People v. Schockner CA2/7 ( 2021 )

Filed 4/27/21 P. v. Schockner CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B307351
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA063580-02)
v.
MANFRED SCHOCKNER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gary J. Ferrari, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
___________
Manfred Schockner appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.95.1 No arguable issues were identified by
Schockner’s appointed appellate counsel after her review of the
record. We also have identified no arguable issues after our own
independent review of the record and analysis of the contentions
presented by Schockner in a supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at Schockner’s 2007 trial for the murder of his
wife Lynn established that Schockner had hired Frankie Fidel
Jaramillo to arrange for the crime and, at Schockner’s direction,
Jaramillo hired Nicholas Alexander Harvey to kill Lynn and to
stage the murder to look like it had occurred during a burglary.
Harvey killed Lynn on November 8, 2004 but was taken into
custody by the police as he was attempting to flee. On
September 7, 2007 the jury found Schockner guilty of first degree
murder (§ 187, subd. (a)), and found true the special-
circumstance allegation pursuant to section 190.2,
subdivision (a)(1), that the murder “was intentional and was
carried out, aided and abetted, solicited, requested, assisted by
the defendant for financial gain.” The trial court sentenced
Schockner to an indeterminate state prison term of life without
parole. We affirmed the judgment on appeal. (People v.
Schockner (Nov. 8, 2010, B204578) [nonpub. opn.].)
On June 5, 2020 Schockner, representing himself, filed a
petition for resentencing under section 1170.95 and asked the
superior court to appoint counsel to represent him. In his
petition Schockner asserted his conviction was “based on false
1 Statutory references are to this code.
2
evidence and testimony” and new evidence showed “he lacked
intent for financial gain murder.” According to Schockner, he
“was not present during the killing [and] the prosecution[’s] . . .
theory of motive is compromised by the use of false evidence and
there was no direct evidence shown at trial that [he] instructed or
solicited/induced . . . Jaramillo and Harvey to commit the crime.”
He contended Jaramillo and Harvey had used him as “their
scapegoat.”
The superior court denied the petition on June 22, 2020.
Referring to our opinion affirming Schockner’s murder conviction
on direct appeal, the superior court ruled Schockner “has utterly
and completely failed to meet his burden. It is abundantly clear,
based on the evidence adduced at the trial, that Schockner
instigated, planned, and perpetrated the murder of his wife for
financial gain. To suggest otherwise is mere sophistry.”
Schockner filed a timely notice of appeal.2
DISCUSSION
1. Senate Bill No. 1437, the Section 1170.95 Petition
Procedure and the Right To Counsel
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, eliminated
the natural and probable consequences doctrine as a basis for
finding a defendant guilty of murder (People v. Gentile (2020)
10 Cal.5th 830, 842-843 (Gentile)) and significantly limited the
felony-murder exception to the malice requirement for murder.
(See, e.g., People v. Rodriguez (2020) 58 Cal.App.5th 227, 236,
2 Schockner’s request for judicial notice, filed April 15, 2021,
is denied as unnecessary since all of the items are already
included in the appellate record.
3
review granted Mar. 10, 2021, S266652; People v. Bascomb (2020)
55 Cal.App.5th 1077, 1080.)
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts. The superior court
properly proceeds under subdivision (c) in two steps, “one made
before any briefing to determine whether the petitioner has made
a prima facie showing he or she falls within section 1170.95—
that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; accord, People
v. Soto (2020) 51 Cal.App.5th 1043, 1054, review granted
Sept. 23, 2020, S263939; People v. Drayton (2020) 47 Cal.App.5th
965, 975; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118,
review granted Nov. 10, 2020, S264684 [section 1170.95,
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subdivision (c), contemplates only one prima facie review before
an order to show cause issues].)
As to the first step, we explained in Verdugo, “[B]ecause 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 (§ 1170.95, subd. (a)(1), (2)), 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. Based on a threshold review of these documents, the
court can dismiss any petition filed by an individual who was not
actually convicted of first or second degree murder. The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189.” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review
granted.)
A petitioner is entitled to appointment of counsel, we held,
only if the superior court does not determine he or she is
ineligible for relief as a matter of law at this first subdivision (c)
prima facie review. (Verdugo, supra, 44 Cal.App.5th at p. 332,
review granted; accord, People v. York (2020) 54 Cal.App.5th 250,
262-263, review granted Nov. 18, 2020, S264954; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020,
S260598.) The court in People v. Cooper, supra, 54 Cal.App.5th
106, review granted, disagreed that section 1170.95,
subdivision (c), contemplates two separate steps and held a
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petitioner is entitled to counsel upon the filing of a facially
sufficient petition for relief that requests counsel be appointed.
(Cooper, at p. 123.) We do not find persuasive the Cooper court’s
interpretation of section 1170.95, subdivision (c). Unless we
receive different instructions from the Supreme Court, we adhere
to the analysis set forth in Verdugo and the cases that have
followed it.
2. The Superior Court Properly Ruled Schockner Is
Ineligible for Relief as a Matter of Law
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Schockner on appeal.
After reviewing the record, counsel filed an opening brief raising
no issues. Appointed counsel advised Schockner on March 15,
2021 that he could personally submit any contentions or issues he
wanted the court to consider. We provided a similar notice to
Schockner.
On April 15, 2021 we received a 12-page supplemental brief
from Schockner in which he concedes he was convicted of first
degree murder with a finding the murder was intentionally
committed for financial gain, but argues the superior court erred
by failing to appoint counsel for him based on his filing of a
facially sufficient petition and by summarily denying his petition
on the ground he was ineligible for relief as a matter of law
without providing an opportunity for him to submit evidence not
presented at his trial that he contends would disprove the jury’s
finding he had hired Jaramillo and Harvey to kill his wife.
As discussed, we rejected both of these contentions in
Verdugo, supra, 44 Cal.App.5th 320, review granted. Schockner’s
record of conviction unquestionably established he was convicted
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of first degree murder as a direct aider and abettor, a ground that
remains valid notwithstanding Senate Bill 1437’s amendments to
sections 188 and 189. The superior court properly reviewed the
available record of conviction, including our opinion affirming the
conviction on direct appeal, to determine Schockner was
ineligible for relief as a matter of law and did not err in
summarily denying his petition without appointment of counsel.
Because no cognizable legal issues have been raised by
Schockner’s appellate counsel or by Schockner or identified in our
own independent review of the record, the order denying his
petition for resentencing pursuant to section 1170.95 is affirmed.
(See People v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040,
review granted; see also People v. Serrano (2012) 211 Cal.App.4th
496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Schockner’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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