Filed 7/9/24 P. v. Torres CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRAULIO TORRES,

Defendant and Appellant.

 B330922

 (Los Angeles County

 Super. Ct. No. BA220341)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael Garcia, Judge. Affirmed.

John Steinberg, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys 

General, for Plaintiff and Respondent.

______________________
2

INTRODUCTION

A jury convicted defendant Braulio Torres of first degree 

murder in 2004. In 2022, he filed a petition for resentencing

under Penal Code1 section 1172.6, which the superior court 

denied at the prima facie stage. Torres appeals, contending the 

court erroneously denied him an evidentiary hearing because it is 

possible he was convicted based on an imputed malice theory not 

viable under current law.

We disagree. The jury either found Torres guilty as the 

perpetrator of murder or as a direct accomplice under an aiding

and abetting theory. Under either scenario, the jury necessarily 

found that Torres acted with the intent to kill. Because Torres is 

ineligible for relief under section 1172.6 as a matter of law, we

affirm the denial of his petition.

POSTCONVICTION RELIEF UNDER SECTION 1172.6

We begin by briefly summarizing section 1172.6, which was 

enacted in 2018 as part of Senate Bill No. 1437 (2017-2018 Reg. 

Sess.).

2 The legislation’s overall purpose was “to amend 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 

1 All further unspecified statutory references are to the 

Penal Code.

2 Section 1172.6 was originally codified as section 1170.95. 

The Legislature renumbered the statute as section 1172.6, with 

no change in text, effective June 30, 2022. (Stats. 2022, ch. 58, 

§ 10.) For ease of reference, we use the current citation 

throughout.
3

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, 

the bill added section 188, subdivision (a)(3) “to amend the 

natural and probable consequences doctrine,” and added section 

189, subdivision (e) “to amend the felony-murder rule.” (People v. 

Gentile (2020) 10 Cal.5th 830, 842-843.) Section 188, subdivision 

(a)(3) 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.” 

Section 189, subdivision (e) provides that a person can be held 

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.”

Section 1172.6 allows defendants convicted of murder 

under a theory now precluded by section 188 or 189 to petition to 

vacate their convictions and be resentenced on any remaining 

counts. Defendants must initially make a prima facie showing of 

eligibility for relief by demonstrating they can satisfy three 

criteria: first, that they were charged by a complaint, 

information, or indictment “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” (§ 1172.6, subd. (a)(1)); second, 
4

that they “w[ere] convicted of murder . . . or accepted a plea offer 

in lieu of a trial at which [they] could have been convicted of 

murder” (id., subd. (a)(2)); and third, that they “could not 

presently be convicted of murder . . . because of changes to 

Section 188 or 189 made effective January 1, 2019” (id., subd. 

(a)(3)). If the defendant makes a prima facie showing satisfying

all three criteria, the resentencing court must issue an order to 

show cause and hold an evidentiary hearing at which the burden 

is on the prosecution to prove, beyond a reasonable doubt, that 

the defendant is ineligible for resentencing. (§ 1172.6, subds. (c), 

(d).)

BACKGROUND

A. Factual Summary

Remaining cognizant that fact-finding is restricted at the 

prima facie stage (People v. Lewis (2021) 11 Cal.5th 952, 971), we 

rely on the factual statement from our prior opinion (as both 

parties likewise do in their appellate briefs) to provide context to 

our analysis of the record of conviction.

“[Torres] and Jorge Rosales (Rosales) were members of the 

18th Street gang. Uriel Preciado (Preciado) and Pedro Flores 

(Flores) were associates of the gang.

“The P Stone Bloods and the Easy Riders were rivals of 

18th Street. Their territory was adjacent to that of the 18th 

Street gang.

“On July 24, 2001, [Torres] was driving near Crenshaw 

Boulevard and 28th Street. Rosales and Preciado were riding in 

the car. Three men walked by them and made Easy Rider gang 

signs. Rosales made an 18th Street gang sign and then made an 

obscene hand gesture. One of the men on the street drew a gun. 

[Torres] drove away, stating, ‘We’re going to come back.’
5

“[Torres] drove to his apartment, where he, Rosales and 

Preciado drank tequila and smoked marijuana. Flores joined 

them at the apartment.

“[Torres] had a cloth bag containing five guns inside his 

apartment. He took this bag with him as he, Rosales, Preciado 

and Flores left his apartment and got into his car. He sat in the 

driver’s seat, Rosales sat in the front passenger seat, Preciado sat 

in the back behind [Torres] and Flores sat in the back behind 

Rosales. [Torres] distributed guns to the other three.

“[Torres] drove back to the area where they had 

encountered the Easy Riders. He drove up and down a number of 

streets, looking for them. After finding none, Rosales suggested 

they go home. At Montclair and 28th Streets, [Torres] saw 

Osama Hadnot (Hadnot) standing on a street corner. Hadnot

was not one of the men they had encountered earlier. [Torres] 

called out to Hadnot, ‘What’s up . . . .’ Hadnot began to run. 

Shots were fired at him through the open windows on the driver’s 

side of the car.

“Los Angeles Police Officers Neil Spitz and Patrick Oliver 

were in an unmarked police car across the street, conducting an 

undercover narcotics investigation. They saw [Torres]’s car 

approach the area, heard gunshots and saw guns being fired from 

the front and rear driver’s side windows. They began pursuing 

[Torres]’s car. Flores shot at them through the rear passenger’s 

side window.

“Other officers joined in the pursuit. [Torres] eventually 

crashed his car into another vehicle. He, Rosales and Preciado 

fled on foot, while Flores remained in the car. Officers 

apprehended [Torres], Rosales and Preciado and took them into 
6

custody. The officers also recovered shell casings and the bag 

containing the five guns inside [Torres]’s car.

“Hadnot died of multiple gunshot wounds. . . .

“Defense

“On July 24, 2001, [Torres] and Rosales were driving home 

after taking care of some errands. At Crenshaw Boulevard and 

28th Street, Rosales pointed to three men crossing the street. 

The men looked at them and made gang signs. Rosales made an 

obscene hand sign. One of the men reached in his pocket and 

began running toward [Torres]’s car. Rosales said the men were 

shooting at them, so [Torres] drove away. [Torres] did not hear 

any gunshots, however, and thought Rosales was hearing things 

because he was under the influence of marijuana.

“They went to [Torres]’s apartment, where Rosales drank 

alcohol and smoked marijuana. Flores joined them. [Torres] 

drove Rosales and Flores to Rosales’s house and then took them 

to run an errand. On the way, they saw Preciado at a gas station; 

[Torres] offered him a ride.

“Rosales kept talking about the Easy Riders attempting to 

shoot him. He asked [Torres] to drive to Crenshaw Boulevard to 

see if the men were still there. Rosales said he was going to shoot 

the men if he saw them.

“[Torres] drove slowly as he approached the corner at 28th 

Street, where Hadnot was standing. Hadnot was not one of the 

men that [Torres] and Rosales had seen earlier. Rosales said to 

Hadnot, ‘What’s up . . . .’ [Torres] saw that Rosales was holding a 

gun. Rosales pushed [Torres] out of the way. [Torres] ducked 

down and heard nine shots. He drove away. As he was driving, 

he heard more gunshots coming from the back of his car. 

Eventually, he lost control of his car and crashed. He fled on foot 
7

but was apprehended and arrested.” (People v. Torres (Dec. 28, 

2005, B178418) [nonpub. opn.].)

B. Procedural History

In a one-count information filed on March 1, 2002, the 

People charged Torres, Rosales, and Preciado under section 187, 

subdivision (a) with murdering Hadnot. As to all three 

defendants, the information alleged a special circumstance that 

the murder was perpetrated by means of discharging a firearm 

from a motor vehicle intentionally at a person outside the vehicle 

with the intent to inflict death. (§ 190.2, subd. (a)(21).) The 

information also alleged a gang enhancement (§ 186.22, subd. 

(b)(1)) and personal firearm use enhancements as to all three 

defendants (§ 12022.53, subds. (b), (c) & (d)).

The case against Torres and Preciado proceeded to a jury 

trial.

3 The trial court used CALJIC No. 8.10 to instruct the jury 

on the elements of murder: “Defendants are accused in [c]ount 1 

of having committed the crime of murder, a violation [of s]ection 

187 . . . . [¶] Every person who unlawfully kills a human being 

with malice aforethought is guilty of the crime of murder. [¶] In 

order to prove this crime, each of the following elements must be 

proved: [¶] 1. A human being was killed; [¶] 2. The killing was 

unlawful; and [¶] 3. The killing was done with malice 

aforethought.”

The court defined malice for the jury through CALJIC 

No. 8.11, which states in relevant part, “ ‘Malice’ may be either 

3 Prior to trial, Rosales pleaded guilty pursuant to a plea 

bargain to voluntary manslaughter, admitted personal firearm 

use and criminal street gang allegations, and agreed to testify for 

the prosecution.
8

express or implied. [¶] Malice is express when there is 

manifested an intention unlawfully to kill a human being. [¶] 

Malice is implied when: [¶] 1. The killing resulted from an 

intentional act; [¶] 2. The natural consequences of the act are 

dangerous to human life; and [¶] 3. The act was deliberately 

performed with knowledge of the danger to, and with conscious 

disregard for, human life. [¶] When it is shown that a killing 

resulted from the intentional doing of an act with express or 

implied malice, no other mental state need be shown to establish 

the mental state of malice aforethought.” (CALJIC No. 8.11.)

The court instructed the jury that, if it found a defendant 

guilty of murder, it had to determine whether the murder was of 

the first or second degree. The court then gave separate 

instructions on first and second degree murder. The first degree 

murder instruction (CALJIC No. 8.20) stated in relevant part:

“All murder which is perpetrated by any kind of wilfull [sic], 

deliberate and premeditated killing with express malice 

aforethought is murder of the first degree. [¶] The word ‘willful,’

as used in this instruction, means intentional. [¶] The word 

‘deliberate’ means formed or arrived at or determined upon as a

result of careful thought and weighing of considerations for and 

against the proposed course of action. The word ‘premeditated’

means considered beforehand. [¶] . . . [¶] To constitute a 

deliberate and premeditated killing, the slayer must weigh and

consider the question of killing and the reasons for and against 

such a choice and, having in mind the consequences, he decides to 

and does kill.” The second degree murder instruction (CALJIC 

No. 8.30) stated, “Murder of the second degree is the unlawful 

killing of a human being with malice aforethought when the 
9

perpetrator intended unlawfully to kill a human being but the 

evidence is insufficient to prove deliberation and premeditation.”

The court did not instruct the jury on felony murder or the 

natural and probable consequences doctrine.

The court did give aiding and abetting instructions. The 

court gave CALJIC No. 3.00, which explained that “principals” in 

a crime include perpetrators and accomplices, stating, “Persons 

who are involved in committing a crime are referred to as 

principals in that crime. Each principal, regardless of the intent 

or manner of participation is equally guilty. Principals include: 

[¶] 1. Those who directly and actively commit the act constituting 

the crime, or [¶] 2. Those who aid and abet the commission of the 

crime.” The court then utilized CALJIC No. 3.01 to set out the 

elements of aiding and abetting liability: “A person aids and 

abets the [commission] of a crime when he or she: [¶] (1) With 

knowledge of the unlawful purpose of the perpetrator, and [¶] 

(2) With the intent or purpose of committing or encouraging or 

facilitating the commission of the crime, and [¶] (3) By act or 

advice aids, promotes, encourages or instigates the commission of 

the crime.”

The court instructed the jury to determine if the special 

circumstance allegation was true only if they found a defendant 

guilty of first degree murder.

On August 4, 2004, the jury convicted Torres of first degree 

murder (§ 187, subd. (a)), and found true the special circumstance 

(§ 190.2, subd. (a)(21)) and gang enhancement (§ 186.22, subd. 

(b)(1)). The jury found not true the personal firearm use 

enhancement allegation as to Torres. (§ 12022.53, subd. (d).) On 

September 13, 2004, the trial court sentenced Torres to life 

imprisonment without the possibility of parole.
10

On December 28, 2005, we affirmed the judgment. (People 

v. Torres, supra, B178418.)

C. Section 1172.6 Petition

On November 1, 2022, Torres filed his resentencing 

petition. The court appointed counsel to represent Torres. The 

People filed an opposition and Torres filed a reply.

On May 18, 2023, the court summarily denied the petition,

concluding Torres was ineligible for relief as a matter of law

because “the record of conviction establishes the jury found that 

[Torres] acted as a direct aider and abettor of first degree murder

with the intent to kill,” which is still a viable theory of murder.

Torres filed a timely notice of appeal.

DISCUSSION

A. Standard of Review

In reviewing the summary denial of a section 1172.6 

petition, “ ‘[w]e independently review a trial court’s 

determination on whether a petitioner has made a prima facie 

showing.’ [Citation.]” (People v. Lee (2023) 95 Cal.App.5th 1164, 

1174.) Because we conduct an independent review, “we may 

affirm a ruling that is correct in law on any ground. [Citation.]” 

(People v. Cortes (2022) 75 Cal.App.5th 198, 204, fn. omitted.)

B. Torres’s Petition Fails as a Matter of Law Because 

the Jury Necessarily Found He Acted with Malice

“[A] court may deny the petition at the prima facie stage if 

the record of conviction conclusively establishes that the 

petitioner was convicted on a theory not affected by Senate Bill 

No. 1437.” (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 

921, 931.) Given the information, the jury instructions, and the 

verdict—all of which are part of the record of conviction—the jury 
11

could have convicted Torres under one of only two theories: he 

was the actual killer, or he directly aided and abetted the

commission of the murder. If the jury found Torres guilty as the 

actual killer, he would not be entitled to relief under section 

1172.6. (§ 189, subd. (e)(1); see People v. Strong (2022) 13 Cal.5th 

698, 710 [§ 1172.6 resentencing “relief is unavailable if the 

defendant was . . . the actual killer”].) However, it would appear 

the jury concluded that Torres was not the actual shooter, as it

found the personal firearm use allegation to be not true as to 

Torres.

That leaves the theory that Torres directly aided and 

abetted Hadnot’s murder. As the jury was not instructed on 

natural and probable consequences, this theory of murder 

liability remains valid under current law. (People v. Curiel (2023) 

15 Cal.5th 433, 462; People v. Gentile, supra, 10 Cal.5th at 

p. 848.) Under the aiding and abetting instructions, the jury 

could only find Torres guilty of first degree murder as an aider 

and abettor if it concluded that Torres acted “[w]ith knowledge of 

the unlawful purpose of the perpetrator,” meaning that Torres 

knew the shooter intended to kill, and “[w]ith the intent or 

purpose of committing or encouraging or facilitating the 

commission of the [murder.]” (CALJIC No. 3.01.) Thus, Torres is 

ineligible for relief under section 1172.6.

C. There is No Possibility Torres Was Convicted Based 

on Imputed Malice Due to Allegedly Ambiguous Jury 

Instructions 

Torres contends he adequately alleged a prima facie case 

for relief under section 1172.6 because ambiguity in the jury 

instructions may have led the jury to convict him without finding 
12

that he personally harbored malice. He identifies three alleged 

ambiguities, which we discuss in turn.

1. Reference to the “Slayer” in the First Degree Murder 

Instruction

Relying first on a purported ambiguity in the instruction on 

first degree deliberate and premeditated murder, Torres contends 

that “the jury was asked only to find that the direct perpetrator 

had the intent to kill.” He focuses on the following statement in 

the instruction: “To constitute a deliberate and premeditated 

killing, the slayer must weigh and consider the question of killing

and the reasons for and against such a choice and, having in 

mind the consequences, he decides to and does kill.” (Italics 

added.) Torres argues the jury could have equated “slayer” with 

“perpetrator” and, as a result, concluded an accomplice could be 

guilty of murder based solely on the intent of the perpetrator.

We are not persuaded. Torres focuses on one instruction in 

isolation and ignores that the aiding and abetting instruction

required the jury, if it was to rely on that theory to convict Torres 

of first degree murder, to find that as an aider and abettor Torres

knowingly and intentionally helped another kill. (People v. 

McCoy (2001) 25 Cal.4th 1111, 1123.) The jury could not have 

found Torres guilty of first degree murder on an aiding and 

abetting theory based solely on the slayer’s state of mind; 

instead, it had to find Torres knew the full extent of the 

perpetrator’s criminal purpose and gave aid or encouragement 

with the intent or purpose of facilitating the perpetrator’s 

commission of the crime. (Id. at p. 1118.) “[W]e presume a jury 

understands and follows the court’s instructions” (People v. 
13

Cortes, supra, 75 Cal.App.5th at p. 205), and reject Torres’s 

invitation to speculate to the contrary.

4

2. Alleged Ambiguity in the Malice Instruction

Torres next argues that the instruction on malice created 

ambiguity that may have led the jury to impute malice to him 

because that instruction “focused on the act itself, and not the 

intent of the aider and abettor.” This argument is meritless for 

the same reasons just discussed. As noted, the aiding and 

abetting instruction directed the jury to assess the accomplice’s 

intent, including that he acted to promote the murder with 

knowledge of the slayer’s unlawful purpose, and we presume the 

jury followed that instruction along with all the other 

instructions.

3. Reference to the Equal Guilt of Principals

Torres lastly argues that the instruction defining 

“principals” to include both perpetrators and accomplices 

contributed to the ambiguity caused by other instructions 

because it stated, “Each principal, regardless of the intent or 

manner of participation is equally guilty.” (CALJIC No. 3.00.) 

He also points to portions of the prosecutor’s closing argument 

that echoed this “equally guilty” language. This instruction, a 

former version of CALJIC No. 3.00, “generally stated a correct 

4 Torres makes a similar argument based on language from 

an instruction on the special circumstance allegation which 

referred to the intent of “the perpetrator.” But the jury was 

instructed to consider the special circumstance allegation as to 

Torres only after it had found him guilty of murder, which for the 

reasons discussed meant that the jury found he acted with the 

intent to kill.
14

rule of law,” in that “[a]ll principals, including aiders and 

abettors, are ‘equally guilty’ in the sense that they are all 

criminally liable.” (People v. Bryant, Smith and Wheeler (2014) 

60 Cal.4th 335, 433.) However, past cases have observed that the 

instruction “could be misleading if the principals in a particular 

case might be guilty of different crimes and the jury interprets 

the instruction to preclude such a finding.” (Ibid.; see also People 

v. McCoy, supra, 25 Cal.4th at p. 1122 [holding an accomplice to 

murder can, under some situations, be liable for a greater crime 

than the perpetrator].)5

Cases criticizing the “equally guilty” language because in 

theory an aider and abettor could be guilty of a greater or lesser 

crime than the perpetrator do not suggest that the jury in this 

case could have convicted Torres of murder based on a theory of 

imputed malice. The trial court instructed the jury it must 

decide separately whether each defendant was guilty. As to 

Torres, the only charge before the jury was murder under 

instructions requiring a finding that he intended to kill. Again, 

Torres ignores that the aiding and abetting instruction required 

the jury, in order to convict him of murder as an accomplice, to 

find that he personally knew the perpetrator’s criminal purpose 

and gave aid or encouragement with the intent or purpose of 

facilitating the commission of the crime. (People v. Johnson

(2016) 62 Cal.4th 600, 641 [where the jury was instructed that 

5 Since Torres’s trial, this standard instruction “has been 

revised to address the circumstance that aiders and abettors are 

not always guilty of the same crime as the actual perpetrators. 

(See Use Note to CALJIC No. 3.00 (Spring 2010 rev.) . . . .).” 

(People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at 

p. 433.)
15

the defendant could be guilty of murder as an accomplice only 

upon proof “that [the] defendant knew [the perpetrator] intended 

to kill [the victim], that he intended to aid and abet [the 

perpetrator] in committing the killing, and that he did in fact aid 

him in that killing,” any ambiguity created by the “ ‘equally 

guilty’ ” language in former CALCRIM No. 400 “would have 

[been] cleared up”].)

D. Torres’s Reliance on Implied Malice Cases is Inapt

Torres relies on People v. Langi (2022) 73 Cal.App.5th 972 

and People v. Maldonado (2023) 87 Cal.App.5th 1257 to argue the 

instructions permitted the jury to convict him as an aider and 

abettor without finding he acted with malice. Both cases are 

distinguishable because they involved section 1172.6 petitions 

arising from convictions for aiding and abetting implied malice 

crimes. (People v. Maldonado, at pp. 1262-1263 [first degree 

lying-in-wait murder]; People v. Langi, at pp. 981-983 [second 

degree implied malice murder].) Because the underlying crimes 

in Langi and Maldonado were premised on implied malice, the

jury in each case was not required to find the perpetrator acted 

with the intent to kill. By finding only that the accomplice was 

aware of the perpetrator’s “unlawful purpose” (under the aiding 

and abetting instruction) leading to an implied malice killing, the 

jury did not necessarily find the accomplice acted with express 

malice. (People v. Maldonado, at pp. 1266-1267; People v. Langi, 

at p. 982.) Here, the underlying conviction for first degree 

murder was not premised on implied malice, and the jury thus 

found Torres knew the perpetrator acted with a purpose to kill. 

Coupled with its finding Torres intended that the murder be 
16

committed, the jury necessarily found Torres acted with express 

malice.6

E. The Trial Court Did Not Engage in Improper Factfinding

Lastly, Torres contends that the resentencing court 

engaged in improper fact-finding in denying his petition. We 

disagree. The court’s written order cites People v. Lewis, supra, 

11 Cal.5th 952, which articulates the scope of a court’s review at 

the prima facie stage. In addition, the court’s analysis focused

exclusively on the jury instructions and the jury’s verdict.

In any event, based on our independent review of the 

record of conviction, we conclude that Torres is ineligible for relief 

under section 1172.6 as a matter of law. People v. Flint (2022) 75 

Cal.App.5th 607, upon which Torres relies, is inapposite as in 

that matter we determined, after independent review, that the 

record of conviction did not refute the defendant’s claim of 

eligibility for relief. (Id. at p. 613.)

6 People v. Lee, supra, 95 Cal.App.5th 1164, cited by Torres, 

is also distinguishable. In that case, this court held that the 

defendant had made a prima facie showing he was entitled to 

relief under section 1172.6 where he had been convicted of 

murder under the provocative act doctrine at a time when “case 

law imposed culpability on all perpetrators of the underlying 

crime so long as the provocateur acted with malice, and did so in 

furtherance of the common criminal design,” and the jury 

instructions reflected that theory. (Id. at pp. 1170-1171, 1182.) 

Here, in contrast, Torres was not prosecuted on any legally 

recognized theory of imputed malice, and under the instructions 

the jury was required to find he acted with actual malice.
17

DISPOSITION

The order denying Torres’s petition for resentencing under 

section 1172.6 is affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.