By Macy Lu
SACRAMENTO – In an appeal decision rendered this past week—but related to a sentence made nearly 13 years ago—Judge Kevin J. McCormick ruled that defendant Jaime Torres should still be sentenced to 40 years in jail for second degree murder in a 2008 gang-orchestrated homicide case.
Even though Torres didn’t participate in or approve of the murder.
Torres was petitioning for re-sentencing under Senate Bill 1437, which argues second degree murder liability is eliminated in certain circumstances when the defendant was not directly in involved in the murder.
According to the facts of the case, the confrontation occurred after Torres and members of his gang, the Norteños, caught wind that a potential member of a rival gang, the Sureños, were living in Norteños territory.
While the victim and his family gathered on Memorial Day at his house, Torres approached the house, wearing a signature Norteños red bandanna and shouting for the victim to “bring the scraps out” as well as various other provocative gang slurs. The victim then called the police, causing the defendant to “brandish the gun and then…turn to leave.”
When the victim “grab[ed] Jaime Torres to make him stay for the cops,” a physical struggle ensued during which the defendant “pistol [whipped] [the victim] in the head.” Eventually, the gun [was] knocked from [the defendant]” and another gang member, Jose Gonzalez, picks up and shoots [the victim].”
Deputy District Attorney Greg Porter opened with a reminder that the petitioner’s brief “concedes that under a ‘but for causation test’ Mr. Torres was a cause of the victim’s death, 
indicating that had it not been for Torres’s words and actions, the victim might still be alive.
He added that a jury “has unanimously found…that this defendant did commit the crime of challenging someone to fight and that…murder was the natural and probable consequence of the fight. That test was an objective test.”
As the hearing proceeded, it became clear that the issue of the defendant’s “subjective mental state” before, during, and after the homicide would be the equivocal issue on the table.
While Assistant Public Defender John Stoller argued that Porter was “conflating implied malice with the natural and probable cause doctrine” in the petition, Porter claimed that he recognizes their distinction, that the former is “subjective” while the latter “is not.”
Porter further contended that “the defendant did harbor the necessary mental state “because the evidence showed that Jaime understood…the threat of a gang challenge” when he approached the victim’s home and began brandishing his firearm. “It did not take much for him to encourage…his long-time friend and gang member to actually pull the trigger” for him.
DA Stoller opened his argument by reminding Judge McCormick that “accomplice liability is met where…the defendant knew the perpetrator intended to commit the crime…during the committing of the crime the defendant intended to aid and abet the perpetrator.”
Stoller added there is no evidence Torres’ words and conduct disclosed his premeditated intention to aid the perpetrator by making such comments such as “shoot this guy…get this guy off me.” He stressed that Torres did not even “look at the shooter and make a signal to him” and that it is questionable whether Torres even saw the shooter during the physical struggle.
Without such evidence, Stoller argues, the prosecution’s argument did not “meet the elements of accomplice liability.”
When he attempted to claim that “it is not conceded that Jaime Torres is the ‘but for’ causation,” Judge McCormick interjected saying, “he is a ‘but for’ causation in reality because he brought the gun.”
In rebuttal, Stoller remarks “that is not the test for malice” because simply bringing the gun does not prove an intention to murder.
Judge McCormick then highlighted that despite the fact there was no direct statement of a murderous intent and “they were a driving Watson murder waiting to happen.”
McCormick was referring to People v. Watson, that found that a person who is warned of the dangers of DUI by a court but who still decides to commit the crime at a later time can be charged with second degree murder given their foreknowledge of the deadly consequences of their conduct.
“That is wrong,” Stoller flatly replied. “Mr. Torres has to harbor the awareness of…the high probability of death” in order for the conditions in Watson to apply to this case. The prosecution’s evidence, he claimed, failed to demonstrate that awareness.
In his response to Stoller’s assertions, Porter underscored that while it is possible “Mr. Torres didn’t know that someone was going to use the gun to kill somebody…but that is not required for implied malice murder liability.”
Regarding the counterargument that there is overlap between the natural, probable cause and implied malice evidence, Porter pointed to People v. Gentile.
“There was an amicus brief from the San Diego District Attorney’s Office that was arguing…we should have a hybrid natural probable consequence doctrine…whereby the doctrine still operates but now we just need to prove the additional element of malice on top of the natural and probable.”
The CA Supreme Court rejected the amicus argument that “without the hybrid doctrine these defendants would get away with murder.”
Porter finished this segment of his response with the argument that someone such as Torres “can still be convicted of second degree murder if the person knows his or her conduct endangers the life of another and acts with conscious disregard for life.”
Later, he spotlighted the ultimate cause of the homicide–Torres’ friend picking up the gun and actually shooting the victim. “[Torres] set in motion…a causality that results in death” when he engaged in a physical struggle with the victim. “Are we going to say the intervening cause is so unforeseeable that it absolves the ‘but for’ causation?”
To refute Porter, Stoller drew in the case of People v. Lopez, in which one gang member urged the gang to hold a “vote of no good,” which as Stoller pointed out “makes the former gang member subject to being killed…basically at any time.”
He added, “[The court] said no, the shooting of Frosty (the victim) was a dependent cause…on the plan of malice that was already proven…and it was all part of the plan. We knew it would happen.”
Stoller’s point was that Lopez’s death resulted in actuality from the vote of no good, not only from the fight itself since the vote was essentially a deliberate “death warrant.”
Unlike Lopez’s case, neither Torres’ struggle with the victim nor his friend’s shooting was proven to be premeditated with the explicit intent to kill in mind, Stoller maintained.
Consequently, Stoller notes, Torres’ possession of a gun during the fight should not equal the seriousness of an explicit death warrant to the victim.
Macy is a junior from Orange County, CA studying Communications and English at UC Davis. She loves meeting people, reading books, and writing creatively.
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