Filed 7/11/24 P. v. Torres CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESSE TORRES,

 Defendant and Appellant.

 G062472

 (Super. Ct. No. 18HF1516)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Gary S. Paer, Judge. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J. 
2

Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * *

Jesse Torres appeals from a judgment of conviction for the 

murder of Noah Finnegan. (Pen. Code, § 187, subd. (a).)1 He contends the 

prosecutor committed reversible error by appealing to the jurors’ sympathy 

during closing argument. We disagree and affirm the judgment.

FACTS

One Halloween day, Torres was hanging out with C.B., who was 

his coworker and neighbor (the coworker), at the apartment complex where 

they lived in Mission Viejo. In the complex’s parking lot, they ran into 

another neighbor, C.D. The coworker, who knew C.D., introduced him to 

Torres. C.D. was throwing a party that night, and the coworker asked if he 

and Torres could come. C.D. said yes. 

Torres and the coworker left to buy alcohol and returned at 

7:30 p.m. to C.D.’s apartment. They sat down on his couch and started 

drinking. They had purchased a 1.75 liter bottle of whiskey; each drank 

about half the bottle over the span of 60 to 90 minutes. They also smoked 

marijuana. 

At the height of the party, anywhere from 30 to 50 people were in 

or around C.D.’s one-bedroom, one-bath apartment. Throughout the night, 

many partygoers drank beer and smoked marijuana and were at varying 

levels of intoxication. According to several partygoers, Torres appeared 

1 All further statutory references are to the Penal Code unless 

otherwise indicated.
3

drunk. Finnegan, then 19 years old, had been drinking beer, maybe three to 

four, and was “a little bit buzzed.” 

The coworker didn’t know anyone at the party other than C.D.

and Torres. C.D. and his other guests were younger than Torres and the 

coworker. Few people interacted with Torres at the party. 

Near midnight, Torres ran into M.F., then 18 years old, and one 

of her friends in the bathroom. The bathroom was separated in two, with the 

“sink [open to and thus] more in the bedroom” and the toilet behind a 

separate door. At the bathroom sink area, Torres saw M.F., who was feeling 

sick from drinking. He asked M.F.’s friend, “‘she looks pretty f-ed up 

[referring to M.F.], is everything fine?’” Torres began touching M.F.’s hair 

and placed his hand on her back. Because he kept touching her hair, the 

friend told him to stop: “‘[S]he’s fine, don’t touch her.’” 

About half an hour later, Torres ran into a girl who “was really 

intoxicated” and “passed out sleeping on the bed.” Torres commented to a 

partygoer, “‘she looks pretty f-ed up. I think it would be easy for me to get 

with that.’” 

When C.D. learned of Torres’s behavior, C.D. told the coworker

that Torres was “doing things that aren’t right” and the two of them had to 

go. The coworker called for Torres and the two walked outside the 

apartment. When the coworker told Torres they needed to leave the party, 

Torres punched him in the jaw. Torres said nothing. The coworker didn’t 

fight back; the punch “was pretty strong” and the coworker “got scared.”

The coworker returned to C.D.’s apartment and told him about 

the punch. C.D. gave him ice for his jaw and allowed him to stay at the 

party. 
4

Ten minutes later, C.D. peered outside the front door and saw 

Torres standing outside wearing different clothes. C.D. told Torres to go

home and, after watching Torres walk away, went back inside, and locked the 

apartment door. 

Torres later returned and kicked in the front door. He was 

standing outside, his hands in a defensive position as if ready for a fight. 

Eight to 10 people rushed outside toward Torres, causing him to back up. 

This group included C.D. and Finnegan. The group advanced and yelled, “We 

don’t want you here, go away!” Torres responded, “this is my town,” and 

appeared angry. After one person in the group backed Torres into a wall, 

Torres punched him. 

The group became more aggressive, advancing toward Torres, 

yelling at him, and backing him up toward the street. As the group 

advanced, Torres stated, “I will fight all ten of you.” Torres punched a second 

partygoer, and the two started fighting. Other people jumped in, some to also 

fight Torres and others “to pull it apart.” 

Torres’s brother and brother-in-law, both of whom lived with 

Torres, were at their apartment when they heard what sounded like kids 

running and yelling outside. The brother-in-law heard Torres scream for 

help. The brother-in-law ran outside to help Torres and saw him near the 

bushes being jumped by the group. The brother-in-law ran over to defend 

Torres, threw some punches, and pulled people off Torres until he was able to 

stand up. 

During the melee, Finnegan punched the brother-in-law in the 

head about five times and tackled Torres into the bushes. Within a minute, 

Torres stood up. Finnegan then walked over to C.D. C.D. saw Torres walk 

away but didn’t see where he had gone. 
5

The brother-in-law stopped fighting and joined C.D., Finnegan, 

and Torres’s brother, who started asking why Torres was being attacked. All 

participants were standing together talking calmly. About five minutes later, 

Torres returned, long knife in hand, ran toward Finnegan, and fatally 

stabbed him on the side of the neck. 

Torres immediately ran back toward his apartment. Torres’s 

brother yelled after him, “Why did you do that? Why? Why?” The brother 

approached the window of their apartment and called to his sister, who also 

lived there with her children, to get the children and exit out of the window. 

When the sister and children exited the front door, Torres appeared and told 

his brother to get inside because “someone is going to kill” the brother. The 

brother instead left with his sister and the children to stay with a neighbor. 

When the police arrived, Torres came out of his apartment, 

agitated and “in a rage,” yelling “I’m Jesse!” and obscenities. A search of 

Torres’s apartment uncovered a bloody eight-inch stainless steel knife in the 

kitchen. 

An amended information charged Torres with a single count of 

murder (§ 187, subd. (a)) and alleged that he personally used a deadly 

weapon during the murder (§ 12022, subd. (b)(1)) and that he previously

suffered a juvenile adjudication for a serious and violent offense (§§ 667, 

subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)). 

At trial, Torres’s brother testified that after the initial fight 

calmed down, Torres “just went inside” their apartment. When asked about 

their subsequent conversation with C.D. and Finnegan, the brother testified 

it was “civil” and “calm,” and the brother-in-law described it as a “calm 

conversation” with no verbal or physical fighting. Torres’s brother testified

that after Torres ran up to Finnegan but before he stabbed him, Torres and 
6

Finnegan were engaged in trash talking. But the brother-in-law testified 

Finnegan “was just standing there” when Torres returned. The brother-inlaw also identified the knife used to stab Finnegan as a kitchen knife from 

his and Torres’s apartment. 

Torres did not dispute he killed Finnegan; instead, he argued he 

committed manslaughter, not murder, because he acted out of heat of passion 

or imperfect self-defense or defense of others. Accordingly, the jury was 

instructed on, among other things, first degree murder; second degree 

murder; the effect of provocation on murder; and voluntary manslaughter,

both heat of passion and imperfect self-defense or imperfect defense of others. 

In closing and over defense objection, the prosecutor argued: “But 

I’m going to ask you, because you as a jury have the right to sanction the use 

of deadly force. We all have that as citizens, the right to use deadly force. I 

think that we would all want that if we were ever confronted with that 

situation, and hopefully we never are. [¶] But you are going to speak for the 

community about whether or not deadly force was reasonable in this 

situation and whether it was justified or whether it reduced really a cold

blooded murder to a manslaughter.”

Showing the jury photos of Torres after his arrest, the prosecutor 

argued Torres suffered some scratches but not enough to warrant the use of 

deadly force against Finnegan. The prosecutor told the jury to consider the 

“couple of scratches versus a 19-year-old who has a hole on the side of his

head.” The prosecutor continued: “And as I said, you will speak for the 

community. When you go back and you discuss this case, and I know you

will, you have been very attentive. After you listen to [defense counsel] and 

hear everything he has to say, you will get a chance to go back and make a 

decision and speak for the community on this case.” 
7

The jury acquitted Torres of first degree murder, found him 

guilty of second degree murder, and found he personally used a deadly 

weapon. Later that day, the trial court found the prior allegation to be true. 

The court sentenced Torres to 30 years to life in state prison for the murder, 

plus one year for the deadly weapon enhancement. Torres timely appealed. 

DISCUSSION

Torres argues the prosecutor impermissibly appealed to the 

jurors’ sympathy by urging them to convict Torres “to protect the 

community.” He claims this was improper because it shifted the jury’s focus 

from examining his guilt to improperly comparing the injuries sustained by 

Torres to those sustained by Finnegan and considering what was right for the

community. According to Torres, this was reversible prosecutorial error

under federal and state standards.

2

 We conclude, however, it was not error 

under either standard.

We “review[ ] a trial court’s ruling on prosecutorial [error] for 

abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213.) Under 

the federal Constitution, a prosecutor who uses “deceptive or reprehensible 

methods to persuade the jury” commits error which requires reversal when 

those methods “infect the trial with such ‘“unfairness as to make the 

resulting conviction a denial of due process.”’” (People v. Parson (2008) 44 

Cal.4th 332, 359 (Parson).) “‘“Under state law, a prosecutor who uses such 

methods commits [error] even when those actions do not result in a 

2 Although Torres calls it “misconduct,” we use the term 

prosecutorial “error” because “the term prosecutorial ‘misconduct’ is 

somewhat of a misnomer to the extent it suggests a prosecutor must act with 

a culpable state of mind [in order to commit reversible error].” (People v. Hill

(1998) 17 Cal.4th 800, 823, fn. 1.)
8

fundamentally unfair trial” (ibid.), but the defendant must show that without 

the error “‘it is reasonably probable that a result more favorable to the 

defendant would have been reached’” (People v. Tully (2012) 54 Cal.4th 952, 

1010 (Tully)).

Under the federal standard, “[a] prosecutor may not urge jurors 

to convict a criminal defendant in order to protect community values, 

preserve civil order, or deter future lawbreaking. The evil lurking in such 

prosecutorial appeals is that the defendant will be convicted for reasons 

wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by 

such appeals to believe that, by convicting a defendant, they will assist in the 

solution of some pressing social problem. The amelioration of society’s woes 

is far too heavy a burden for the individual criminal defendant to bear.” 

(United States v. Leon-Reyes (9th Cir.1999) 177 F.3d 816, 822 (Leon-Reyes).) 

“On the other hand, a prosecutor may ask the jury to act as a ‘“conscience of 

the community”’ unless such a request is ‘“specifically designed to inflame the 

jury.”’” (Ibid.) “‘[A] court should not lightly infer that a prosecutor intends 

an ambiguous remark to have its most damaging meaning or that a jury, 

sitting through a lengthy exhortation, will draw that meaning from the 

plethora of less damaging interpretations.’” (Id., at pp. 822–823.)

Here, the prosecutor told the jury it was “going to speak for the 

community about whether or not deadly force was reasonable in this 

situation and whether it was justified or whether it reduced really a cold

blooded murder to a manslaughter.” He later repeated that the jury “will 

speak for the community” and, after listening to defense counsel, “will get a 

chance to go back and make a decision and speak for the community on this 

case.” 
9

These comments were not improper. They did not call on the jury 

to “protect community values, preserve civil order, [ ] deter future 

lawbreaking,” or solve “some pressing social problem.” (Leon-Reyes, supra,

177 F.3d at p. 822.) The comments simply asked the jury to act as a 

‘“‘conscience of the community.’”’ (Ibid.) This is permissible conduct unless 

‘““specifically designed to inflame the jury”’” (ibid.) — something we conclude 

did not happen here.

The result is the same under California law. Our high court has 

“routinely” upheld comments by the prosecutor that “were tantamount to 

comparing the jury to ‘“the conscience of the community”’” as proper. (People 

v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789; accord, People 

v. Gamache (2010) 48 Cal.4th 347, 388–389 [rejecting defense objections to 

“conscience of the community” comments, noting “[j]urors are the conscience

of the community”]; People v. Martinez (2010) 47 Cal.4th 911, 966 [holding 

prosecutor “properly argued that ‘the community, acting on behalf of those 

injured, has the right to express its values by imposing the severest 

punishment for the most aggravated crimes’”].)

Even assuming the prosecutor’s comments were improper, any 

error was harmless. To be reversible under federal law, the error must have 

“infect[ed] the trial with such ‘“unfairness as to make the resulting conviction 

a denial of due process.”’” (Parson, supra, 44 Cal.4th at p. 359.) And under 

state law, we consider whether “‘it is reasonably probable that a result more 

favorable to the defendant would have been reached’” absent the remarks 

(Tully, supra, 54 Cal.4th at p. 1010) or “whether there is a reasonable 

likelihood the jury construed the remarks in an improper fashion” (People v. 

Steskal (2021) 11 Cal.5th 332, 350 (Steskal)).
10

As noted by the People, the jury could have, but did not, find 

Torres guilty of first degree murder — thereby undercutting his claim that 

the comments improperly inflamed one or more jurors. 

As for voluntary manslaughter, a theory of “sudden quarrel or 

heat of passion” has an objective component requiring a defendant’s “heat of 

passion [ ] be due to ‘sufficient provocation.’” (People v. Manriquez (2005) 37 

Cal.4th 547, 584.) The jury was instructed that “[i]f enough time passed 

between the provocation and the killing for a person of average disposition to 

‘cool off’ and regain his or her clear reasoning and judgment, then the killing 

is not reduced to voluntary manslaughter on this basis.” (CALCRIM 

No. 570.) Here, the uncontradicted evidence was that after the fight Torres 

left for about five minutes, returned with a knife from his apartment, and ran 

toward Finnegan to stab him in the head. 

Voluntary manslaughter under a theory of imperfect self-defense 

or defense of others requires a person actually but unreasonably believe he 

must defend himself or another from “‘imminent danger of death or great 

bodily injury.’” (Steskal, supra, 11 Cal.5th at p. 345 [imperfect self-defense]; 

People v. Trujeque (2015) 61 Cal.4th 227, 270 [imperfect defense of others].) 

“‘[F]ear of future harm—no matter how great the fear and no matter how 

great the likelihood of the harm—will not suffice.’” (Trujeque, at p. 270.)

Here, the uncontradicted evidence showed Torres’s brother and brother-inlaw were having a “calm conversation” with C.D. and Finnegan when Torres 

stabbed Finnegan. 

Under these facts, it was not reasonably probable that Torres 

would have received a verdict more favorable than second degree murder. 

And because there was ample evidence of malice, that is, Torres’s intent to 

stab Finnegan in the head, we conclude the prosecutor’s statements did not 
11

seriously “infect the trial with such ‘“unfairness as to make the resulting 

conviction a denial of due process.”’” (Parson, supra, 44 Cal.4th at p. 359;

accord, Leon-Reyes, supra, 177 F.3d at p. 823.)

DISPOSITION

The judgment is affirmed.

DELANEY, J.

WE CONCUR:

MOORE, ACTING P. J.

GOODING, J.