Filed 8/14/26 P. v. Torres CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B347614
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 25DWCF00150)
v.
ARMANDO TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Joseph Porras, Judge. Affirmed.
Jennifer Peabody and Richard B. Lennon, under
appointments by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury convicted Armando Torres of felony evasion of a
peace officer and misdemeanor driving under the influence. The
jury found true the aggravating circumstance that Torres’s felony
evasion involved a threat of great bodily harm. The trial court
sentenced him to the upper term of three years. Torres
challenges the trial court’s imposition of the upper term. He
contends that the threat of great bodily harm is an element of
felony evasion and substantial evidence did not support the
aggravating circumstance. We find no error and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2025, the People charged Torres with felony
evasion of a peace officer (Veh. Code, § 2800.2; count 1) and
misdemeanor driving under the influence (id., § 23152, subd. (a);
count 2).1 The information alleged as a circumstance in
aggravation that count 1 involved a threat of great bodily harm.
(Cal. Rules of Court, rule 4.421(a)(1)).2 The case was tried to a
jury.
1 Further undesignated statutory references are to the
Vehicle Code.
2 Further undesignated rule references are to the California
Rules of Court.
2
The Evidence At Trial
Consistent with the standard of review, we summarize the
evidence in the light most favorable to the judgment.3 (See
People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
On February 9, 2025, at around 11:30 p.m., officer Derrick
County was patrolling Florence Avenue in the City of Bell when
he saw a white car “in the number one lane make an abrupt turn,
cross all lanes of traffic, and proceed northbound” at an
intersection. “[S]eeing that the vehicle was traveling at a high
rate of speed and the pedestrians that are still out coming home
at night,” County activated his lights and siren. The driver did
not stop. The vehicle was traveling over 60 miles per hour in a 25
mile-per-hour residential zone, left the ground as it hit speed
bumps, and ran two or three stop signs. At one point, a
pedestrian crossed the street, causing the car to slow.
County requested assistance from other available units.
Officer Carlos Marroquin responded and took over the pursuit as
the primary pursuer. Marroquin first encountered the vehicle
“driving at [him] or towards [him] at a high rate of speed with its
lights off.” Throughout the pursuit, the vehicle consistently sped,
repeatedly ran red lights, drove with its headlights off, drifted
into intersections when making turns at high speed, and crossed
the center median to drive on the wrong side of the road.
When the car entered the City of Huntington Park, officers
“backed off” in the downtown district “where it’s heavily
populated due to shopping and restaurants.” A police helicopter
began broadcasting its visual observation of the vehicle to
3 The jury implicitly rejected Torres’s testimony that three
men carjacked his vehicle and led police on a pursuit while he
remained in the backseat.
3
pursuing officers. Officers then went “into tracking mode,” in
which they “downgrade[d] [their] lights and sirens” to discourage
the driver from speeding or driving erratically. Marroquin
testified that officers backed off the chase and relied on the
helicopter’s instructions to track Torres’s vehicle because Torres
“was driving way too fast. I wasn’t going to do all that and put
myself in danger.”
The helicopter lost sight of the vehicle after it went under a
freeway overpass. All units went to the area. County drove to
the location and positioned his patrol car about nine to ten feet in
front of the vehicle to get it to stop. He made eye contact with
Torres and saw his face. After a car waiting in a left-turn pocket
moved out of the way, Torres turned left and continued
northbound. A car drove up in the next lane, blocking County
from continuing to follow Torres.
Other officers continued pursuing the vehicle until the
helicopter broadcast that Torres had left the car and was fleeing
on foot. The car continued to roll down the street at about five
miles per hour. It struck a parked car, a pole, and a tree before
coming to a stop. Officers apprehended Torres soon after. The
entire pursuit took 15 to 20 minutes across four cities, totaling
17.2 miles.
Verdict and Sentence
The jury found Torres guilty on count 1 for felony evasion
and count 2 for misdemeanor driving under the influence. The
jury also found true that the felony evasion involved a threat of
great bodily harm within the meaning of rule 4.421(a)(1). At
sentencing, the trial court imposed the upper term of three years
on count 1 and a concurrent 180-day sentence on count 2.
Torres timely appealed.
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DISCUSSION
I. Senate Bill No. 567 and Penal Code Section 1170
As amended by Senate Bill No. 567 (2021–2022 Reg. Sess.),
Penal Code section 1170 makes the middle term in a sentencing
triad the presumptive sentence and permits a trial court to
impose the upper term only “where there are aggravating
circumstances in the crime and the defendant has either
stipulated to the facts underlying those circumstances or they
have been found true beyond a reasonable doubt.” (People v.
Flores (2022) 75 Cal.App.5th 495, 500, disapproved on other
grounds by People v. Lynch (2024) 16 Cal.5th 730; see Pen. Code,
§ 1170, subd. (b)(2).) A single aggravating circumstance found
true by the jury renders a defendant eligible for the upper term.
(People v. Black (2007) 41 Cal.4th 799, 813 (Black).) As relevant
here, rule 4.421(a) lists circumstances in aggravation, including
when the crime involved the threat of great bodily harm.4
II. The Threat of Great Bodily Harm Under Rule
4.421(a)(1) Is Not An Element of Felony Evasion
Torres contends that the trial court erred by imposing the
upper term because the threat of great bodily harm is inherent in
the “willful and wanton disregard” element of felony evasion. We
disagree.
“A circumstance which is an element of the substantive
offense cannot be used as a factor in aggravation. [Citation.] A
sentencing factor is an element of the offense if the crime as
defined by statute cannot be accomplished without performance
of the acts which constitute such factor.” (People v. Clark (1992)
4 The jury instructions and verdict forms indicate the jury
considered whether count 1 involved the threat of great bodily
harm.
5
12 Cal.App.4th 663, 666; see also rule 4.420(h) [“A fact that is an
element of the crime on which punishment is being imposed may
not be used to impose a particular term.”].)
It is a misdemeanor for a person to willfully flee, with the
intent to evade, a pursuing peace officer whose vehicle displays a
lighted red lamp, sounds a siren, is distinctively marked, and is
driven by a uniformed officer. (§ 2800.1, subd. (a).) The offense is
a felony when, in addition to the above elements, “the pursued
vehicle is driven in a willful or wanton disregard for the safety of
persons or property.” (§ 2800.2, subd. (a).)
In 1996, the Legislature amended section 2800.2 to provide
that “a willful or wanton disregard for the safety of persons or
property includes, but is not limited to, driving while fleeing or
attempting to elude a pursuing peace officer during which time
either three or more violations that are assigned a traffic
violation point count under Section 12810 occur, or damage to
property occurs.” (§ 2800.2, subd. (b).) Subdivision (b) thus “sets
forth a definition of conduct that is deemed to be the legal
equivalent of willful or wanton disregard for purposes of
section 2800.2.” (People v. Laughlin (2006) 137 Cal.App.4th 1020,
1027–1028; see also id. at p. 1028 [§ 2800.2 “ ‘describe[s] acts that
constitute driving in a willful or wanton disregard for the safety
of persons or property,’ ” quoting Legis. Counsel’s Dig., Assem.
Bill No. 1999 (1995–1996 Reg. Sess.) 8 Stats. 1996, Summary
Dig., p. 2231, italics omitted; see Stats. 1996, ch. 420, § 1,
p. 2696].)
As our high court explained in People v. Howard (2005) 34
Cal.4th 1129 (Howard), section 2800.2 “very broadly defines”
willful and wanton disregard “to include conduct that ordinarily
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would not be considered particularly dangerous.”5 (Howard, at
pp. 1137, 1138.) For example, “[v]iolations that are assigned
points under section 12810 and can be committed without
endangering human life include driving an unregistered vehicle
owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving
with a suspended license (§§ 14601, 12810, subd. (i)), driving on a
highway at slightly more than 55 miles per hour when a higher
speed limit has not been posted (§§ 22349, subd. (a), 12810,
subd. (e)), failing to come to a complete stop at a stop sign
(§§ 22450, 12810, subd. (e)), and making a right turn without
signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).”
(Id. at pp. 1137–1138 [concluding felony evasion is not inherently
dangerous for purposes of second-degree felony murder rule].)
These traffic violations do not necessarily involve a threat
of great bodily harm but committing three or more of them while
fleeing or attempting to elude a peace officer satisfies the willful
and wanton disregard element of felony evasion. Because felony
evasion may be accomplished without any threat of great bodily
harm to others, that circumstance is not an element of the crime.
The trial court could properly impose the upper term based on
the jury’s finding on the threat of great bodily harm aggravating
circumstance.
5 People v. Johnson (1993) 15 Cal.App.4th 169, which Torres
cites in support of his position that fleeing from police in wanton
disregard necessarily includes “the possibility of massive physical
harm” (id. at p. 174), was superseded by the Legislature’s 1996
amendment to the statute. (Howard, supra, 34 Cal.4th at
p. 1137.)
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III. Substantial Evidence Supports The Jury’s Finding
That Torres’s Felony Evasion Involved A Threat of
Great Bodily Harm Under Rule 4.421(a)(1)
Torres challenges the sufficiency of the evidence supporting
the jury’s finding that his conduct posed a threat of great bodily
harm. We conclude substantial evidence supports the finding.
A. Legal principles
To support the imposition of an upper term, an aggravating
circumstance must make the defendant’s conduct “ ‘distinctively
worse than the ordinary’ ” commission of the offense. (Chavez
Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 89 (Chavez
Zepeda); Black, supra, 41 Cal.4th at p. 817.) “Courts applying
that standard have not imagined an abstract, ‘ordinary case’ to
determine whether a finding of an aggravating circumstance[ ] is
warranted by the facts of the case. Rather, they have considered
whether the manner of the crime’s commission was distinctively
worse ‘when compared to other ways in which such a crime could
be committed.’ [Citations.]” (Chavez Zepeda, at p. 89; see People
v. Moreno (1982) 128 Cal.App.3d 103, 110 [“The essence of
‘aggravation’ relates to the effect of a particular fact in making
the offense distinctively worse than the ordinary.”].) “When
appellate courts have reversed an upper-term sentence on the
ground that the cited aggravating circumstance did not make the
commission of the crime distinctively worse, they have generally
concluded that the circumstance at issue was likely to be present
in most any instance of the offense or added little to the
wrongfulness already inherent in its commission.” (Chavez
Zepeda, at p. 90.)
“When a defendant challenges his conviction or aggravating
factor based on insufficiency of the evidence, ‘the court must
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review the whole 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.’ [Citation.] We
‘ “ ‘ presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ ” ’
[Citation.]” (People v. Mendez-Torres (2025) 113 Cal.App.5th
1007, 1015.)
B. Discussion
Substantial evidence supported the conclusion that Torres’s
manner of committing felony evasion involved the threat of great
bodily harm and made the offense distinctively worse than the
ordinary. Torres did not merely violate traffic laws while fleeing.
He violated traffic laws fundamental to the safety of others
during the pursuit. He drove well above the speed limit, drifted
into intersections, ran multiple stop signs and red lights, crossed
the median and drove on the wrong side of the road, and
intermittently turned off his headlights to avoid detection.
Officers resorted to tracking Torres with the assistance of a
helicopter because he was driving too fast to safely pursue.
Based on these circumstances, a rational jury could conclude that
Torres’s conduct threatened great bodily harm to others.
Torres contends that the jury’s finding was unsupported
because no evidence demonstrated that his driving actually
threatened the safety of any pedestrians or motorists during the
pursuit. He cites evidence that he slowed down for a pedestrian;
the pursuit took place late on Sunday night when people were
“unlikely” to be out; and the pursuing officers reduced any risk to
themselves by backing off.
9
This evidence does not undermine the jury’s finding. That
Torres slowed for a single pedestrian does not compel the
inference that his conduct did not threaten great bodily harm.
The jury could have reasonably concluded from other evidence
regarding Torres’s rate of speed and disregard for traffic laws
that his driving posed a risk to others. (People v. Cuevas (1995)
12 Cal.4th 252, 261 [“The focus of the substantial evidence test is
on the whole record of evidence presented to the trier of fact,
rather than on ‘ “isolated bits of evidence.” ’ ”].)
Further, the record contradicts Torres’s argument that it
was “unlikely” people were around at the time of the pursuit.
Officer County testified that Torres drove over 17 miles through
four cities, Torres was speeding while people were “still out
coming home at night,” and the pursuit continued through at
least one “heavily populated” downtown district.6 He also
6 Torres argues that County’s reference to the “heavily
populated” district “appeared to be a reference to the normal
characteristics of that downtown district as opposed to a
statement that there were a large number of people out on the
streets at that time.” Even if true, this does not compel a
different conclusion. The typical characteristics of a location
where the pursuit took place were highly relevant to determining
whether Torres’s driving posed a threat of great bodily harm.
The jury could reasonably infer that the risk of a pedestrian or
motorist being severely harmed in a generally heavily populated
area would be greater than in an area that was generally
sparsely populated, even if there was no evidence establishing
the actual number of people present at the time. As noted above,
the evidence did not indicate that the streets were entirely
empty. To the contrary, the testimony at trial indicated there
were people and motorists in the areas where the pursuit
occurred.
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testified that other motorists were on the road during the
pursuit. A reasonable jury could infer from this evidence that
motorists and pedestrians were present or nearby during the
pursuit, and Torres’s erratic driving significantly imperiled their
safety.
That pursuing officers reduced the risk to themselves by
backing off does not aid Torres’s argument. According to the
officers’ testimony, they decided to track Torres via helicopter
because Torres’s driving made it dangerous to pursue him more
closely, and they wanted to discourage his reckless conduct. A
jury could reasonably infer from this testimony that the officers
backed off because the officers perceived that Torres’s driving
posed a grave risk to their safety, further supporting the jury’s
conclusion that his conduct threatened great bodily harm.
(Cf. People v. Ortiz (2012) 208 Cal.App.4th 1354, 1373
[referencing trial court finding that “ ‘entire population of people
on the freeway at the time, including the police officers chasing
them . . . were put at risk during that particular chase’ ” as
supporting aggravating circumstances of callousness and extreme
danger to society].)
Finally, the evidence also supports the jury’s conclusion
that the circumstances of this case made Torres’s conduct
distinctively worse than the ordinary felony evasion. Considering
that felony evasion occurs even when a defendant commits traffic
violations that do not endanger the public, the testimony that
Torres drove well above the posted speed limits, ignored red
lights and stop signs, turned off his headlights, drove on the
wrong side of the road, and engaged in this manner of driving for
over 17 miles, permitted the conclusion that Torres’s conduct
11
threatened great bodily harm and thus was worse than ordinary
felony evasion.
Torres contends that the jury’s true finding was improper
in the absence of evidence demonstrating what constitutes
“ordinary” felony evasion. We disagree. No evidence of a
hypothetical “ordinary” commission of the offense was necessary
for the jury to make its finding.
Chavez Zepeda is instructive. There, the appellate court
considered whether the “ ‘ “distinctively worse than the
ordinary” ’ ” test for aggravating factors was unconstitutionally
vague. (Chavez Zepeda, supra, 97 Cal.App.5th at p. 71.) The
court held the test required a factfinder to “[c]ompar[e] the
defendant’s commission of the offense with other ways in which
the same offense has been or may be committed,” which did “not
require the decision maker to define a single, imaginary fact
pattern as the ‘ordinary’ way of committing the offense.” (Id. at
p. 90.) The court further found juries capable of determining
whether the evidence satisfied the test, as the jury instructions
provided “additional guidance and explanation . . . in the
meaning of the requirement that the aggravating circumstance
makes the commission of the offense distinctively worse.” (Id. at
p. 91; see ibid. [citing CALCRIM Nos. 3224–3234].)
Here, the jury was instructed on felony evasion with
CALCRIM No. 2181. The instruction provided that the People
had to prove, among other things, that Torres “committed three
or more violations, each of which would make the defendant
eligible for a traffic violation point” while “willfully” fleeing from
police. The trial court further instructed the jury on the
aggravating factor with CALCRIM No. 3224, which defined
threat of great bodily harm as “the threat of significant or
12
substantial physical injury . . . that would result in greater than
minor or moderate harm.” The instruction also stated: “You may
not find the allegation true unless all of you agree that the People
have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.”
Torres does not challenge the sufficiency of these
instructions in guiding the jury’s determination of the
aggravating factor. Nor does Torres cite authority requiring the
jury to consider evidence of the “ordinary” commission of an
offense to make this determination or suggest what evidence
could have been presented for such purpose. We therefore reject
Torres’s contention that the evidence was insufficient to support
the jury’s finding that Torres’s conduct was distinctively worse
than the ordinary.
13
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, Acting P. J.
We concur:
HANASONO, J.
ASHWORTH, J.*
* Retired Judge of El Dorado Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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