Opinion
G061820
02-09-2023
THE PEOPLE, Plaintiff and Respondent, v. CODY LEO SCHREIBER, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. C-50582, Cheri T. Pham, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Cody Leo Schreiber on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on his behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to one issue that might arguably support an appeal: whether the trial court erred by finding Schreiber had not established a prima facie case and not issuing an order to show cause on his Penal Code section 1170.95 petition for resentencing.
All further statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion.
We gave Schreiber 30 days to file written argument on his own behalf. Thirty days have passed, and Schreiber has not filed any written argument.
We have independently reviewed the record in accordance with our obligations under Anders and Kelly. We found no arguable issues on appeal. We affirm the postjudgment order.
Although not required in postjudgment appeals, we have discretion to independently review the record. (People v. Delgadillo (2022) 14 Cal.5th 216, 230.)
FACTS
In November 1982, an information charged Schreiber with one count of murder (§ 187). The following year, the jury convicted Schreiber of first degree murder. As relevant here, the trial court did not instruct the jury on felony murder, the natural and probable consequences doctrine, or any theory of imputed malice. The court sentenced Schreiber to 25 years to life.
In 2022, Schreiber filed a petition for resentencing (§ 1172.6). The prosecution filed opposition, arguing he failed to present a prima facie case for relief. Schreiber's counsel appeared and waived Schreiber's personal appearance.
The trial court denied Schreiber's petition for failure to establish a prima facie case for relief. The court explained the record of conviction contained no reference to felony murder, murder under the natural and probable consequences doctrine, or imputed malice and the theory was not instructed on any of these theories. The court opined, "As the actual killer, [Schreiber] would be guilty of murder under the current law and is ineligible for resentencing under [s]ection 1172.6." Schreiber timely filed a notice of appeal.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (SB 1437) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felonymurder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Under sections 188 and 189, as amended, murder liability can no longer be "imposed on a person who [was] not the actual killer," who "did not act with the intent to kill," or who "was not a major participant in the underlying felony who acted with reckless indifference to human life." (Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6 which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory" could petition for resentencing relief. (§ 1172.6, subd. (a).)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (SB 775), effective January 1, 2022, amended section 1172.6, subdivision (a), to expand the individuals entitled to petition for resentencing. Subdivision (a), of that section now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief. A section 1172.6 petition is required to make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.) In Lewis, supra, 11 Cal.5th at page 971, our Supreme Court held "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless."
Section 1172.6 allows "[a] person convicted of felony murder or murder under a natural and probable consequences doctrine or other theory [to] file a petition" to have that "murder . . . conviction vacated and to be resentenced on any remaining counts" if certain conditions are met. (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.) Schreiber was not convicted under either theory or any other theory of vicarious liability. Section 1172.6 did not change or alter the law regarding the criminal liability of actual killers. One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law. We find no error.
We have reviewed the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and considered the possible issue raised by appellate counsel. We found no arguable issues on appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: GOETHALS, J. SANCHEZ, J.