People v. Walkey CA4/1

Filed 11/18/24 P. v. Walkey CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D082790

Plaintiff and Respondent,

v. (Super. Ct. No. CRN8555) FREDERICK WALKEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David G. Brown, Judge. Reversed and remanded. William J. Capriole, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, James M. Toohey and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

Frederick Walkey appeals from an order denying his petition for

resentencing filed pursuant to Penal Code section 1170.951 (now section

1172.6).2 He contends his petition established a prima facie claim for relief requiring the trial court to issue an order to show cause. The People concede the trial court erred in denying Walkey’s petition because the record of conviction does not establish Walkey is ineligible for resentencing relief as a matter of law. We accept the People’s concession and remand the case with directions for the trial court to issue an order to show cause and conduct an evidentiary hearing. I. Factual and Procedural Background In 1983, Frederick Walkey was involved in an incident that resulted in the death of a two-year-old child. In 1984, a jury found Walkey guilty of first degree murder by means of torture (§§ 187, subd. (a), 189, subd. (a)—count 1); and child endangerment (§ 273a, subd. (1)— count 2). The trial court sentenced Walkey to 25 years to life. Walkey appealed, and this Court reduced the defendant’s conviction to second degree murder because the evidence was insufficient to show that he intended to torture his victim. (People v. Walkey (1986) 177 Cal.App.3d 268, 271 (Walkey).) Walkey was resentenced to prison for 15 years to life. In 2022, appellant filed a petition for vacatur of his murder conviction and for resentencing under current section 1172.6. The trial court denied this petition at the prima facie stage, stating that Walkey was not entitled to relief because he was the actual killer.