People v. Schaefer CA2/8

Filed 9/1/21 P. v. Schaefer CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307657
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA223640)
v.
DANIEL SCHAEFER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Reversed and
remanded.
Brett Harding Duxbury, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
In 2003, a jury convicted appellant Daniel Schaefer of
second degree felony murder in addition to other offenses related
to manufacturing methamphetamine and possessing firearms.
This court affirmed the judgment of conviction. (People v.
Schaefer (May 17, 2004, B166733) [nonpub. opn.].) In 2019,
appellant filed a petition pursuant to Penal Code1 section 1170.95
requesting that his murder conviction be vacated. After issuing
an order to show cause and holding an evidentiary hearing, the
trial court denied the petition. The trial court found that the jury
could have convicted appellant of second degree murder on a
theory of implied malice. Appellant contends the trial court
employed the wrong standard in denying his petition. We agree
and remand the case to the trial court to conduct a new hearing.
BACKGROUND
The facts underlying the murder conviction are not
complicated. Appellant and Monica Reynoso got together at
Reynoso’s apartment to manufacture methamphetamine. An
explosion occurred and both were serious burned. Reynoso died
one month later from her injuries. At trial, the prosecutor
proceeded, and the jury was instructed, on a theory of felony
murder only. The jury convicted appellant, who was sentenced to
15 years to life on the second degree murder conviction.
In 2019, appellant filed a petition pursuant to
section 1170.95. He alleged he was entitled to relief because he
was convicted under the felony murder doctrine, which Senate
Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) had
abrogated with certain exceptions not raised by the parties here.
1 Further undesignated statutory references are to the Penal
Code.
2
The trial court appointed counsel for appellant and found he had
made a prima facie case of eligibility for relief. On August 27,
2020, the trial court held an evidentiary hearing where the
People introduced the trial record into evidence and appellant
testified on his own behalf.
After entertaining argument, the trial court concluded
appellant was not entitled to relief and denied his petition. The
trial court stated its reasons: “I do think on the basis of the
record and—even though the prosecution didn’t rely on the
implied malice theory at the time of the trial, I think that they
nonetheless presented the evidence during the course of the trial
through the expert testimony and through the testimony of Miss
Escarra and others, that they could have; there was enough there
to do it. And I think that the jury certainly could have convicted
him beyond a reasonable doubt on that theory, and still can. [¶]
The only thing that really bothers me and still bothers me a bit is
the idea that they made that election—the People made that
election at the time. But again, the defense has used the motive
that the D.A. assessed that she could not obtain a conviction on
that theory. And I say that we don’t know why she did it,
whether that was her assessment or whether she just decided to
keep it simple for the jury. And I tend to think the latter. [¶]
But either way, I think on the basis of what actually was
presented, that she could have relied on that theory, and the jury
could have convicted beyond a reasonable doubt. [¶] . . . And my
ruling is that I’m denying the petition at this time.”
This appeal followed.
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DISCUSSION
A. Relevant Law
The Legislature passed Senate Bill 1437 in 2018 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).)
Senate Bill 1437 amended section 188 to require that a principal
“shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
Senate Bill 1437 also added section 1170.95, which sets
forth the procedure by which a “person convicted of felony murder
or murder under a natural and probable consequences theory
may 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).)
The petition must include a declaration stating the petitioner
meets all the requirements for resentencing, including that the
petitioner “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subds. (a)(3), (b)(1)(A).)
Once a complete petition is filed, the court determines
whether “the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. . . . If the petitioner makes a prima
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facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).)
After the court issues an order to show cause, a hearing is
held to determine whether to vacate the murder conviction, recall
the sentence, and resentence the petitioner on any remaining
counts. (§ 1170.95, subd. (d)(1).) At the hearing, “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges. The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id.,
subd. (d)(3).)
B. Analysis
Appellant and the People each posit two different
standards of proof at the evidentiary stage of the section 1170.95
procedure, which we discuss in turn.
The first standard offered by appellant, which we reject, is
that a trial court may deny a section 1170.95 petition only if it
finds, beyond a reasonable doubt, that the jury actually convicted
petitioner of murder under a still valid theory. This is the same
standard applied when a trial court instructs a jury on
alternative theories of guilt, one of which is legally invalid. (See
People v. Chiu (2014) 59 Cal.4th 155, 167, superseded on other
grounds by statute as stated in People v. Lewis (2021) 11 Cal.5th
952.) As applied to this case, it would require the People to prove
that the jury in the underlying trial convicted appellant under an
implied malice theory rather than under a felony murder theory.
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Appellant’s proposed standard is inconsistent with the
statutory scheme in at least two ways. Section 1170.95,
subdivision (a)(3) requires as a necessary condition for
resentencing that the petitioner “could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a)(1).)
Subdivision (d)(3) places the burden on the prosecution to “prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Id., subd. (d)(4).) Read together, these provisions
lead to the conclusion that a trial court must deny a petition if
the People prove, beyond a reasonable doubt, that the petitioner
could be convicted of first or second degree murder under the law
as of January 1, 2019. The standard appellant proposes would
require the People to prove something different: that petitioner
was convicted previously under a still valid theory.
Further, the provision in section 1170.95, subdivision (d)(3)
permitting the parties to present new evidence to establish their
respective burdens would be superfluous if, as appellant
contends, the determinative issue is whether the petitioner was
convicted under a still valid theory. It would be nonsensical for a
court to consider evidence never presented to the jury to
determine the basis on which the jury convicted a petitioner. For
these reasons, we reject appellant’s contention that a trial court
may deny a petition only if it finds the jury actually convicted
petitioner under a still valid theory of murder.
The second standard originally posited by the People,
which we also reject, is the substantial evidence standard set out
in People v. Duke (2020) 55 Cal.App.5th 113, review granted
January 13, 2021, S265309 (Duke). The Duke court stated the
standard: the prosecution need only prove “that the defendant
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could still have been convicted of murder under the new law—in
other words that a reasonable jury could find the defendant
guilty of murder with the requisite mental state for that degree of
murder [under current law]. This is essentially identical to the
standard of substantial evidence, in which the reviewing courts
asks ‘whether, on the entire record, a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.” (Id. at
p. 123.)
There is currently a split of authority as to whether the
substantial evidence standard of review comports with the
language of the statute. Contrary to Duke, People v. Lopez (2020)
56 Cal.App.5th 936, review granted February 10, 2021, S265974
(Lopez), People v. Rodriguez (2020) 58 Cal.App.5th 227, review
granted March 10, 2021, S266652 (Rodriguez), and People v.
Clements (2021) 60 Cal.App.5th 597, reviewed granted April 28,
2021, S267624 (Clements) each conclude that after an evidentiary
hearing, the trial court is required to act as an independent fact
finder and determine whether the People have proven the
petitioner guilty of murder beyond a reasonable doubt under the
law as of January 1, 2019. This is the standard the People now
urge in their supplemental briefing. In this context, the trial
court does not analyze what the previous jury could have found or
what a jury could or would find now on retrial. No, the trial court
itself, in effect, renders a verdict by finding the petitioner either
guilty or not guilty of murder based on the evidence presented at
the evidentiary hearing. (See also Couzens, Accomplice Liability
for Murder (SB 1437) (June 2021), at p. 49 [it is “the burden of
the prosecution to show, beyond a reasonable doubt, the
petitioner could be found guilty of murder under a valid theory of
the law effective January 1, 2019”].)
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We do not repeat here the well-reasoned analyses of Lopez,
Rodriguez, and Clements. Suffice it to say that we find their
reasoning persuasive and agree with their conclusion that the
trial court must act as an independent factfinder, not simply
review the evidence and determine what a jury could or would
decide. In this case, based on the trial court’s frequent allusions
and references to what the jury could have decided based on the
evidence, we find the trial court used the substantial evidence
standard of review instead of acting as an independent factfinder.
We remand to the trial court to conduct a new hearing and state
its own findings on the record as to whether the People have
carried their burden of proving appellant guilty of second degree
murder beyond a reasonable doubt under current law.
DISPOSITION
The judgment is reversed. The case is remanded for the
trial court to conduct a new hearing under section 1170.95,
subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, Acting, P. J.
We concur:
WILEY, J. OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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