People v. Torkelson CA4/1

Filed 11/30/22 P. v. Torkelson CA4/1
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078237
Plaintiff and Respondent, (Super. Ct. No. SCD193624)
v.
ORDER MODIFYING OPINION
JAMES DAVID TORKELSON, AND DENYING REHEARING
Defendant and Appellant. NO CHANGE IN JUDGEMENT
THE COURT:
It is ordered that the opinion filed herein on November 10, 2022 be
modified as follows:
On page 4, the third sentence of the first full paragraph beginning with
“Several witnesses” is deleted and replaced with the following:
“Several witnesses indicated the robbery was Torkelson’s idea, that
Torkelson was the mastermind behind the plan, and that Torkelson
provided nylon stockings to the group to cover their faces.”
The petition for rehearing is denied.
No change in judgment.
McCONNELL, P. J.
Copies to: All parties
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Filed 11/10/22 P. v. Torkelson CA4/1 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078237
Plaintiff and Respondent,
v. (Super. Ct. No. SCD193624)
JAMES DAVID TORKELSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed and Remanded with Directions.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Appellant and Defendant.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant
Attorney General, Alan Amann and Kristen Kinnaird Chenelia, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2009, a jury convicted James David Torkelson on two counts of
felony first degree murder for his role in an armed robbery in which two
employees were shot and killed. The superior court sentenced him to two
consecutive terms of life in prison without the possibility of parole. Torkelson
filed a petition for resentencing in 2019, following statutory changes that
narrowed the scope of felony-murder liability and authorized resentencing for
those convicted under the prior laws. The superior court concluded he was
ineligible for relief based on felony-murder special-circumstance findings
made by the jury.
Torkelson appealed and, in our initial opinion, we affirmed the superior
court’s order. The Supreme Court of California granted Torkelson’s petition
for review and held the case for its decision in People v. Strong (2022) 13
Cal.5th 698 (Strong). In Strong, the Supreme Court held that a defendant is
not precluded from eligibility for resentencing based on a jury’s true findings
on felony-murder special-circumstance allegations made before it issued its
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), which provided substantial guidance on
the meanings of the phrases “major participant” and “with reckless
indifference to human life” as used in the statute defining the felony-murder
special circumstance. After issuing its opinion in Strong, the Supreme Court
remanded Torkelson’s appeal to us with directions to vacate our opinion and
to reconsider the matter in light of the decision.
In compliance with those directions, we hereby vacate our prior
opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order
denying Torkelson’s resentencing petition and remand the matter for further
proceedings.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Robbery
The following facts regarding the underlying crimes are summarized
from this court’s unpublished opinion in Torkelson’s direct appeal, People v.
James David Torkelson (Feb. 10, 2011, D055104) [nonpub. opn.], in which we
affirmed the judgment of conviction.
Torkelson was terminated from his position as a security guard at a
parking lot near the San Diego airport in July 1999. At about 11:30 p.m. on
July 17, 1999, Torkelson arrived at the lot dressed in his uniform. Two other
security guards questioned Torkelson’s employment status, but Torkelson
assured them that it was okay for them to go home.
Approximately one hour later, a man with a nylon stocking over his
face approached the ticket booth with a gun drawn. He detained the
attendant and emptied the cash register. Two other employees were counting
money from the shift change in a nearby business trailer. The attendant
heard the gunman order someone inside the trailer and, shortly thereafter,
he heard a series of gunshots. The attendant saw the gunman run from the
trailer and meet up with two other men. After calling 911, the attendant
went to the business trailer and confirmed the two employees were dead,
with bullet wounds to the head. Meanwhile, the robbers ran across the street
to another commercial parking lot and stole a getaway vehicle at gunpoint.
Although the police initially suspected Torkelson, they were unable to
identify his accomplices until several years later. In 2002, another
individual, Jeffery Young, admitted that he had killed one of the victims, and
identified Max Anderson as the shooter of the second victim.
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B. Charges, Verdict, and Sentencing
In 2005, Torkelson was charged with two counts of murder, one count
of attempted murder, and carjacking. The prosecutor presented a case based
on felony murder. Several witnesses indicated the robbery was Torkelson’s
idea, that Torkelson was the mastermind behind the plan, and that
Torkelson provided guns to Young and another accomplice. The jury found
Torkelson guilty of both counts of first degree murder and found special-
circumstance allegations that the murders were committed during the
commission of a robbery within the meaning of Penal Code1 section 190.2,
subdivision (a)(17) true as to each count. The superior court sentenced
Torkelson to two consecutive terms of life in prison without the possibility of
parole.
C. Petition for Resentencing
On January 1, 2019, legislation took effect that, among other things,
narrowed the scope of accomplice liability for felony murder by amending
sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The legislation also
added a new statute authorizing those convicted of felony murder to petition
for resentencing if they could not be convicted of that crime under the
amended statutes had they been in effect at the time of the killing. (Former
§ 1170.95, enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch.
551, § 2, and renumbered § 1172.6 by Stats. 2022, ch. 58, § 10.)2
In 2019, Torkelson filed a petition for resentencing pursuant to section
1172.6. The superior court appointed counsel for Torkelson and, after full
1 All further statutory references are to the Penal Code.
2 The amendments are not relevant to this appeal. We cite the current
version of the statute (§ 1172.6) in this opinion even though Torkelson filed
his petition under the former version (§ 1170.95).
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briefing and argument, denied the petition. The court acknowledged that
there was disagreement among the appellate courts regarding the impact of
the jury’s true findings on the felony-murder special-circumstance
allegations, but relied on People v. Galvan (2020) 52 Cal.App.5th 1134(Galvan) and People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez) to conclude
that the jury’s findings made Torkelson ineligible for resentencing under
section 1172.6 as a matter of law.
D. Prior Appellate Proceedings
Torkelson appealed, and this court issued an opinion in which we also
acknowledged the split in appellate court decisions regarding the impact of
the jury’s true findings on the special- circumstance allegations, but
concluded the superior court did not err by relying on Galvan and Gomez to
conclude the findings rendered Torkelson ineligible for resentencing. As
noted, our high court granted review and held Torkelson’s case pending its
decision in Strong, supra, 13 Cal.5th 998. (Supr. Ct. Order filed Aug. 19,
2022, S269769.) And, in Strong, the California Supreme Court held that true
findings on felony-murder special-circumstance allegations do not preclude a
defendant from stating a prima facie case for relief under section 1172.6, so
long as those findings were made before its decisions in Banks and Clark.
(Strong, supra, 13 Cal.5th at p. 721.) After issuing its decision in Strong, the
Court transferred Torkelson’s appeal back to us with directions to vacate our
initial opinion and to reconsider the matter in light of the decision. (Supr. Ct.
Order filed Oct. 19, 2022, S269769.)
II.
DISCUSSION
Following the Supreme Court’s transfer order, the parties submitted
supplemental briefing addressing the impact of the Supreme Court’s decision
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in Strong, supra, 13 Cal.5th 998. As in his original briefing on appeal,
Torkelson contends the superior court erred by summarily denying his
petition for resentencing based on the jury’s true findings on the felony-
murder special-circumstance allegations because those findings were made
before the Supreme Court decided Banks, supra, 61 Cal.4th 788, and Clark,
supra, 63 Cal.4th 522. Although they initially disagreed with Torkelson’s
position, given the Supreme Court’s decision in Strong, supra, 13 Cal.5th 698,
the People now concede that “the trial court’s order summarily denying
appellant’s petition for resentencing under Penal Code section 1172.6 based
on the existence of a pre-Banks/Clark robbery-murder special-circumstance
finding should be reversed and the matter remanded for further proceedings.”
We agree.
In Strong, our Supreme Court held that where, as here, a defendant’s
case “was tried before both Banks and Clark, the special circumstance
findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.)
The Supreme Court reasoned that section 1172.6 requires the petitioner to
make a prima facie showing that he could not be convicted of murder under
the amended versions of sections 188 and 189, and “[a] pre-Banks and Clark
special-circumstance finding does not negate that showing because the
finding alone does not establish that the petitioner is in a class of defendants
who would still be viewed as liable for murder under the current
understanding of the major participant and reckless indifference
requirements.” (Strong, at pp. 717−718.) “This is true even if the trial
evidence would have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001,
1008 [trial court may not deny section 1172.6 petition at prima facie stage
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based on its own determination defendant was major participant in felony
and acted with reckless disregard for human life].) Thus, “[n]either the jury’s
pre-Banks and Clark findings nor a court’s later sufficiency of the evidence
review amounts to the determination section 1172.6 requires, and neither set
of findings supplies a basis to reject an otherwise adequate prima facie
showing and deny issuance of an order to show cause.” (Strong, at p. 720.)
In Torkelson’s case, the jury made its true findings on the special
circumstance allegations more than a decade before the Supreme Court
decided Banks, supra, 61 Cal.4th 788, and Clark, supra, 63 Cal.4th 522.
Under Strong, those findings do not preclude Torkelson from stating a prima
facie case for relief. (Strong, supra, 13 Cal.5th at p. 721.) Torkelson asserts
that he made the requisite threshold prima facie showing for relief in his
petition by alleging that he was convicted under a felony-murder theory, and
that he could not now be convicted based on the changes to sections 188 and
189. The People do not dispute his assertion, and, again, we agree.
Torkelson’s petition alleged the facts necessary for relief under section
1172.6, and the superior court erred by summarily denying his petition based
on the jury’s findings on the special circumstance allegations. We therefore
remand the matter to the superior court with directions to issue an order to
show cause and, to the extent necessary, hold an evidentiary hearing.
(§ 1172.6, subds. (c), (d); Strong, at pp. 708−709; People v. Duchine (2021) 60
Cal.App.5th 798, 816.) We express no opinion on how the court should
ultimately rule on the petition.
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DISPOSITION
The opinion filed on June 9, 2021, is vacated. The order denying the
petition for resentencing under section 1172.6 is reversed. The matter is
remanded to the superior court with directions to issue an order to show
cause and, to the extent necessary, hold an evidentiary hearing.
IRION, J.
WE CONCUR:
McCONNELL, P.J.
BUCHANNAN, J.
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