Filed 6/16/23 P. v. Torres CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RICHARD MARTINEZ TORRES,

 Defendant and Appellant.

 G061580

 (Super. Ct. No. 93CF3269)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,

Steven D. Bromberg, Judge. Reversed and remanded.

Arielle Bases, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, 

Assistant Attorneys General, Arlene A. Sevidal, Lynne G. McGinnis, and Susan 

Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
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Defendant Richard Martinez Torres appeals from an order denying his 

petition for resentencing under Penal Code former section 1170.95 (now Pen. Code, 

§ 1172.6).1 In 1994, defendant pleaded guilty to one count of murder and one count of 

attempted murder. He also admitted he personally used a firearm during the commission 

of the offenses. The court sentenced defendant to state prison for a term of 27 years to 

life. We affirmed the judgment with modifications to the sentence on appeal. (People v. 

Torres (Dec. 18, 1995, G017512) [nonpub. opn.].) 

In 2022, defendant filed a petition for resentencing. The court appointed 

counsel for defendant, received briefing from the parties, and conducted a prima facie 

hearing. After taking the matter under submission, the court summarily denied 

defendant’s petition for resentencing.

On appeal, defendant contends the court erred by denying his petition 

because the court engaged in improper fact finding by relying on defendant’s guilty plea. 

He also argues the record does not conclusively establish he was precluded from relief.

For the reasons below, we agree with defendant’s latter contention. We accordingly 

reverse the postjudgment order and remand for further proceedings. 

FACTS

In 1994, defendant pleaded guilty to one count of murder and one count of 

attempted murder. The factual basis for the guilty plea stated: “In Orange County, on 

August 23, 1993, I unlawfully killed Debbie Louis[e] Gonzalez with malice aforethought 

and attempted to kill [G.B.] with malice aforethought, personally using a firearm in both 

instances.”

1

 Effective June 30, 2022, Penal Code section 1170.95 was renumbered 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3

In 2022, defendant filed a petition for resentencing. Using a preprinted 

form, he checked the boxes stating: “1. A complaint, information, or indictment was filed 

against me that allowed the prosecution to proceed under a theory of felony murder, 

murder under the natural and probable consequences doctrine or other theory under 

which malice is imputed to a person based solely on that person’s participation in a 

crime, or attempted murder under the natural and probable consequences doctrine. 

[Citation.] [¶] 2. I was convicted of murder, attempted murder, or manslaughter 

following a trial or I accepted a plea offer in lieu of a trial at which I could have been 

convicted of murder or attempted murder. [Citation.] [¶] 3. I could not presently be 

convicted of murder or attempted murder because of changes made to Penal Code §§ 188 

and 189, effective January 1, 2019.” (Underscoring omitted.) 

In July 2022, the court summarily denied defendant’s petition. In its 

statement of decision, the court emphasized it “ha[d] not read, considered, or reviewed 

any document except for understanding the procedural history of [the] case.” The court 

added that it had “not undertaken a factual review.” Relying on the basis for defendant’s 

guilty plea, the court concluded: “The evidence is sufficient that [defendant] was the 

actual killer as well as the attempted killer. A prima facie [case] has not been shown.”

Defendant timely filed a notice of appeal.

DISCUSSION

Defendant contends the court erred by denying his petition for resentencing 

because the court’s consideration of his guilty plea required improper fact finding. He 

also argues the record did not conclusively establish he was precluded from relief. We 

agree with his latter contention.

Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) to “amend the felony 

murder rule and the natural and probable consequences doctrine, as it relates to murder, 
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to ensure that murder liability is not imposed on a person who is not the actual killer, did 

not act with the intent to kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It 

accomplished this by amending sections 188 and 189 and adding section 1172.6, such 

that persons convicted of felony murder or murder under a natural and probable 

consequences theory could seek resentencing or to have the conviction vacated. (People

v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Effective January 1, 2022, the 

Legislature amended section 1172.6 to expand resentencing eligibility to persons 

convicted of attempted murder and manslaughter. (Stats. 2021, ch. 551, § 2.)

Senate Bill 1437 also created a procedure, codified in section 1172.6, by 

which defendants could seek resentencing if their conduct did not constitute murder as 

redefined by Senate Bill 1437. (Lewis, supra, 11 Cal.5th at p. 957.) The defendant first 

must file a petition showing: (1) he was prosecuted for felony murder or murder under 

the natural and probable consequences doctrine; (2) he was ultimately convicted of first 

or second degree murder; and (3) he could not be convicted for murder today because of 

how the Legislature has redefined the offense. (§ 1172.6, subd. (a)(1)-(3).) If the petition 

is facially sufficient and the petitioner requests counsel, the trial court must appoint 

counsel. (Id., subd. (b)(3).) The parties then brief the question of whether petitioner is 

entitled to relief. (Id., subd. (c).) If the defendant makes a prima facie showing, the trial 

court is required to issue an order to show cause. (Ibid.) If the parties do not stipulate the 

defendant is entitled to relief, the court must conduct an evidentiary hearing. (Id., subd. 

(d).)

In determining whether the petitioner has made a prima facie case for relief, 

the trial court may rely on the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-

971.) The record of conviction includes the court’s own documents, including the 

underlying facts as presented in an appellate opinion, the trial evidence, the jury 

instructions, closing arguments of counsel, and any guilty pleas. (People v. Lopez (2022) 
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78 Cal.App.5th 1, 13; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, overruled 

on other grounds in Lewis, supra, 11 Cal.5th at pp. 961-962.) As our Supreme Court 

explained, “The record of conviction will necessarily inform the trial court’s prima facie 

inquiry . . . allowing the court to distinguish petitions with potential merit from those that 

are clearly meritless.” (Lewis, at p. 971.)

Here, the first amended information alleges defendant “did willfully and 

unlawfully and with malice aforethought murder” Debbie Louise Gonzalez and “did 

willfully, unlawfully, and with malice aforethought, attempt to kill” G.B. The 

information further alleged defendant personally used a firearm in the commission and 

attempted commission of the above offenses. As the Attorney General concedes, the

language in the information was generic and did not limit the prosecution’s ability to 

proceed under a theory of felony murder, murder under the natural and probable 

consequences doctrine, imputed malice, or attempted murder under the natural and 

probable consequences doctrine. (People v. Davenport (2021) 71 Cal.App.5th 476, 484 

[information alleging murder was committed “‘“‘willfully, unlawfully, and with malice 

aforethought’”’” does not limit prosecution’s ability to pursue felony murder or murder 

based on natural and probable consequences doctrine].)

Based on the guilty plea, the Attorney General argues defendant 

specifically admitted he killed one victim and attempted to kill another with malice 

aforethought. As noted, ante, defendant’s plea admits he “unlawfully killed Debbie 

Louis[e] Gonzalez with malice aforethought and attempted to kill [G.B.] with malice 

aforethought, personally using a firearm in both instances.” Defendant essentially

admitted he was liable for murder and attempted murder according to the law existing at 

the time of the plea. But the factual basis for the plea does not establish as a matter of 

law that defendant committed the murder or attempted murder. Indeed, defendant offered 

a theory under which his guilty plea was consistent with malice under a felony murder or 

natural and probable consequences theory—he displayed or had a firearm but was never 
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the one who fired it. The language regarding a specific intent to kill would not have 

precluded the prosecution from proceeding on a natural and probable consequences 

theory, which imputes the specific intent to kill in a murder prosecution. (See People v.

Prettyman (1996) 14 Cal.4th 248, 259-260.) Likewise, defendant’s admission to 

personally using a firearm does not bar relief because, as both parties acknowledge, a 

person can use a gun during the commission of a crime without ever firing it. The court 

accordingly could not determine as a matter of law that defendant was ineligible for relief 

under the statute based on his statement on the plea form. (People v. Flores (2022) 76 

Cal.App.5th 974, 987 [defendant was not ineligible for resentencing as a matter of law 

where neither information nor guilty plea specified or excluded any particular theory of 

murder]; People v. Rivera (2021) 62 Cal.App.5th 217, 224 [“a defendant who entered a 

plea to murder ‘with malice aforethought’ is not categorically incapable of making a 

prima facie showing of eligibility for relief . . . because such a plea is not necessarily an 

admission that the crime was committed with actual malice”]; People v. Enyon (2021) 68 

Cal.App.5th 967, 970-971 [pleading guilty to premeditated first degree murder 

committed during a robbery did not make the defendant ineligible for relief as a matter of 

law].)

People v. Nguyen (2020) 53 Cal.App.5th 1154, which the Attorney General 

cites, is distinguishable. In Nguyen, the court found a defendant who pleaded guilty to 

second degree murder was ineligible for relief as a matter of law because “transcripts 

from the preliminary and plea hearings demonstrate[d he] was convicted of second 

degree murder as a direct aider and abettor” as that “was the only theory put forth by the 

prosecutor . . . .” (Id. at p. 1166.) Similar facts do not exist here.
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DISPOSITION

The postjudgment order is reversed and the matter is remanded for further 

proceedings.

SANCHEZ, J.

WE CONCUR:

MOORE, ACTING P. J.

DELANEY, J.