Filed 10/5/26 P. v. Torres CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089265
Plaintiff and Respondent,
(Super. Ct. No. VCF328437B)
v.
STEPHEN TORRES,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Robert
Anthony Fultz, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Stephen Torres challenges the sentence imposed after a partially
successful petition under Penal Code section 1172.6.1 We reject his principal claim that
the superior court erred in relying on aggravating circumstances not proven or admitted
in accordance with section 1170 to impose the middle term. However, we accept the
Attorney General’s concession that the matter must be remanded for the court to consider
what effect, if any, the retroactivity of Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333) has on this matter (and that defendant must be awarded 55 days of
presentence conduct credits on remand).
STATEMENT OF THE CASE
Original Criminal Proceedings
After pleading no contest, defendant was convicted of two counts of attempted
murder (§§ 187/664), each with a gang enhancement (§ 186.22, subd. (b)(1)(C)) and one
with a great bodily injury (GBI) enhancement (§ 12022.7, subd. (a)), shooting at an
inhabited dwelling (§ 246), and maliciously shooting at a person from a vehicle (§ 26100,
subd. (c).) The attempted murder with both enhancements was count 1, the attempted
murder with only the gang enhancement was count 9.
On December 15, 2016, the trial court sentenced defendant to state prison for the
aggravated term of nine years for count 1, plus three years for the GBI enhancement, plus
10 years for the gang enhancement. On count 9, the court sentenced defendant to a
consecutive term of two years four months (one-third of the midterm), plus three years
four months for the gang enhancement. The court also sentenced defendant to a
consecutive term of one year eight months on the count of shooting at an inhabited
dwelling, and a concurrent term of seven years for maliciously shooting at a person from
a vehicle, plus 10 years for the gang enhancement.
1 Subsequent statutory references are to this Code unless otherwise noted.
2.
Resentencing Petition
On December 5, 2022, defendant filed a petition for resentencing under former
section 1170.95.2 The trial court concluded the petition warranted an evidentiary
hearing, which commenced on August 21, 2024. After evidence was given, the court
granted the petition as to count 9 but denied the petition as to count 1. The court
redesignated count 9 as a conviction under section 26100, subdivision (b). (See § 1172.6,
subd. (e).)
On January 27, 2025, the trial court sentenced defendant to the middle term of
seven years on count 1, plus three years for the GBI enhancement, plus 10 years for the
gang enhancement. The court further sentenced defendant to a consecutive term of
eight months (one third of the middle term) on count 9, a consecutive term of
eight months on count 12, and a consecutive term of one year eight months on count 15.
FACTS3
GPS Evidence
Defendant was adjudged a ward of the juvenile court on August 20, 2015, and was
placed on probation, which included a term of GPS monitoring.
On November 27, 2015, J.R. and his future wife E.C. were parked in a car at
Zumwalt Park in Tulare when J.R. heard six or seven gunshots. Afterward, J.R. located
several holes in the vehicle. Neither he nor E.C. were injured.
Officer Greg Yancy received a report around 4:00 p.m. that day of a shooting and
was dispatched to Zumwalt Park. Yancy located two spent bullets and six shell casings at
the park.
2 Going forward, we will refer to the current provision, section 1172.6.
3 Given the specific issues raised here on appeal, we summarize the underlying facts only
briefly.
3.
GPS data showed defendant had visited the house of a Norteño gang member that
day, and that defendant was in the area of the shooting from 3:52 p.m. to 4:02 p.m.
Shootings at J.V.’s Residence
J.V., a Sureño gang member, testified that several4 nighttime shootings occurred at
his residence in December 2015.
On December 1, 2015, Officer Martin Cervantes responded to an address on West
Sonora pursuant to a dispatch reporting “shots fired.” J.V. told Cervantes it was the
third time his house had been shot at that month.5
On December 8, 2015, Officer Eric Trevino reported to the same address on West
Sonora on reports of gunshots heard in the area. On both occasions, Trevino observed
bullet holes to the residence.
GPS placed defendant at the West Sonora address at 12:32 a.m. on December 1,
2015, and near midnight on December 15, 2015.
Incident at A.R.’s Residence
Officer Jeremy Tanck responded to A.R.’s residence on December 4, 2015, for a
possible shooting. When asked if she had made a report to police on December 4, 2015,
at 7:41 a.m., A.R. testified she did not remember exactly when she reported to police that
a shooting occurred in the middle of the night. Tanck spoke with A.R. and saw bullet
holes to the residence and vehicles. Tanck also found three rounds inside the residence,
multiple 9mm casings, and multiple .45 caliber casings. A.R. had “footage” of a vehicle
driving down her street and someone shooting at her house from the passenger side of the
4 Valle later testified that the shootings occurred “probably, like, twice.”
5 Defendant suggests that the residence about which J.V. testified was different than the
Sonora address. However, Cervantes testified the Sonora address was in the area of
“Sacramento and West Sonora.” Cervantes contacted J.V. while responding to the
Sonora address dispatch. The most reasonable inference is that J.V.’s residence “on”
Sacramento and the address on West Sonora refer to the same location.
4.
vehicle. A.R. saw “a few” muzzle flashes from the footage. While A.R. was not in a
gang, she did have friends that were Sureños.
Tanck reviewed the footage of the shooting and believed two guns were being
fired in it. The shots appeared to be coming from the front passenger and rear passenger
side. The footage was timestamped 2:22 a.m.
Defendant’s GPS data indicated he was at the scene between 2:12 a.m. and
2:19 a.m. on December 4, 2015.
Shooting on December 9, 2015
V.M. testified that on December 9, 2015, at about 4:00 p.m., he was with his
brother, R.M., and two friends in a vehicle. They were returning home from a gas station
when they were shot at. V.M. remembered there were victims in the vehicle, but
everything else was “a blur.” Prior to testifying at the evidentiary hearing, V.M. told the
prosecutor he was concerned for his safety and wanted to retract his statement. V.M.
claimed he did not remember seeing a shooter or “the” vehicle. At the hearing, Sergeant
Tony Espinoza testified that he spoke with V.M. on the afternoon in question. V.M. told
Espinoza he had been coming from a 76 gas station and was seated in the front passenger
seat. R.M. and S.V. were also in the vehicle. As they were returning home, a vehicle
turned next to them and its front passenger leaned out of the window and began shooting.
V.M. described the front passenger as a Hispanic male in his late teens or early 20s with
long hair in a ponytail and a light complexion. The description made Espinoza
immediately think of defendant.
V.M. told Espinoza his brother was gang affiliated with “southerners.”
Law enforcement located shell casings at the scene. Defendant’s phone contained
a photograph of defendant, “gang signs” associated with specific gangs, and “colors
associated with…the Norteño gang.”
5.
Gang Detective Raymond Guerrero was at a “round table” discussing the case
when defendant’s name “came up.” Law enforcement knew defendant to be a Norteño,
and that he had just been released from prison where he was a gang registrant.
Guerrero viewed video from a smoke shop that showed defendant entering the
front passenger seat of a silver car. Video from the gas station showed the same car
arriving. There was someone in the passenger seat whom, based on the smoke shop
video, Guerrero believed was defendant. The driver of the car, I.R., went into the gas
station and engaged in some form of back-and-forth communication with two of the
eventual shooting victims. The victims left in a white car, and I.R. drove the silver car
following behind them.
Defendant’s GPS data placed him in the area of the December 9 shooting at the
time of dispatch.
Events of December 15, 2015
On December 15, 2015, Detective Michael Melikian responded to a location on
South R Street in Tulare because he heard gunshots. While en route, dispatch advised
that a resident in the area said gunfire had struck his residence at an address on U Street.
When he arrived, two residents said they heard gunshots striking their residence.
Melikian reviewed surveillance footage from one of the residences that was struck
and one nearby. On the footage, Melikian observed a sedan traveling northbound on
Blackstone turn left onto Martin Luther King Street. As the vehicle passed the victim’s
residence, several bright lights consistent with muzzle flashes were emitted from the front
passenger window, then from the rear passenger window.
Melikian collected bullet casings and spent bullets. Melikian located 15 casings,
which were a mix of .40 and .45 caliber.
Defendant’s GPS data showed him a few feet from the U Street address at
12:05 and 12:11 a.m. on December 15, 2015.
6.
At around 12:00 or 12:30 a.m., Sergeant German Barrios responded to an
apartment to conduct surveillance on defendant. Minutes after Barrios arrived, a red
sedan pulled up and four people exited, including defendant. Officers attempted to
contact the group and they ran away. As Barrios chased defendant, he heard an object hit
the ground. After defendant was handcuffed, Barrios went to determine what had caused
the sound. He located a black Hi-Point JHP .45 caliber semiautomatic handgun on the
other side of the fence where defendant was when Barrios heard the noise.
Another officer searched defendant and seized from him a white cell phone and
17 rounds of live .45 caliber ammunition.
At around 3:00 a.m., Melikian located a Smith & Wesson .40 caliber handgun near
the entrance to a cemetery on R street and Blackstone.
Gun and Ballistics Evidence
A .45 caliber Hi-Point handgun and a .40 caliber Smith & Wesson handgun
associated with defendant’s case number were provided to Corey Schroeder, a patent
print examiner with the California Department of Justice. Schroeder found that a latent
print from the .45 caliber Hi-Point handgun was made by defendant’s left thumb.
A criminalist with the Department of Justice named Jessica Winn received
.45 auto, .45 caliber, and 9mm Luger cartridge cases, three firearms, and bullet fragments
associated with defendant’s case. Winn’s examination of the cartridge cases from police
case Nos. 8822, 8475, 8676, 8562 and 8699 led her to conclude they were all fired from
the same firearm. Winn also examined .45 auto cartridge cases from case Nos. 8823 and
8822 and concluded they were all fired from the .45 ACP pistol from case No. 8699.
Winn examined .45 auto cartridge cases from case Nos. 8409 and 8562 and concluded
they were all fired by the .45 auto handgun from case No. 8961.
7.
DISCUSSION
I. Defendant has not Established Sentencing Error
Law
“Effective January 1, 2022, Senate Bill [No.] 567 [(2021–2022 Reg. Sess.) (Senate
Bill 567)] altered the determinate sentencing law by amending section 1170, former
subdivision (b), to make the midterm the presumptive sentence in the absence of
specified circumstances.” (People v. Fugit (2023) 88 Cal.App.5th 981, 995.)
Accordingly, when a statute provides for three possible terms as punishment for a
crime, the court may not impose the upper term unless there are circumstances in
aggravation of the crime. (§ 1170, subd. (b)(1) & (2).) The facts underlying those
circumstances must have been either stipulated to by the defendant or found true beyond
a reasonable doubt by the jury or by the judge in a court trial.6 (§ 1170, subd. (b)(2).)
Background
At defendant’s original sentencing in 2016, well before the passage of Senate
Bill 567, the trial court imposed the upper term of nine years on count 1 (plus additional
time for enhancements).
Before resentencing after his partially successful 1172.6 petition, defendant
requested the trial court not reimpose the upper term on count 1. He emphasized factors
in mitigation: that he was under 26 years of age at the time of the offense (Cal. Rules of
Court, rule 4.423(b)(6)), that application of an enhancement could result in a sentence
over 20 years (id., rule 4.423(b)(10)), and that multiple enhancements were alleged in a
single case (id., rule 4.423(b)(11).) At the resentencing hearing, the court stated the
mitigating factors did not carry much weight with the court. The court said that certain
aggravating factors, such as California Rule of Court, rule 4.421(a)(1), (a)(3), and (a)(8),
6 The only exception to this rule provided by section 1170, subdivision (b) is that a court
may consider the defendant’s prior convictions based on a certified record of conviction
without submitting the prior convictions to a jury. (§ 1170, subd. (b)(3).)
8.
were not proven beyond a reasonable doubt or admitted and would not be considered.
The court stated it could consider defendant’s prior adjudication in juvenile court and that
defendant performed poorly on parole from the Department of Juvenile Justice. The
court concluded the middle term was “appropriate” and imposed it.
Analysis
Defendant argues the trial court imposed the middle term in reliance on
aggravating factors that were not stipulated to by defendant nor proven to a jury. But
defendant cites no authorities establishing this was error, as section 1170 only prevents
imposing the upper term without aggravating circumstances that were stipulated to by
defendant or proven beyond a reasonable doubt. Defendant’s sentence here was the
middle term.
Defendant relies heavily upon cases like People v. Wiley (2025) 17 Cal.5th 1069,
but that case involved imposition of an upper term. In contrast, when the middle term is
applied, appellate courts have held: “The plain language and statutory context of
… section 1170, subdivision (b) are clear the Legislature did not intend to impose
evidentiary or proof requirements or restrictions on the imposition of a middle term
sentence.” (People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1223.)
Consequently, defendant has not established sentencing error here.
II. We Accept the Attorney General’s Concessions and Remand for Consideration of
Assembly Bill 333
Defendant argues, and the Attorney General concedes, that the matter should be
remanded for the resentencing court to consider the impact of Assembly Bill 333 on
defendant’s resentencing with respect to the gang enhancement. Defendant
acknowledges the issue was not raised below, but contends counsel was ineffective due to
that failure. We accept the Attorney General’s concession and will reverse and remand
for consideration of Assembly Bill 333.
9.
However, we will not direct how the trial court must rule on this issue, as we do
not have the benefit of full briefing on the issue.7 While Assembly Bill 333 undoubtedly
“applies” retroactively (People v. Lopez (2025) 17 Cal.5th 388, 392), application of that
law here essentially increases the probability defendant’s gang enhancement is not
supported by substantial evidence.8 (See People v. Rojas (2023) 15 Cal.5th 561, 566–
567 [Assembly Bill 333 narrowed the definitions of criminal street gang, pattern of
criminal activity, and common benefit to a street gang].) The parties have not adequately
briefed here whether a substantial evidence or instructional error challenge to a charge or
enhancement other than the challenged murder, attempted murder, or manslaughter
conviction can be brought in section 1172.6 proceedings.
People v. Lopez, supra, 17 Cal.5th 388, cited by the parties, does not answer this
question. Lopez essentially held that certain convictions are subject to ameliorative
changes in the law such as Assembly Bill 333 because those convictions never became
final due to ongoing litigation of the sentence. Here, however, we are dealing with
convictions that undoubtedly have become final. Finality is the crucial issue, as affirmed
by Lopez itself. (Lopez, at pp. 394–395, 397.)
While section 1172.6 clearly provides the unusual remedy of challenging certain
final convictions of murder, attempted murder, and manslaughter convictions (§ 1172.6,
subd.(d)(3)), and clearly provides that the sentence on all counts (including those other
than the murder, attempted murder, and manslaughter convictions) must be based on
7 Defendant does cite to People v. Trent (2025) 112 Cal.App.5th 251 for the proposition
that a defendant is entitled to retroactive application of ameliorative laws after a
successful petition under section 1172.6. But, again, the fact that Assembly Bill 333
applies to nonfinal judgments is clear and undisputed. The question is whether these
particular proceedings (i.e., § 1172.6) allow for challenges to the convictions (rather than
challenges to the prior sentence made at resentencing) on counts or enhancements other
than murder, attempted murder, or manslaughter.
8 Additionally, defendant’s jury was not instructed under Assembly Bill 333.
10.
present law (§ 1172.6, subd. (d)(1)), it is not immediately clear where in the statute the
Legislature provided the unusual remedy of challenging all of the petitioner’s other
convictions. Allowing such challenges would mean that final convictions completely
separate from the murder, attempted murder, and manslaughter convictions with which
section 1172.6 is principally concerned, would suddenly be subject to complete
relitigation based on all intervening changes in the law. Even if the Legislature is
empowered to do that, we do not immediately see where in the text of the statute it
actually did so. The resentencing court can address these issues in the first instance with
the benefit of full briefing.9
DISPOSITION
The judgment is reversed and remanded for the superior court to consider the
impact of Assembly Bill 333, if any, on defendant’s resentencing. The court must award
defendant 55 days of presentence conduct credits.
GUERRA, J.
WE CONCUR:
FRANSON, Acting P. J.
SNAUFFER, J.
9 On remand, the trial court must award defendant 55 days of presentence conduct
credits. The Attorney General concedes this issue and we accept the concession.
11.