People v. Schaefer CA2/8

Filed 9/1/21 P. v. Schaefer CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.

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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.