People v. Schumann CA4/2 ( 2021 )

Filed 3/2/21 P. v. Schumann CA4/2
See Concurring Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074167
v. (Super.Ct.No. FSB032415)
KATHERINE SCHUMANN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone,
Judge. Reversed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jason Anderson, District Attorney and James R. Secord, Deputy District Attorney
for Plaintiff and Respondent.
1
In 2004, defendant Katherine Schumann, along with codefendant Gregory Vance,
Jr., was convicted of murder (Pen. Code,1 §187, subd. (a)) under the felony-murder
doctrine, after both entered the residence of the victim, via separate access points, for the
purpose of stealing money. In 2019, following the passage of Senate Bill No. 1437
(2017-2018 Reg. Sess.) and the enactment of section 1170.95, defendant petitioned for
resentencing. The trial court denied the petition on the ground that section 1170.95 was
enacted pursuant to legislation that attempted to amend or modify statutory provisions
enacted pursuant to citizen initiatives, specifically Proposition 7, passed by voters in
1978, and Proposition 115, passed by voters in 1990, in violation of article II, section 10,
subdivision (c) of the California Constitution. Defendant appealed.
On appeal, defendant argues that Senate Bill No. 1437 was not an unconstitutional
amendment of Propositions 7 or 115. We reverse.
BACKGROUND
We summarize the facts from our prior opinion in People v. Schumann (Aug. 4,
2006, E036689 [nonpub. opn.]) from the direct appeal, affirming the defendant’s
conviction, editing for brevity.
Gregory Vance and his girlfriend, defendant Katherine Schumann, were involved
in a counterfeit check-cashing scheme with the murder and burglary victim, Ellis, and
three others, Daniels, James, and Fanning. The scheme involved depositing fraudulent
checks into Ellis’s bank account and withdrawing the cash. Ellis was 59 years old, nearly
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
blind, and used a walking stick. James was Ellis’s caretaker, and introduced Vance and
Schumann to Ellis. At one point, Vance and Schumann discovered that $100 was
missing from the bank account.
On October 23, 2001, at approximately 1:00 a.m., Vance and Schumann
confronted James, Daniels, and Fanning, while the three of them were sitting in Daniels’s
car outside Fanning’s house. Fanning lived across the street from James. Vance broke
the driver’s side window of the car. Vance and Schumann both displayed knives and
demanded to know where their missing money had gone. Daniels, James, and Fanning
each denied knowing about the missing money.
Vance and Schumann then suggested that the group go to Ellis’s house to discuss
the matter. Ellis lived only one street over from Fanning and James. Vance and
Schumann threatened to “fuck [Daniels’s] ass up” if he did not drive them there. They
also said that Ellis “better have [the] money” or they were going to “fuck some people
up,” including Ellis. Schumann specifically said that Ellis better have “her” money or
she was going to “fuck him up.”
Daniels told defendants he did not want to be involved, but he drove defendants to
Ellis’s house. James did not go with them; he went home. After they arrived at Ellis’s
house, Fanning stayed in the car with Daniels while Schumann went up to the front door
and Vance went to the side of the house. Fanning saw Schumann go inside the house,
and heard Vance say from inside the house, “[D]o not mess with me. I told you not to
mess with me.”
3
Ellis called 911 and Vance’s voice was heard on the recording of the call, made at
3:42 a.m. on October 23, 2001. Ellis reported that someone was trying to break into his
house and provided his address. The 911 dispatcher asked Ellis for his name, but there
was no further reply from Ellis. Before the call ended, Vance was heard saying,
“Where’s the money at? Where’s my motherfucking money?”
Not more than 20 minutes later, James, who had heard noises coming from Ellis’s
house, came out of his house and went to check on Ellis. As James approached Ellis’s
house, he saw Vance and Schumann come out of the house and get into Daniels’s car.
Daniels then drove away. James found Ellis’s front door wide open. The house was in
disarray. Objects had been thrown around and pieces of furniture were turned over. Ellis
was slumped over, and his back was soaked with blood. Ellis asked James to call the
police and an ambulance and said, “That bitch got me.” James did not ask Ellis whom he
meant by “that bitch.” James could not find a telephone in Ellis’s house. He went
outside to look for help and flagged down a sheriff’s car.
Meanwhile, Schumann and Vance had jumped back into Daniels’ car. Vance had
a knife in his hand and blood on his jacket, and repeatedly said, “I didn’t have to do the
old man like that.” He also said, “I got fucking blood on my hands.” After they drove
away from Ellis’s house, Schumann threw her and Vance’s knives by a gutter or sewer
drain on Baseline Street, and got out of the car near Fairfax Street.
Ellis had a laceration on the right eyelid area and two stab wounds in his left lower
back. The stab wounds punctured his left lung and chest and caused his death. He was
4
pronounced dead at 4:13 a.m. Police determined that the point of entry into Ellis’s house
was the side window. The screen was on the ground and the window was open. Daniels
directed a detective to a drainage ditch near Baseline Street, where a knife and a broken
knife handle were recovered. DNA analysis revealed that Ellis’s blood was on the knife.
Ellis’s blood was also found on the black jacket that Vance was wearing that night.
Vance was arrested on October 25, 2001. In a videotaped, October 25 police
interview, Vance denied killing Ellis. He admitted punching Ellis, but said that
Schumann killed Ellis. In a subsequent videotaped police interview on October 26,
Vance admitted he stabbed Ellis twice in the back. At trial, Schumann’s jury was
instructed to consider the October 25 videotaped interview for the sole purpose of
showing Vance’s “demeanor during the interview, and the conduct of the detectives in
questioning Vance.”2
Schumann testified that she was not interested in any of the missing money, but
went with Vance to Fanning’s and Ellis’s houses because Vance wanted her to
accompany him. She said she always carried a knife for protection, and said she
brandished it in front of James only because he frightened her. She denied threatening
anyone, and denied she was using drugs that night. She also denied intending to harm
Ellis or taking anything from his house, or that there was any discussion about harming
Ellis or taking anything from him.
2 Daniels was also charged with murder and burglary, along with Vance and
Schumann. He pled guilty to accessory to murder and two counts of forgery, in exchange
for a maximum sentence of four years four months and his agreement to testify truthfully.
5
After Vance was inside Ellis’s house, Schumann testified she knocked on the door
because she was concerned the police would be called and she wanted to get Vance out of
there. As she approached the house, she heard Ellis saying, “[T]hat’s enough, that’s
enough,” and heard Vance say, “[W]here’s my mother fucking money.” Vance opened
the door, and Schumann stepped one foot inside. Ellis was on his knees in a praying
position, looking at her and not speaking. She asked Vance, “[W]hat the fuck are you
doing?” She thought that Vance had hit Ellis or gotten into a “tussle” with him. She saw
Ellis’s phone on his couch, and pushed a button to turn it off, but it rang back. She told
Vance they needed to get out of there, and they left.
Schumann said she was only in Ellis’s house for about 10 seconds, and never
pulled her knife out in the house. She also did not see Vance pull out a knife, and was
never aware he had one. As they were driving away, she threw her knife out the car
window, together with another knife that Fanning handed to her. She said she wanted to
get rid of her knife and any other “paraphernalia” in the car because she thought Ellis had
called the police. She also said Vance told her to throw both knives out the window. She
did not see any blood on Vance, and did not know Ellis had been stabbed until police
questioned her later on October 23.
DISCUSSION
Defendant appeals the denial of her section 1170.95 petition and argues that
Senate Bill No. 1437, pursuant to which section 1170.95 was enacted, is not
unconstitutional. The People contend Senate Bill No. 1437 unconstitutionally amended
6
sections 188 and 189, directly conflicts with the rights of victims established in
Proposition 7, and improperly invades the separation of the power between the legislature
and the judiciary, urging us to uphold the trial court’s denial of defendant’s
postconviction petition. The People also argue that Senate Bill No. 1437 conflicts with
Marsy’s Law.3 (Prop. 9, 2008.)
Our Supreme Court has granted review in various cases with related issues
concerning Senate Bill No. 1437, but has not yet addressed the particular issue with
which we are currently engaged.4 But it has given rather clear indications as to its
thinking on the issue by denying review and declining to depublish decisions upholding
the statute as constitutional. (See People v. Lamoureux (2019) 42 Cal.App.5th 241[review denied, request for depub. denied]; see also People v. Bucio (2020) 48
Cal.App.5th 300 [review denied, July 8, 2020].)
At the same time, the Supreme Court has granted review and retransferred
extraordinary writ denials to reviewing courts with directions to vacate their denials and
issue orders to show cause to the respondent courts why relief should not be granted.
(See Davidson v. Superior Court, review granted with directions, Oct. 9, 2019, S257384;
3 We grant the People’s unopposed request for judicial notice of the Legislative
Counsel Bureau Letter dated March 12, 2018, concerning Assembly Bill 3104 (2017),
respecting accomplice liability for felony murder.
4 Review was granted in People v. Smith (2020) 49 Cal.App.5th 85 (review
granted July 22, 2020, S262835), but the issues presented there pertain to whether a trial
court may consider the record of conviction in determining whether the petitioner has
made a prima facie case of eligibility for relief under section 1170.95, and at which point
the right to appointed counsel arises under section 1170.95, subdivision (c).
7
Lopez v. Superior Court, review granted with directions, Oct. 9, 2019, S257429; Nelson
v. Superior Court, review granted with directions, Jan. 2, 2020, S259115.)
The other appellate courts that have considered these issues have unanimously
rejected arguments similar to respondent’s, beginning with People v. Lamoureux, supra,
42 Cal.App.5th 241 (review denied, req. for depub. denied); People v. Superior Court
(Gooden) (2019) 42 Cal.App.5th 270, 286 [Fourth Dist., Div. 1]; People v. Solis (2020)
46 Cal.App.5th 762, 784; People v. Cruz (2020) 46 Cal.App.5th 740, 747; accord, People
v. Lopez (2020) 51 Cal.App.5th 589, 594; People v. Johns (2020) 50 Cal.App.5th 46, 54–
55; People v. Alaybue (2020) 51 Cal.App.5th 207, 211; People v. Nash (2020) 52
Cal.App.5th 1041, 1053; see also, People v. Prado (2020) 49 Cal.App.5th 480, 492;
People v. Smith (2020) 49 Cal.App.5th 85, 91–92, review granted July 22, 2020,
S262835; People v. Bucio, supra, 48 Cal.App.5th 300, 306.) The sole exceptions have
been dissents in People v. Lamoureux, supra, 42 Cal.App.5th at page 268 [dis. opn. by
O’Rourke, J.], and People v. Lippert (2020) 53 Cal.App.5th 304, 314 [dis .opn. by
Ramirez, P. J.]. The Supreme Court appears to have endorsed the trend of decisions.
With this backdrop, it would be unreasonable to think there was a possibility that
the Supreme Court would conclude other than that the legislation is constitutional, and it
would not be productive to fight the current. Accordingly, taking guidance from those
decisions that conclude that Senate Bill No. 1437 is constitutional as not conflicting with
Propositions 7, 115, or 9, we follow suit and reverse the trial court’s order denying the
section 1170.95 petition. “Wisdom too often never comes, and so one ought not to reject
8
it merely because it comes late.” (Wolf v. Colorado (1949) 338 U.S. 25, 47 [69 S.Ct.
1359, 1368, 93 L.Ed. 1782, 1795], overruled on a different point in Mapp v. Ohio (1961)
367 U.S. 643, 650-655 [81 S.Ct. 1684, 6 L.Ed.2d 1081].)
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
CODRINGTON
J.
9
[People v. Schumann, E074167]
Slough, J., Concurring.
I am in agreement with the majority, Penal Code section 1437 is constitutional. I
write separately only to express that my agreement is grounded, not on a prognostication
of how the California Supreme Court will likely decide the issue, but rather on the
substantive legal analysis as fully set forth in this division’s published opinions, People v.
Johns (2020) 50 Cal.App.5th 46 (opn. of Slough, J.) and People v. Lippert (2020) 53
Cal.App.5th 304 (opn. of Codrington, J.).
SLOUGH
J.
1