1

Filed 1/31/22 P. v. Torres CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME TORRES,

Defendant and Appellant.

C093439

(Super. Ct. No. 08F05656)

In 2011, a jury found defendant Jaime Torres guilty of the first degree murder of Jose 

Guerrero. After appeal and remand, defendant’s conviction was reduced to second degree 

murder. Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant 

filed a petition for resentencing pursuant to Penal Code1section 1170.95. After a hearing, the 

trial court denied the petition and defendant appealed. We cannot determine from the hearing 

and the trial court’s order whether the court applied the proper standard of review. 

Accordingly, we reverse and remand for a new hearing.

1

 Undesignated statutory references are to the Penal Code.
2

BACKGROUND

The following facts are quoted from the opinion of this court on defendant’s first appeal 

from the judgment. (People v. Torres (Feb. 18, 2014, C069510) [nonpub. opn.] (Torres).) 

“[I]n May 2008 [the victim Jose] Guerrero and his family, which included his wife, 

Celica, and two stepsons who were Sureño gang members, were living at [an address in 

Sacramento]. They had lived there for seven years.

“On Memorial Day, Guerrero was with some other family members in the garage and 

driveway area of his house when a group of young men walked up, including one wearing a 

red bandana across his face. That was [defendant], who is a Norteño gang member. Also in 

the group was Jose [Gonzalez (Jose)], who is also a Norteño gang member.

“[Defendant] challenged Guerrero’s stepsons to come out and fight. Guerrero said he 

was going to call the police and pulled out his cell phone. A physical struggle between 

[defendant] and Guerrero ensued. At some point, [defendant] pulled out a gun. According to 

Guerrero’s stepdaughter, Veronica, Guerrero was able to grab the gun and throw it away, but 

he threw it in the direction of the group that [defendant] came with. Another witness testified 

that Guerrero ‘somehow hit the gun . . . out of [defendant’s] hand, and it flew towards where 

the group was.’ Guerrero’s widow testified that it was [defendant] who ‘threw [the gun] to 

where the others were at.’

“Another member of the group of young men picked up the gun and told Guerrero to let 

go of [defendant]. When he did not do so, the man fired a shot, hitting a nearby van. The man 

then stepped closer and shot Guerrero in the head.

“The People charged seven individuals, including [defendant] and . . . Jose . . . with 

Guerrero’s murder. . . . In late August 2011, [defendant] and Jose (along with another 

defendant who was ultimately acquitted) went to trial. . . .

“The prosecutor argued there was ‘high confidence that the gunman, the actual killer 

was [Jose]’ and that the shooter committed first degree murder. The prosecutor further argued 

that to the extent they did not pull the trigger, the defendants were guilty of the murder either 

because they aided and abetted the murder or because they committed or aided and abetted the 
3

crime of fighting or challenging to fight and the murder was a natural and probable 

consequence of that crime.

“The jury found both [defendant] and Jose guilty of first degree murder and found true” 

a gang enhancement allegation and a firearm enhancement allegation. The trial court 

sentenced defendant to 50 years to life. (Torres, supra, C069510.) 

On defendant’s first appeal from the judgment, another panel of this court “agree[d]

with [defendant] that the jury instructions were erroneous because they did not allow the jury 

to consider whether the defendants might have been guilty of only second degree murder under 

the natural and probable consequence doctrine, even if the shooter committed first degree 

murder.” (Torres, supra, C069510.) This court reversed defendant’s and Jose’s convictions 

and remanded for retrial unless the People accepted reduction of the convictions to second 

degree murder. (Ibid.)

“The People elected not to seek retrial and instead accepted reduction of defendant’s 

conviction to second degree murder. The trial court accepted the remittitur as a modification 

of the judgment to reflect a conviction for second degree murder, and resentenced defendant to 

40 years to life in state prison . . . .” (People v. Torres (Nov. 16, 2015, C078058) [nonpub. 

opn.].) 

In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. In the 

form petition, defendant checked boxes indicating: (1) “A complaint, information, or 

indictment was filed against me that allowed the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable consequences doctrine”; (2) “At trial, I 

was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural 

and probable consequences doctrine”; and (3) “I could not now be convicted of 1st or 2nd 

degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 

2019.” Defendant requested the appointment of counsel. Concluding defendant met his prima 

facie burden, the trial court issued an order to show cause and set the matter for a hearing. 

In their opening brief, the People asserted defendant was ineligible for relief because he 

could still be convicted of malice murder. According to the People, the two valid theories 
4

under which defendant could still be convicted were as a direct aider and abettor of express or 

implied malice murder, and as a direct perpetrator of implied malice murder.2 With regard to 

aiding and abetting express or implied malice murder, the People asserted the evidence 

supported the conclusion Jose shot Guerrero and defendant had the intent that such lethal 

violence be used against Guerrero as demonstrated by the gang evidence and defendant’s 

actions before and after the shooting. The People asserted the evidence supported a finding 

that defendant and Jose acted with malice aforethought in assaulting Guerrero with a firearm 

“and that each was aware of the other’s malice.” The People continued: “At a minimum, 

[defendant] intended to, and in fact did, aid and abet Jose in committing an act, the natural 

consequence of which was dangerous to human life with conscious disregard for human life 

and thus is guilty of aiding and abetting implied malice murder.” 

Defendant countered that the People failed to prove malice. Specifically, he asserted 

the People failed to prove that he knew Jose would shoot Guerrero when he picked up the gun, 

that defendant “actually aided the murder,” that defendant intended to aid the murder, and that 

he acted with conscious disregard for human life. Defendant also addressed the issue of who 

threw the gun to Jose, emphasizing the conflicting evidence on the subject. Moreover, 

according to defendant, even if he threw the gun, nothing more than speculation supported the 

premise that he did so intending that Jose shoot and kill Guerrero. Defendant further asserted 

the People could not establish he would be guilty of implied malice murder because there was 

no evidence he “actually appreciated that death was a consequence of his action” or that he 

consciously disregarded that danger. 

At the hearing, the People asserted there were three grounds on which to deny 

defendant’s petition: (1) “direct perpetration”; (2) as a direct aider and abettor based on 

Celica’s testimony defendant threw the gun to Jose; and (3) aiding and abetting “while he was 

being held by the victim.” Relying on People v. Gentile (2020) 10 Cal.5th 830, the People 

2

 For purposes of resolving defendant’s appeal, we need not address the People’s 

contention defendant could be convicted as a direct perpetrator of implied malice murder.
5

contended defendant committed the crime of aiding and abetting implied malice murder; 

defendant shared in the shooter’s culpable mental state that the shooter “was going to do an act 

that was inherently dangerous and act with conscious disregard for human life.” 

Defense counsel argued that a primary issue was who threw the gun. Defense counsel 

emphasized that Celica, Veronica, and a third witness all told police after the shooting that 

defendant did not throw the gun, but rather Guerrero either knocked the gun from defendant’s 

hand or grabbed it and threw it. Defense counsel emphasized Celica was the only witness to 

testify at trial that defendant threw the gun. However, her testimony contradicted what she had 

previously told a police detective in her native Spanish. Defense counsel argued that Celica’s 

testimony could not be credited and, even if it could, the prosecution still failed to prove 

conscious disregard and the subjective awareness that the gun would be used to kill someone. 

Defense counsel further asserted there was no evidence defendant was subjectively aware of 

the high probability of death. 

The trial court denied the petition, concluding defendant “does not satisfy” the 

requirement that he “could not be convicted of first or second degree murder because of 

changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) We 

discuss the trial court’s decision in greater detail, post.

DISCUSSION

I

Senate Bill No. 1437

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” 

(§ 187, subd. (a).) “For purposes of Section 187, malice may be express or implied.” (§ 188, 

subd. (a).) Prior to the enactment of Senate Bill No. 1437, “the natural and probable 

consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the 

commission of a criminal act (a target offense), and a principal in the target offense committed 

murder (a nontarget offense) that, even if unintended, was a natural and probable consequence 

of the target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.)
6

On September 30, 2018, the Governor signed Senate Bill No. 1437, which became

effective January 1, 2019. Senate Bill No. 1437 was enacted “to amend the felony murder 

rule[3]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).) Senate Bill No. 1437 

achieved this by amending sections 188 and 189.

Relevant here, subdivision (a)(3) of section 188 now provides: “Except as stated in 

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.” Thus, following enactment of Senate Bill No. 1437, and where, 

as here, the felony-murder rule is not at issue, a person must act with malice to be convicted of 

murder. (§ 188, subd. (a)(3); see In re R.G. (2019) 35 Cal.App.5th 141, 144.)

Senate Bill No. 1437 also authorized, through newly enacted 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 No. 1437’s changes to sections 188 or 189. (See People v. Lewis (2021)

11 Cal.5th 952.)

Upon the submission of a section 1170.95 petition: “The court shall review the petition 

and determine if the petitioner has made a prima facie showing that the petitioner falls within 

3

 Felony murder is not at issue here. The prosecutor’s theories at trial relative to 

defendant were based on direct aiding and abetting or that defendant “committed or aided and 

abetted the crime of fighting or challenging to fight and the murder was a natural and probable 

consequence of that crime.” (Torres, supra, C069510.) The prosecutor did not rely on a 

felony-murder theory, and with good reason: fighting in a public place or challenging another 

person to fight in a public place, the crime relied upon for the natural and probable 

consequences theory, is not a felony. (§ 415, subd. (1).)
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the provisions of this section.” (§ 1170.95, subd. (c).) “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.” (Ibid.)

II

The Applicable Standard Of Review

Where, as here, the trial court concludes the petitioner has made a prima facie showing 

and issues an order to show cause: “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. 

The prosecutor and the petitioner may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3).)

In an opinion that has since been ordered depublished or not citable by our Supreme 

Court (see Cal. Rules of Court, rule 8.1115(e)(3)), the first then-published Court of Appeal 

case to consider the standard of review for a trial court considering a section 1170.95 petition 

at a hearing after an order to show cause issues settled on a standard essentially identical to 

substantial evidence review. That would require only that the trial court determine the 

prosecution proved, beyond a reasonable doubt, the defendant could still have been convicted 

of murder by a reasonable jury.

Thereafter, several other cases, which have also since been ordered depublished or not 

citable, disagreed with the application of a standard essentially identical to substantial evidence 

review. In those cases, the courts concluded that section 1170.95 requires the prosecutor to 

prove each element of first or second degree murder under the law as amended beyond a 

reasonable doubt in order to establish ineligibility. In other words, these cases concluded it is 

the trial court’s responsibility to act as independent fact finder and determine whether the 

evidence establishes a petitioner would be guilty of murder under sections 188 and 189 as 

amended, and is thus ineligible for resentencing under section 1170.95.
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We agree with the parties that the “independent fact finder” standard, as opposed to the 

“substantial evidence” standard, is the appropriate standard of review. (See People v. Garrison 

(Dec. 17, 2021, B308319) ___Cal.App.5th___ [2021 Cal.App. Lexis 1111] [the split of 

authority has been resolved by actions of both the Supreme Court and the Legislature; the trial 

court, acting as an independent fact finder, must determine, beyond a reasonable doubt,

whether the defendant is guilty of murder under a valid theory]; People v. Ramirez (2021)

71 Cal.App.5th 970, 984 [the trial court must act as independent fact finder and determine 

whether the evidence establishes the petitioner would be guilty of murder under §§ 188 and

189 as amended and is thus ineligible for resentencing under § 1170.95, subd. (d)(3)].) We 

conclude that, in considering a section 1170.95 resentencing petition after issuing an order to 

show cause, the trial court is required to independently determine that it would convict the 

defendant on a theory that remains viable under sections 188 and 189 as amended, not merely 

that a reasonable jury could find the defendant guilty on such a theory.

III

Additional Background -- The Trial Court’s Order

In its order, the trial court stated defendant was not eligible for section 1170.95 relief 

because “he does not satisfy” the third requirement of section 1170.95, that he “could not be 

convicted of first or second degree murder because of changes to Section 188 or 189 . . . .” 

(§ 1170.95, subd. (a)(3).) The court stated: “Defendant . . . cannot make this showing because 

his murder conviction still holds up under the current law.” (Italics added.) 

The trial court noted defendant’s jury had been instructed on two theories: direct aiding 

and abetting and the natural and probable consequences doctrine. The court recounted the 

events leading up to and including the altercation, as well as the gang evidence. The court 

credited Celica’s testimony that defendant threw the gun to his companions. The court stated: 

“There was sufficient evidence to support the conclusion the person who picked up the firearm 

was . . . Jose . . . .” The shooter then shot the victim, killing him. The trial court also 

emphasized defendant’s close relationship with Jose and their shared Norteño gang affiliation. 
9

The trial court concluded: “Based on all of the facts and circumstances presented at the 

trial and during the hearing it is evident [defendant] is not eligible for relief under section 

1170.95, as a review of the evidence indicates he could still be found guilty of murder under a 

theory of liability that remains valid and upon which the jury was instructed.” The court 

concluded that, under the holding of either line of cases that have since been depublished, 

discussed ante, “the conclusion is the same.”

IV

The Standard Of Review Employed By The Trial Court

Defendant asserts “the trial court applied the wrong standard or failed to meaningfully 

employ any standard at all.” Defendant emphasizes the court did not identify the standard of 

review it was employing, instead it merely stated its conclusion would be the same under either 

standard. Additionally, while stating defendant could still be found guilty of murder under a 

valid theory, the court did not identify that theory and it did not expressly make any finding 

beyond a reasonable doubt. Defendant also asserts the court improperly shifted the burden of 

proof. 

Upon reviewing the hearing and the trial court’s order, we cannot say with any 

assurance what standard of review the court applied or whether it found the evidence 

established, beyond a reasonable doubt, defendant would be guilty of murder under amended 

sections 188 or 189 and was thus ineligible for resentencing.

The trial court did not state the standard of review it was applying. Although the court 

recited what the evidence “demonstrated,” “showed,” and “established,” it never set forth its 

standard of review.

The court did not once articulate the beyond-a-reasonable-doubt standard of review, 

whether in the context of the prosecution’s burden of proof or its standard of review in 

considering the evidence as independent fact finder.

The court’s conclusion was that “a review of the evidence indicates [defendant] could 

still be found guilty of murder under a theory of liability that remains valid and upon which the 

jury was instructed.” (Italics added.) This evokes the substantial evidence standard of review 
10

we have rejected. The court’s language does not suggest an exercise in independent 

factfinding. The court also stated there “was sufficient evidence to support the conclusion the 

person who picked up the firearm was” Jose. (Italics added.) This language, too, evokes the 

substantial evidence standard of review.

In one instance, the court’s order can be read as suggesting defendant bore the burden of 

proof. The court discussed the requirement that the “petitioner could not be convicted of first 

or second degree murder because of changes to Section 188 or 189 . . . .” (§ 1170.95, subd. 

(a)(3).) The court stated: “Defendant . . . cannot make this showing because his murder 

conviction still holds up under the current law.” (Italics added.) However, at the hearing, “the

burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)

The trial court also did not articulate which “theory of liability that remains valid and 

upon which the jury was instructed” it relied upon in making its decision.

The court cited Rodriguez, which we have concluded articulates the proper standard of 

review. However, it also invoked the no longer citable case which settled on substantial 

evidence review. The court stated its conclusion would be the same under either standard. 

In sum, the trial court did not articulate the standard of review it was applying, never 

invoked the beyond-a-reasonable-doubt standard, arguably invoked the substantial evidence 

standard of review and shifted the burden of proof, did not state what still-valid theory of 

murder applied, and cited cases with differing standards of review. It is unclear whether the 

court employed the correct standard of review in making its determinations and found, beyond 

a reasonable doubt, as an independent fact finder, that it would convict defendant on a theory

that remains viable following the amendment of sections 188 and 189. (See People v. 

Garrison, supra, ___Cal.App.5th at p. ___ [2021 Cal.App. Lexis 1111]; People v. Ramirez,

supra, 71 Cal.App.5th at p. 984.) The cursory statement that the result would be the same 

under either standard is insufficient to reassure us that the court applied the appropriate 

standard of review and engaged in the requisite independent factfinding.
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Accordingly, we must reverse the order denying the petition and remand the matter to 

the trial court for a new section 1170.95, subdivision (d)(3) hearing under the correct standard. 

At the new hearing, the parties should be afforded the opportunity to present additional 

evidence, should they so request.

We reject defendant’s contention that remand is inappropriate and that we must vacate 

his murder conviction. Defendant misplaces reliance on the rule that, “when a reversal rests 

upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, 

the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction.” 

(Tibbs v. Florida (1982) 457 U.S. 31, 42 [72 L.Ed.2d 652, 661].) Even if this rule applied in 

this context, our determination is not that the prosecution failed to proffer legally sufficient 

evidence, but rather that it is not clear the trial court employed the correct standard of review. 

Nor do we accept defendant’s invitation to “find that [he] prevails under any standard of 

review.” 

In light of our determination and this open remand, we need not reach defendant’s 

substantial evidence claim, his claim addressed to the theory of aiding and abetting an implied 

malice murder, or his claim that his petition may have been denied based on an invalid legal 

theory.

V

Res Judicata And Double Jeopardy

Defendant asserts, essentially, that a finding that the trial court would convict him under 

direct aiding and abetting principles is precluded as a matter of law, and that the only other 

theory on which the jury was instructed was the now-invalid natural and probable 

consequences doctrine. Therefore, he asserts, in effect, that the trial court was precluded as a 

matter of law from denying his petition.

Defendant contends that a finding that the trial court would still convict him of first

degree murder is precluded by double jeopardy and res judicata principles. He bases this claim 

on this court’s reversal of his first degree murder conviction on his first appeal and the 

reduction to second degree murder. (Torres,supra, C069510.) He claims that, under Gomez v. 
12

Superior Court (1958) 50 Cal.2d 640, this was the functional equivalent of an acquittal of first 

degree murder. Even assuming these principles apply to the discrete issues presented at a 

section 1170.95 resentencing hearing, a question we ultimately need not answer here, we 

conclude that denial of defendant’s petition was not precluded as a matter of law because 

defendant could still be convicted of directly aiding and abetting second degree murder.

Defendant claims the trial court could not find he could still be convicted of directly 

aiding and abetting second degree murder because the perpetrator was convicted of first degree 

murder. According to defendant, under People v. Perez (2005) 35 Cal.4th 1219 and People v. 

McCoy (2001) 25 Cal.4th 1111, he “could not have a lesser degree of culpability than the 

perpetrator.” 

Contrary to defendant’s representations that the perpetrator was convicted of, or “guilty 

of,” first degree murder, Jose’s conviction was also reversed and reduced to second degree 

murder, subject to the People’s election as to whether to retry him on the premeditation and 

deliberation element of first degree murder. (Torres, supra, C069510.) If Jose was the 

perpetrator, he does not stand convicted of first degree murder. To the extent defendant would 

claim another individual was the shooter, the record does not establish any first degree murder 

conviction. Thus, even if defendant were correct that he could not have a lesser degree of 

culpability than the perpetrator, the record does not establish a perpetrator was convicted of 

first degree murder. We note that, even if the perpetrator’s first degree murder verdict 

remained, it is not clear this would preclude finding defendant still could be convicted of 

second degree murder for purposes of weighing a section 1170.95 petition. In any event, 

because Jose’s first degree murder conviction has been reversed, we need not decide the issue.

Defendant states that he could not have been “convicted of second degree murder as a 

direct accomplice.” In addition to his claim he could not be guilty of a lesser offense than the 

perpetrator, defendant’s contention also appears to be based on this court’s decision on his first 

appeal, which stated: “the jury instructions were erroneous because they did not allow the jury 

to consider whether the defendants might have been guilty of only second degree murder under 

the natural and probable consequence doctrine, even if the shooter committed first degree 
13

murder.” (Torres, supra, C069510, italics added.) Defendant asserts: “If appellant could 

conceivably have been convicted of second degree murder as a direct accomplice of murder 

then the instructional error would have applied to both theories of liability.” However, the 

language quoted from this court’s opinion on defendant’s first appeal addressed only the 

contention he advanced on that appeal: “that the jury instructions were erroneous because they 

did not allow the jury to consider whether he might have been guilty of only second degree 

murder under the natural and probable consequence doctrine, even if the shooter was guilty of 

first degree murder.” (Torres, supra, C069510.) The jury was also instructed with CALCRIM 

No. 400 on the general principles of aiding and abetting and CALCRIM No. 401 on direct 

aiding and abetting. This court was not asked to, and did not, make any determination as to the 

instructions in relation to direct aiding and abetting. The quoted language from this court’s 

prior opinion on defendant’s first appeal does not preclude a trial court finding defendant 

would be guilty of second degree murder on a direct aiding and abetting theory based on res 

judicata, the law of the case, or any other theory.

In short, nothing about Jose’s original conviction, or this court’s prior opinion, 

establishes, as a matter of law, defendant “could not be convicted” of second degree murder

under a direct aiding and abetting theory. (§ 1170.95, subd. (a)(3).) The denial of defendant’s 

petition is not precluded by double jeopardy or res judicata principles.

DISPOSITION

The order denying defendant’s petition is reversed. The case is remanded for the trial 

court to conduct a new hearing under section 1170.95, subdivision (d)(3).

/s/ 

Robie, J.

We concur:

/s/ 

Raye, P. J.

/s/ 

Hull, J.