Filed 11/10/22 P. v. Torkelson CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JAMES DAVID TORKELSON,

Defendant and Appellant.

 D078237

 (Super. Ct. No. SCD193624)

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 
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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 specialcircumstance 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 felonymurder 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.