentiary hearing on the petition. The district attorney relied on the record from the trial and did not call any new witnesses. Torres called to testify Sullivan, who was one of the investigating officers and had testified at the original trial, including as a gang expert. Among other things, Sullivan testified regarding a hypothetical posed to him by Torres’s counsel that was similar to the facts here. He opined no hit up occurred prior to the shooting.4 Sullivan testified that the gang members went into the rival territory to kill a Boyz from the Hood member and there was no need for a hit up because, if gang members are in a rival gang’s territory and they see a gang member, they will assume he is from that rival gang.5 Sullivan also testified that because it is dangerous for a group of gang members to enter the territory of a rival gang, at least one of them would be carrying a gun, and everyone in the car would know there is a gun. Sullivan explained that the gang member with the gun would inform the other gang members about the gun because, if something were to happen to him, the other gang members would know about the gun and potentially be able to use it. Sullivan also said that, at the time of the shooting, the Jeffrey 4 Sullivan said a hit up occurs when a gang member asks another gang member where that gang member is from, and hit ups can lead to violence.

5 Sullivan said Marin had the appearance of a gang member based on how he was dressed.

4 Street gang was very brazen and violent, the Jeffrey Street and Boyz from the Hood gangs had been “feuding for years,” and there had “been murders all over the place involving these two.” Torres also called his own gang expert, Adam Mortera, to testify. When given the same hypothetical set of facts that had earlier been given to Sullivan, Mortera opined that a hit up had occurred before the shooting. One of Torres’s arguments at the evidentiary hearing was that, after Marin was hit up and identified himself as belonging to Jungle City, not Boyz from the Hood, the shooter acted on his own in deciding to kill a member of a gang other than Boyz from the Hood. Following the evidentiary hearing, the trial court denied Torres’s petition. It found beyond a reasonable doubt that Torres “acted as an aider and abettor with the specific intent to kill in the commission of the murder of Jose Marin on October 24, 1997.” Torres appeals the denial of his section 1172.6 petition. DISCUSSION Under section 1172.6, subdivision (a), “[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 . . . 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 certain conditions apply, including that “[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (Id., subd. (a)(3).) “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 5 doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) “[A] defendant may still be liable for murder as a direct aider and abettor because a direct aider and abettor must possess malice aforethought.” (People v. Lopez (2024) 99 Cal.App.5th 1242, 1248.) “Malice may be express or implied. [Citation.] ‘Malice is express when a defendant intends to kill . . . .’ [Citation.] ‘“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” [Citations.] “‘[U]nder direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with ‘knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in achieving those unlawful ends.”’”’” (People v. Diaz (2026) 118 Cal.App.5th 545, 557.) We review the denial of a “section 1172.6 petition, following an evidentiary hearing, for substantial evidence.” (People v. Emanuel (2025) 17 Cal.5th 867, 885.) “Under this standard, we review the record ‘“‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”’” (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) “‘“We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” [Citation.] A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no 6 hypothesis whatever is there sufficient substantial evidence to support’” the [fact finder]’s verdict.’” (People v. Davis (2024) 107 Cal.App.5th 500, 510.) “‘“Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.”’” (Ibid.) Here, substantial evidence supports the trial court’s determination that Torres is liable for murder under the theory he was a direct aider and abettor who acted with express malice. Torres does not dispute that he drove two other members of his gang into territory claimed by Boyz from the Hood, a rival gang. Evidence further supports that Torres drove the car slowly down the street until they saw Marin6; the shooter, who was wearing gloves,7 exited the vehicle, initially shot Marin from some distance away and, several seconds later, fired a close range gunshot at Marin’s head; and the shooter then ran back to the car, and Torres drove them quickly away. The trial court could reasonably conclude beyond a reasonable doubt that Torres aided and abetted the murder by driving the shooter slowly through rival gang territory with the knowledge and intent the shooter would kill a perceived rival gang member.

6 At the original trial, in response to a question about a hypothetical, Sullivan testified that the vehicle with the shooter driving slowly behind the intended target showed that they were looking for a Boyz from the Hood member to kill. At the evidentiary hearing, Sullivan agreed that when one gang is “hunting” in a rival gang’s territory it is common to drive slowly through the rival gang neighborhood.

7 The use of gloves supports an inference that the shooter was attempting to avoid leaving fingerprints on the gun. Sullivan noted the presence of the gloves worn by the shooter would indicate he was prepared to shoot.

7 Torres concedes that, “taking the evidence in light of the order denying [his] petition, the group went to Boyz territory to do a shooting of a rival Boyz member.” But he argues he had no intention to shoot or kill a member of a different gang. Torres argues, “after seeing Marin, one of [Torres’s] passengers got out of the car, got into a verbal argument with Marin, and shot him twice.” According to Torres, “[t]he only evidence was that [he] waited in the car when his passenger confronted Marin, an unintended and unanticipated target, and killed him after a ‘hit up.’” Torres further asserts, “[t]here is no substantial evidence that [he] was aware of who Marin was or knew or even could have known that the shooter would shoot an individual who was not a Boyz member.” Thus, Torres argues the trial court’s finding is based on a disguised natural and probable consequences theory and he should not be liable for murder because the shooter independently made the decision to kill someone who was not an intended target—i.e., someone who was not a member of the Boyz from the Hood gang. Torres’s argument is unavailing, particularly given the substantial evidence standard of review. Torres’s argument presumes the shooter engaged in a hit up with Marin, learned that Marin belonged to a gang other than Boyz from the Hood, and then independently decided to kill Marin anyway. But there was conflicting evidence on this. Notably, the two experts at the evidentiary hearing disagreed as to whether a hit up occurred. Although there was some evidence in the record that there was arguing and yelling,8 the record does not contain testimony from a percipient witness that 8 At the original trial, Sullivan testified a witness had told him she heard arguing followed by two gunshots. At the evidentiary hearing, Sullivan said that witness had told him that she heard yelling as part of the argument that she heard.

8 Marin was asked to and did in fact identify his gang. Moreover, Sullivan explained a hit up would have been unnecessary because gang members who are in a rival gang’s territory will assume any gang member in that territory is from that rival gang. The trial court could reasonably find there was no hit up during which Marin identified himself as a member of the Jungle City gang, and Torres and the shooter intended to kill Marin because they perceived him to be a member of Boyz from the Hood. Additionally, even if Marin was killed because he was mistakenly thought to be a Boyz from the Hood gang member, that does not mean Torres had no intent to kill. (See People v. Williams (1997) 16 Cal.4th 635, 684 [“when a defendant intends to kill one particular person, but kills someone else mistakenly believing the person killed to be the intended victim, the defendant has the requisite intent for first degree murder”]; People v. Allen (2023) 97 Cal.App.5th 389, 396 [“‘the “intent to kill need not be directed at a specific person”’”].)9 Torres also asserts an “expert’s testimony cannot serve as the sole evidence of guilt” and, other than Sullivan’s testimony, “there was no substantial evidence that [Torres] knew the shooter had a gun and intended to use it on anyone found in the Boyz territory.” Although Sullivan’s testimony supports the trial court’s finding, it was not the only evidence that does so. As noted above, Torres concedes that, viewed most favorably to the trial court’s ruling, the evidence shows Torres and his fellow gang members “went to Boyz territory to do a shooting of a rival Boyz member.” (Italics 9 Torres argues “this was not a transferred intent prosecution” because it is not a situation where the shooter attempted to kill a member of Boyz from the Hood but hit an innocent bystander instead. The theory of liability here is more aptly described as one of mistaken identity—i.e., the shooter and Torres intended to kill Marin, who they perceived to be a member of Boyz from the Hood but was actually a member of Jungle City.

9 added.) Since a shooting obviously would require a gun, this necessarily means Torres knew at least one of them had a gun. The evidence also supports that Torres slowly drove his group down the street in territory claimed by a rival gang until they came upon Marin, at which time the shooter, who was armed with a gun and wearing gloves, exited the vehicle and shot Marin. Given all this evidence, the trial court could reasonably conclude Torres knew the shooter had a gun. Torres contends “the facts in Reyes are identical to those here.” That case is distinguishable. In Reyes, the defendant and other members of his gang rode “their bicycles to an area on the edge of territory belonging to a rival gang” after one of the other gang members had shown the group a gun a few hours earlier. (Reyes, supra, 14 Cal.5th at p. 985.) The group chased after a car and a gunshot was fired that killed the driver. (Ibid.) Later that day, the defendant, who was then in possession of the murder weapon, and others assaulted someone else. (Ibid.) In charging Reyes for the death of the driver, the prosecutor argued Reyes was liable for murder because, although someone else in Reyes’s group fired the fatal shot, “Reyes aided and abetted the crime of disturbing the peace or . . . he conspired with Lopez to commit either disturbing the peace or assault, and that murder was a natural and probable consequence of one of those target offenses,” or alternatively, “Reyes directly aided and abetted the murder by ‘backing up fellow gang members’ during the killing.” (Ibid.) The jury convicted Reyes of second degree murder. (Id. at p. 986.) When the defendant later sought resentencing, the trial court “denied the petition, finding that [the defendant] was guilty beyond a reasonable doubt of second degree murder” and noting it was “‘guided by the principles that are in [CALCRIM No. 520], specifically implied malice.’” (Id. at pp. 986–987.)

10 On appeal, the California Supreme Court concluded there was no substantial evidence supporting liability for second degree murder under a direct perpetrator theory, and to the extent the trial court relied on a direct aiding and abetting theory, it “misapprehended what is required as a matter of law to prove aiding and abetting implied malice murder.” (Reyes, supra, 14 Cal.5th at pp. 988–992.) As to a direct perpetrator theory, our Supreme Court concluded “it cannot be said that Reyes committed an act that ‘proximately caused’ [the victim’s] death,” and the evidence was also insufficient to support a conclusion that the defendant’s act carried a high degree of probability of death. (Id. at pp. 988–990.) As to a theory of directly aiding and abetting implied malice murder, our Supreme Court noted “the trial court did not appear to recognize that implied malice murder requires, among other elements, proof of the aider and abettor’s knowledge and intent with regard to the direct perpetrator’s life endangering act,” and “assuming the life- endangering act was the shooting, the trial court should have asked whether Reyes knew that Lopez intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life.” (Id. at pp. 991–992.) Thus, our Supreme Court concluded the trial court’s “decision was based on an error of law insofar as the court sustained Reyes’s murder conviction on a direct aiding and abetting theory.” (Id. at p. 992.) Although it determined remand was appropriate, it “express[ed] no view on the merits of Reyes’s resentencing petition under a proper application of the elements of implied malice murder on a direct aiding and abetting theory.” (Ibid.) Reyes does not require reversal here for multiple reasons. As an initial matter, Reyes discussed implied malice murder (Reyes, supra, 14 Cal.5th at pp. 984, 987), but the trial court here found Torres had express 11 malice. The case here also does not involve a direct perpetrator theory. Moreover, although Reyes discussed the theory for direct aiding and abetting implied malice murder, it concluded the trial court made a legal error and ultimately “express[ed] no view on the merits of Reyes’s resentencing petition under a proper application of the elements of implied malice murder on a direct aiding and abetting theory.” (Id. at p. 992.) In any event, the facts here are not similar to those in Reyes. As discussed, evidence here supports that Torres drove slowly through the rival gang’s territory with two other members of his gang, with the intention to find and kill a member of a rival gang. One of Torres’s passengers—the shooter—was wearing gloves and, once the group spotted the victim and Torres stopped the car, the shooter emerged from the car and shot the victim. The evidence is sufficient to show Torres knew his passenger was armed and that Torres was guilty under a direct aiding and abetting theory. DISPOSITION The postjudgment order denying Torres’s petition for resentencing is affirmed.

GOODING, J.

WE CONCUR:

SANCHEZ, ACTING P. J.

SCOTT, J.