People v. Torres CA3

Filed 11/16/15 P. v. Torres CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078058

Plaintiff and Respondent, (Super. Ct. No. 08F05656)

v.

JAIME TORRES,

Defendant and Appellant.

Defendant Jaime Torres was charged (along with Sergio Torres, Jose Gonzalez, and several others) with murdering Jose Guerrero in May 2008. A jury found defendant guilty of first degree murder and found true gang and firearm enhancement allegations. The trial court sentenced defendant to 50 years to life in state prison. Defendant filed his first appeal contending, among other things, that the jury instructions were erroneous because they did not allow the jury to consider whether he might have been guilty of only second degree murder under the natural and probable

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consequence doctrine. (People v. Torres (Feb. 18, 2014, C069510) [nonpub. opn.] at pp. 1-2.) This court agreed that the jury instructions were erroneous and, consistent with prior decisions on the issue (including People v. Woods (1992) 8 Cal.App.4th 1570 and People v. Chiu (2014) 59 Cal.4th 155), we reversed defendant’s conviction and remanded for retrial or for the People to accept reduction of the conviction to second degree murder.1 (People v. Torres, supra, at pp. 9, 35-36.) The People elected not to seek retrial and instead accepted reduction of defendant’s conviction to second degree murder. The trial court accepted the remittitur as a modification of the judgment to reflect a conviction for second degree murder, and resentenced defendant to 40 years to life in state prison (15 years to life for second degree murder, plus a consecutive term of 25 years to life for the firearm enhancement, and no sentence for the gang enhancement). In response to defendant’s motion to recall the sentence for lack of written notice, the trial court held a subsequent hearing where it again resentenced defendant to 40 years to life in state prison. Defendant filed his second appeal, challenging the trial court’s resentencing and claiming the appropriate remedy on remand is a new trial on the murder charge in order to avoid a violation of his Sixth and Fourteenth Amendment rights to a jury trial and due process. We affirm. FACTUAL AND PROCEDURAL BACKGROUND We dispense with a detailed recitation of the facts, as they are unnecessary to our resolution of this appeal. As set forth in our earlier unpublished opinion, the facts and procedural history are summarized as follows: