People v. Torres CA5

INTRODUCTION

Appellant Raul Torres appeals from the denial of his Penal Code section 1172.61 resentencing petition at the prima facie stage. Convicted of first degree murder in 2017 based on the shooting of a victim from a vehicle, appellant claims he is potentially eligible for resentencing under section 1172.6 because Assembly Bill No. 333 (2021– 2022 Reg. Sess.) (Assembly Bill 333) affected the gang evidence that would be relevant to the charges. Due to this, and in conjunction with the gang-evidence limiting instruction given to the jury under CALCRIM No. 1403, appellant asserts it is possible the jury convicted him of first degree murder by imputing malice to him solely by virtue of his gang association, and an evidentiary hearing is warranted under these circumstances. Appellant additionally argues denial of his claim at the prima facie stage violates equal protection principles. Finally, and alternatively, appellant argues his appointed counsel’s failure below to raise the issue of Assembly Bill 333 during proceedings in the trial court was constitutionally ineffective assistance of counsel (IAC). The Attorney General disputes that Assembly Bill 333 applies retroactively…