Filed 6/25/21 P. v. Torricellas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077815
Plaintiff and Respondent,
v. (Super. Ct. No. CR72156)
THERESA TORRICELLAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
Laura P. Gordon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Alan L. Amann and A. Natasha Cortina, Deputy Attorneys General, for
Plaintiff and Respondent.
An information filed on January 23, 1985, charged defendant Theresa
Torricellas and codefendant Daniel McGinnis with murder (Pen. Code,1
§ 187, subd. (a); count 1) and robbery (§ 211; count 2). The information
additionally alleged arming and gun-use enhancements as to both counts.
(§§ 12022, subd. (a) & 12022.5, respectively.) In March 1985, defendant
entered a guilty plea to second degree murder and admitted the arming
enhancement in exchange for a maximum sentencing exposure of 16 years to
life and dismissal of the robbery count and personal gun-use enhancement.
The court at the April 1985 sentencing followed the terms of the plea and
sentenced defendant to 15 years to life plus one year for the arming
enhancement, for a total term of 16 years to life in prison.
In January 2019, defendant filed a pro. per. petition to vacate her
murder conviction pursuant to section 1170.95 (hereinafter, Petition). After
further briefing from the parties, the court on July 8, 2020, summarily denied
defendant’s Petition without issuing an order to show cause (OSC), finding
defendant was statutorily ineligible for section 1170.95 relief. We affirm.
OVERVIEW
On or about November 8, 1984, defendant met Paul Vernon Henry at a
motel where the father of codefendant McGinnis was staying. Henry owed
McGinnis money and the three went to the bank in Henry’s car. At an ATM
machine, defendant used Henry’s bankcard to withdraw $200. Defendant
saw from the bank receipt that Henry had more money in his account. She
passed this information on to McGinnis.
After stopping back at the motel, the three drove to Mission Valley.
Defendant selected Mission Valley because it was not a place that would
draw attention if “you’re going to do it.” She had in mind that Henry was
1 All further statutory references are to the Penal Code.
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going to be killed. Defendant sat behind Henry, who was in the front
passenger seat. She held a 12-gauge shotgun pointed at Henry’s back.
McGinnis made clear to Henry that the gun would be used if he did not do
what he was told.
At a remote location in Mission Valley, McGinnis, who now held the
shotgun, ordered Henry out of the car. Defendant also got out and looked to
see if anyone was around. Defendant asked McGinnis if he wanted her to
shoot Henry. She said that she walked away and heard the shotgun, then
returned. Defendant and McGinnis fled to Mexico together, where they were
ultimately arrested. Following her arrest, defendant sent two letters to
McGinnis in which she took credit and blame for the shooting of Henry.2
On January 9, 2019, defendant filed the Petition. The People on
May 26, 2019, filed an initial response to the Petition challenging (1) the
constitutionality of Senate Bill No. 1437 (Sen. Bill 1437), which enacted
section 1170.95, and (2) defendant’s statutory eligibility for resentencing.
After a brief stay of proceedings, defendant, now represented by counsel, on
June 29, 2020 filed a reply to the prosecution’s response. As noted ante, the
court on July 8, 2020, summarily denied defendant’s Petition without issuing
an OSC.
The court in its July 8 order found that, although defendant was not
the actual killer, she “directly aided and abetted the murder and was also ‘a
major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.’
(§ 189, subd. (e).” The court based its finding on the colloquy between
defendant and the court when defendant was initially sentenced, which the
2 We have not considered the content of either letter in determining
defendant’s eligibility for relief under section 1170.95.
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July 8 order detailed as follows: “The record of Petitioner’s plea of guilty to
second degree murder on March 20, 1985, reflects a thorough examination of
Petitioner by the Court with respect to the events surrounding the murder.
Petitioner stated under penalty of perjury that she was aware the shooter
wanted to kill the victim and that they were taking him to a remote location
to kill him. She held the firearm in the car and then gave it to the shooter
knowing the victim would be killed. She also acted as a lookout. Assuming
Petitioner were to testify to all of the allegations contained in her current
declaration [she submitted in support of her Petition], it would nonetheless
be insufficient to negate the statements she made to the Court under oath
during her change of plea. . . . Section 1170.95 provides relief only for those
defendants who suffer a murder conviction based on a theory of murder that
is no longer permitted. It is not an opportunity to use the statute to allege a
basis for withdrawal of a plea, to allege incompetence of counsel, or to
otherwise appeal the conviction years after such opportunity has passed.”
DISCUSSION
A. Guiding Principles
Effective January 1, 2019, Sen. Bill 1437 was enacted to “amend the
felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It
accomplished this by amending section 188, which defines malice, to add a
requirement that all principals to a murder must act with express or implied
malice to be convicted of that crime. To accomplish these goals, Sen. Bill
1437 redefined “malice” in section 188, and narrowed the classes of persons
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liable for felony murder under section 189. (Stats. 2018, ch. 1015, §§ 2–3.)
Hereafter, in order to be convicted of felony murder, a defendant who was
neither the actual killer nor a direct aider and abettor to the murder must
have been a major participant in the underlying felony who acted with
reckless indifference to human life. (§ 189, subd. (e)(3); People v. Martinez
(2019) 31 Cal.App.5th 719, 723.)
Sen. Bill 1437 also established a procedure for the defendants
previously convicted of murder to seek resentencing if they believe they could
not currently be convicted of that crime under the amended provisions of
sections 188 and 189. (Sen. Bill 1437, § 4 [enacting newly codified section
1170.95].) Thus, section 1170.95 allows those “convicted of felony murder or
murder under a natural and probable consequences theory . . . [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining
counts . . . .” (§ 1170.95, subd. (a).)
In its initial review of whether a petitioner has made a threshold
showing that he or she falls within the provisions of section 1170.95, the
court examines whether the petitioner has stated eligibility for relief. A
petitioner must allege: (1) an accusatory pleading was filed against him or
her allowing prosecution under the felony murder rule or the natural and
probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she was
convicted of first or second degree murder following a trial, or pleaded guilty
to first or second degree murder in lieu of a trial at which he or she could
have been so convicted (id., subd. (a)(2)); and (3) he or she could not today be
convicted of first or second degree murder because of the 2019 amendments
to sections 188 and 189 (id., subd. (a)(3)).
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If the petitioner meets this facial showing of eligibility, the court must
appoint counsel and entertain briefing from the prosecutor and appointed
counsel. If, after briefing, the petitioner has established a prima facie case he
or she is entitled to relief, i.e., if a showing regarding his or her eligibility has
been made, the court must issue an OSC, and thereafter hold a full hearing
to determine whether the petitioner is entitled to relief. (§ 1170.95, subds. (c)
& (d)(1).)
We apply a de novo standard of review to a trial court’s denial of a
defendant’s section 1170.95 petition. (People v. Verdugo (2020) 44
Cal.App.5th 320, 328, fn. 8 (Verdugo), review granted Mar. 18, 2020,
S260493; cf. People v. Blackburn (2015) 61 Cal.4th 1113, 1123 [statutory
construction questions are reviewed de novo].)
B. Analysis
We independently conclude defendant is statutorily ineligible for relief
under section 1170.95, subdivision (a)(3). Defendant admitted under oath
during questioning by the court at her plea colloquy that she: (1) set in
motion the plan to murder Henry by telling McGinnis that Henry had money
remaining in his bank account, after she made the cash withdrawal from his
account; (2) suggested McGinnis drive to what was then a remote location in
Mission Valley “[b]ecause [she] felt like, well, if you’re going to do it, you
know, at least go someplace not to draw attention”; (3) knew when they drove
to Mission Valley that Henry “was going to be killed” for his money; (4) sat in
the backseat of the car directly behind Henry and pointed a shotgun at his
back, as the three of them traveled in Henry’s car to Mission Valley; (5)
offered to shoot Henry herself, as she admitted to the court she asked
McGinnis “if he wanted [her] to do it”; (6) ensured when they stopped the car
there was nobody around and otherwise acted as a lookout while McGinnis
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killed Henry with the shotgun; and (7) fled with McGinnis to Mexico after
they killed Henry.
These statements by defendant show that, although she was not
Henry’s actual killer, “with the intent to kill [she] aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree” (§ 189, subd. (e)(2), italics added);
and/or she “was a major participant in the underlying felony and acted with
reckless indifference to human life . . . .” (Id., subd. (e)(3); see Sen. Bill 1437,
§ 1, subd. (g) [providing a “conviction for murder requires that a person act
with malice aforethought” and a “person’s culpability for murder must be
premised upon that person’s own actions and subjective mens rea”].)
We further conclude it was proper for the court to consider defendant’s
statements in deciding eligibility, or lack thereof, under section 1170.95, as
they were part of the factual basis documentation. (See Verdugo, supra, 44
Cal.App.5th at pp. 329–330 [noting that, “because a petitioner is not eligible
for relief under section 1170.95 unless he or she was convicted of first or
second degree murder based on a charging document that permitted the
prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine [citation], the court must at least
examine the complaint, information or indictment filed against the
petitioner; the verdict form or factual basis documentation for a negotiated
plea; and the abstract of judgment”]; People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [noting a court
may deny a section 1170.95 petition without appointing counsel where
petitioner is indisputably ineligible for relief as a direct perpetrator of second
degree murder]; People v. Lewis (2020) 43 Cal.App.5th 1128, review granted,
Mar. 18, 2020, S260598 [concluding record, including prior appellate court
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opinion, was sufficient to determine a direct aider and abettor theory of
murder liability to exclude petitioner from section 1170.95 eligibility].)
As the People note, defendant urges her statements in connection with
her plea should not be used because they allegedly conflict with the plea form
providing she violated section 187 (second degree murder) and the arming
enhancement in section 12022, subdivision (a) by “participating in a robbery
of Paul Henry; during the course of the robbery Paul Henry was killed by a
shot gun blast.”
However, we independently conclude there is no conflict. In contrast to
the one-sentence summary statement in the plea form that was bereft of any
detail regarding the circumstances of Henry’s murder, defendant answered
questions from the court while under oath that, as summarized ante,
established she aided and abetted in the murder with the intent to kill,
and/or was a major participant in the underlying felony and acted with
reckless indifference to human life.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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