Filed 6/9/21 P. v. Torkelson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Appellant and Defendant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Deputy
Attorney General, Lynne McGinnis and Kristen Kinnaird Chenelia, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2009, a jury found James David Torkelson guilty of two counts of
first degree murder and found a special circumstance that the murders
occurred during the commission of a robbery true as to each count, among
other charges. (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17).) He was
sentenced to two consecutive terms of life in prison without the possibility of
parole.
In 2019, following changes to the law regarding felony murder,
Torkelson filed a petition for resentencing pursuant to section 1170.95. The
trial court denied the petition and Torkelson appeals. He asserts the trial
court erred by concluding the he was ineligible for relief under section
1170.95 based on the jury’s felony murder special circumstance findings. We
find no error and affirm the trial court’s order denying Torkelson’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Robbery
The following facts regarding the underlying crimes are summarized
from this court’s unpublished opinion in defendant’s direct appeal, People v.
James David Torkelson (Feb. 10, 2011, D055104) [nonpub. opn.] (Torkelson I),
in which we affirmed the judgment of conviction.
In July 1999, Torkelson began working for a security company, City
Events, and was assigned as a security guard at the Five Star Park Shuttle
and Fly (Five Star) parking lot near the San Diego airport. On July 11,
Torkelson was automatically terminated in accordance with company policy
after he failed to show up for a shift without contacting his supervisor.
At about 11:30 p.m. on July 17, 1999, Torkelson arrived at the Five
Star lot dressed in his security guard uniform. Two other security guards,
one ending a shift and one about to take over and start a new shift,
questioned Torkelson’s employment status, but Torkelson assured them that
it was okay for them to go home.
1 All further statutory references are to the Penal Code.
2
Approximately one hour later, a man with a nylon stocking over his
face approached the ticket booth with a gun drawn. The ticket booth
attendant pressed the button on his handheld radio to alert Torkelson of the
situation, but Torkelson did not respond. The gunman then sat in the booth
with his foot on the attendant’s back and emptied the cash register, taking
approximately $100.
Around the same time, two other employees were counting money from
the shift change in a nearby business trailer. The ticket booth attendant
heard the door close on an outside bathroom, and then heard the gunman
order someone inside the trailer. Shortly thereafter, he heard a series of
gunshots. The attendant saw the gunman run from the trailer and meet up
with two other men. A van arrived to pick up one of the workers but made a
U-turn and left because the robbers began shooting at it.
The attendant called 911 and reported the incident. While he was on
the phone, Torkelson ran up and yelled that there were “two down” and
“187.” The attendant handed the phone to Torkelson, and Torkelson told the
operator two people had been shot in the head, but that he had not seen
anything. The attendant went to the business trailer and confirmed 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.
Two days later, on July 19, Torkelson attempted to pick up his final
check from City Events. The receptionist explained that he needed to return
his uniform and equipment, and he became agitated and stated he did not
have them and that they were in Arizona. He left and did not return again.
Although the police initially suspected Torkelson, they were unable to
identify his accomplices until several years later. During a recorded phone
3
call in 2002, Jeffery Young admitted his involvement in the robbery. Young
said the robbery was poorly planned, causing him to be nervous, and that
they had forgotten items they intended to use to tie up their victims. He
admitted that he had panicked and killed one of the victims and identified
Max Anderson as the shooter of the second victim. Young also said that he
and the others had shot at the van while running away.
The Trial
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 at trial, and several witnesses indicated the robbery was
Torkelson’s idea, and that Torkelson was the mastermind behind the plan.
He explained the layout of the facility to the others, informed them that
certain security cameras were not working, and laid out a plan that involved
using the facility’s handheld radios to communicate during the robbery. He
told the others there would be one attendant in the parking booth and a night
manager inside the office trailer with the safe open to count the money from
the prior shifts. They planned cut the phone lines and use duct tape to tie up
the victims. Prior to the robbery, Anderson provided guns to Young and
another accomplice and Torkelson gave the group nylon stockings to cover
their faces.
At the conclusion of the trial, the court instructed the jury on felony
murder and the special circumstance of murder during the commission of a
robbery. Of particular relevance here, the court used CALJIC 8.81.17 and
stated:
“Murder committed during the commission of a robbery.
“. . . If you find the defendant was not the actual killer of a
human being, you cannot find this special circumstance to be true
unless you are satisfied beyond a reasonable doubt that such
4
defendant with the intent to kill or with the reckless indifference to
human life as a major participant, aided, abetted, counselled,
commanded, induced, solicited, requested or assisted in the
commission of the crime of robbery which resulted in the death of
[the victims].
“A defendant acts with reckless indifference to human life when
the defendant knows or is aware that his acts involve a grave risk
of death to innocent human beings.” (Emphasis added.)
The jury found Torkelson guilty of both counts of first degree murder
and found the special circumstance of murder during the commission of a
robbery within the meaning of section 190.2, subdivision (a)(17) true as to
each count. Torkelson was sentenced to two consecutive terms of life in
prison without the possibility of parole.
The Petition for Resentencing
In 2019, Torkelson filed a petition for resentencing pursuant to section
1170.95. The trial court appointed counsel for Torkelson and, after full
briefing and argument, denied the petition. Relying on People v. Galvan
(2020) 52 Cal.App.5th 1134 (Galvan) and People v. Gomez (2020) 52
Cal.App.5th 1 (Gomez), the trial court found that Torkelson was ineligible for
resentencing pursuant to 1170.95 based on the special circumstance findings.
Torkelson appeals.
DISCUSSION
I. Applicable Law
"In 2018, the Legislature passed and the Governor signed into
law Senate Bill No. 1437 . . . (Senate Bill 1437), legislation that prospectively
amended the mens rea requirements for the offense of murder and restricted
the circumstances under which a person can be liable for murder under the
felony-murder rule or the natural and probable consequences doctrine.
5
(Stats.2018, ch.1015.)" (People v. Superior Court (Gooden) (2019) 42
Cal.App.5th 270, 274.)
As relevant here, Senate Bill No. 1437 amended sections 188 and 189 to
"prohibit a participant in the perpetration or attempted perpetration of one of
the specified first degree murder felonies in which a death occurs from being
liable for murder, unless the person was the actual killer or the person was
not the actual killer but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer, or the
person was a major participant in the underlying felony and acted with
reckless indifference to human life . . . ." (Legis. Counsel's Dig., Sen. Bill No.
1437 (2017–2018 Reg. Sess.).)
In addition, Senate Bill No. 1437 also added section 1170.95, which
creates a procedure for a defendant who was prosecuted under a theory of
first-degree felony murder, or natural and probable consequences, but who
could no longer be convicted of murder because of the changes made to
sections 188 and 189 to petition to vacate the murder conviction, and for
resentencing on any remaining counts. (Sen. Bill No. 1437 (2017–2018 Reg.
Sess.) § 4; Gooden, supra, 42 Cal.App.5th at p. 274.)
Pursuant to section 1170.95, if a petitioner has made a prima facie
showing that the prosecution proceeded under a felony murder theory, the
jury convicted the petitioner of first or second degree murder, and the
petitioner could not be convicted of first or second degree murder in light of
changes to sections 188 or 189, the trial court shall appoint counsel to
represent the petitioner and accept briefing. (See § 1170.95, subd. (c); People
v. Verdugo (2020) 44 Cal.App.5th 320, 327–328 (Verdugo), review granted
Mar. 18, 2020, S260493.) After briefing, the court makes a “second prima
facie review.” (Id. at p. 328.) “ ‘[T]he court takes petitioner's factual
6
allegations as true and makes a preliminary assessment regarding whether
the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.’ ” (Ibid.;
§ 1170.95, subd. (c).)
II. Analysis
Here, the trial court appointed counsel and accepted briefing but
denied the petition on a “second prima facie review” without issuing an order
to show cause. Torkelson asserts the trial court erred when it concluded the
jury’s previous felony murder special circumstance finding made him
ineligible for relief under section 1170.95.
There is no dispute that Torkelson was not the actual killer, and that
he was convicted of first degree murder based on a felony murder theory.
Following the amendments to sections 188 and 189 effectuated by Senate
Bill No. 1437, Torkelson could be convicted under such a theory only if the
jury found he, “with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] . . . [or he] was a major participant in the
underlying [robbery] and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 188, subd. (a)(3); § 189, subd.
(e)(2), (3).)
In finding the felony murder special circumstance true, the jury
necessarily found Torkelson “with the intent to kill or with the reckless
indifference to human life as a major participant, aided, abetted, counselled,
commanded, induced, solicited, requested or assisted in the commission of the
crime of robbery which resulted in the death[s].” As that finding satisfies the
requirements of the law as amended, the trial court correctly concluded
Torkelson was ineligible for relief under section 1170.95. (See Galvan, supra,
7
52 Cal.App.5th 1134; Gomez, supra, 52 Cal.App.5th 1; see also People v.
Nunez (2020) 57 Cal.App.5th 78, review granted Jan. 13, 2021, S265918;
People v. Jones (2020) 56 Cal.App.5th 474, 479–485, review granted Jan. 27,
2021, S265854; People v. Allison (2020) 55 Cal.App.5th 449, 457 (Allison);
People v. Murillo (2020) 54 Cal.App.5th 160, 168–169, review granted Nov.
18, 2020, S264978 (Murillo); People v. Gutierrez-Salazar (2019) 38
Cal.App.5th 411, 419–420.)
Torkelson asks us to reject the reasoning in Galvan and Gomez, which
the trial court relied on, and to instead follow the alternate analysis set forth
in People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011 (Torres). (See also People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250,
review granted Nov. 18, 2020, S264954; People v. Law (2020) 48 Cal.App.5th
811, review granted July 8, 2020, S262490.) In Torres, the court found
special circumstance findings were not sufficient to make the petitioner
ineligible for relief under section 1170.95 where the findings were made
before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522, because, in those cases, the California Supreme Court narrowed
the meaning of the key terms “major participant” and “reckless indifference”
as used in section 190.2. (Torres, at p. 1179.)
The trial court acknowledged Torres, and other cases following the
same reasoning, but “made the decision to follow the appellate opinion
emanating from its own appellate district.” We find no error in that decision,
and also elect to follow Galvan and Gomez.2
2 We note that both Galvan, supra, 52 Cal.App.5th 1134, and Gomez,
supra, 52 Cal.App.5th 1 were decided after Torres, supra, 46 Cal.App.5th
1168, and the court in Galvan directly addresses the conflict between Gomez
and Torres. (See Galvan, supra, at p. 1141.)
8
Torkelson asserts Galvan and Gomez were wrongly decided in two
ways. First, he asserts the courts incorrectly concluded that holding an
evidentiary hearing in cases such as this—where the jury made a special
circumstance finding prior to Banks and Clark—would require the
prosecution to prove the special circumstance beyond a reasonable doubt a
second time. (See Galvan, supra, 52 Cal.App.5th at p. 1143.) He argues, to
the contrary, that in such cases the prosecutor has not previously proven the
defendant was a major participant who acted with reckless indifference as
those terms are now defined. However, even assuming, without deciding,
that Banks and Clark materially changed the meaning of those terms, the
appropriate procedure to address any inconsistencies in that regard is
through a writ of habeas corpus. (Galvan, supra, at pp. 1142–1143; Murillo,
supra, 54 Cal.App.5th at p. 168; see also Allison, supra, 55 Cal.App.5th at pp.
458–459 [explaining Banks and Clark merely clarified previously existing
legal principles].)
Torkelson concedes that he could pursue his argument regarding the
felony-murder special circumstance through a writ of habeas corpus but
argues he should be permitted to do the same through the section 1170.95
petition as well, as section 1170.95 allows him to challenge the murder
conviction itself, and not just the special circumstance. However, as
discussed in Galvan, section 1170.95 allows a petitioner to petition for a
vacation of conviction based on the changes to section 188 and 189
implemented by Senate Bill No. 1437, and not based on other changes to the
law. (Galvan, supra, 52 Cal.App.5th at p. 1142.) As Torkelson further
concedes, if he were to successfully reverse the special circumstance finding
by way of a habeas proceeding, he could then file a section 1170.95 petition to
9
reverse the murder conviction. He asserts he should not have to file two
separate proceedings, but that is the procedure the legislature has provided.
Second, Torkelson argues the legislature anticipated the holdings in
Galvan and Gomez and signaled a special circumstance finding would not
preclude eligibility under 1170.95 when it stated, where “the prosecution fails
to sustain its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and the petitioner
shall be resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3),
emphasis added.) This language does not address the impact of special
circumstance findings on the eligibility for relief in the first instance, and
instead speaks to the procedure for resentencing if the petition is granted.
Torkelson further points out that section 1170.95, subdivision (d)(2)
directs vacatur of a conviction and resentencing if there was a prior finding
by a court or jury that the petitioner did not act with reckless indifference to
human life or was not a major participant. Again, this language addresses a
different scenario than the one at hand. Moreover, although the legislature
was certainly aware of the relevant holdings in Banks and Clark, it made no
attempt to distinguish the terms “reckless indifference” or “major
participant” based on those holdings. If anything, this language supports the
reasoning in Galvan indicating a defendant must pursue issues based on the
holdings in Banks and Clark through a habeas proceeding, as opposed to a
section 1170.95 petition.
In sum, we are not persuaded by Torkelson’s arguments. Like the trial
court, we acknowledge the split between the Galvan and Torres lines of cases
but, in the absence of further guidance from a higher court, we continue to
follow the reasoning and conclusions set forth in Galvan and Gomez.
10
DISPOSITION
The order of the trial court denying defendant’s section 1170.95 petition
for resentencing is affirmed.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
11