People v. McDaniels CA2/1

Filed 3/1/21 P. v. McDaniels CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE, B305372

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA076378)
v.

LAMARR MARQUIS MCDANIELS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Jared D. Moses, Judge. Reversed.
Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 Before us is an appeal from the summary denial of
Lamarr Marquis McDaniels’s petition seeking resentencing
under Penal Code1 section 1170.95 which implemented
Senate Bill No. 1437, making the natural and probable
consequences doctrine unavailable to support a murder
conviction.
The trial court denied McDaniels’s resentencing petition
because he failed to establish a prima facie case for resentencing
on either his murder or attempted murder convictions. We
reverse the trial court’s order as it relates to the murder
conviction because the record of conviction does not show as a
matter of law that McDaniels is not entitled to resentencing.
We, however, find no error regarding denying McDaniels’s
petition as to the attempted murder conviction because
section 1170.95 does not provide for resentencing of attempted
murder convictions. We thus remand the case to the trial court
to issue an order to show cause as to McDaniels’s murder
conviction only.

BACKGROUND

1. Information and Conviction
In May 2020, the People charged McDaniels and three
codefendants with the murder of Miguel Sanchez. The People
further alleged a firearm enhancement within the meaning of
section 12022.53, subdivisions (b), (c), (d), and (e)(1). The People
also charged McDaniels and his confederates of the attempted
murder of Salvador Velasquez and alleged a firearm
enhancement within the meaning of section 12022.53,

1 Undesignated statutory citations are to the Penal Code.

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subdivisions (b) and (e)(1). With respect to both counts, the
People alleged a gang enhancement under section 186.22. The
People charged McDaniels with possession of a firearm by a felon
and, in connection with that count, listed four prior felony
convictions. As explained below, McDaniels was tried twice on
the murder and attempted murder charges.
In our prior opinion following McDaniels’s second jury trial
(People v. McDaniels et al. (Mar. 9, 2015, B250574) [nonpub. opn.]
(McDaniels I), we described the facts, which we now summarize.2
There was evidence that McDaniels and the shooter were
members of the Duroc Crips gang. The day before the shooting,
McDaniels gave the shooter a gun. On February 9, 2008,
McDaniels drove the shooter and two other Duroc Crips gang
members or associates, and McDaniels indicated the group was
going to “hit some corners.” When victims Miguel Sanchez and
Salvador Velasquez were walking, McDaniels made a sharp turn
and proceeded towards them. McDaniels slowed the vehicle to
allow his passenger to shoot the victims. McDaniels’s passenger
began to shoot numerous shots in rapid succession. Sanchez was
killed. Velasquez survived.
A gang expert testified that the shootings were in
retaliation for an earlier gang shooting. The gang expert also
testified that “hitting corners,” meant “going into a rival gang’s
territory to look for an enemy to attack.” (McDaniels I, supra,
B250574.)

2 In evaluating a section 1170.95 petition, we may rely on
the record of conviction including this court’s prior opinions.
(People v. Verdugo (2020) 44 Cal.App.5th 320, 333 (Verdugo),
review granted Mar. 18, 2020, S260493.)

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 The shooter testified that no one in the car knew he had a
gun. According to the shooter, when McDaniels gave him the gun
it was not loaded. The shooter admitted to firing the gun at
Sanchez and Velasquez and testified that he fired at them for
personal reasons.
The first jury convicted McDaniels of being a convicted
felon in possession of a firearm. The jury was not able to reach a
verdict on the murder and attempted murder charges.
In a second trial, McDaniels was tried along with the
shooter. The second jury convicted McDaniels and the shooter of
first degree murder. (All further references to the jury are to the
second jury.) The jury further found that a principal personally
used a firearm and that the gang enhancement was true. The
jury also convicted McDaniels and the shooter of willful,
deliberate, and premediated attempted murder and further found
that a principal personally used a firearm. The jury found the
gang enhancement true in connection with the attempted
murder.
The trial court sentenced McDaniels to a total
indeterminate term of 90 years to life and a concurrent two-year
determinate term.

2. Jury Instructions
At McDaniels’s second trial, the jury instructions included
the following. “To prove that the defendant is guilty of Murder
and/or Attempted murder, the People must prove that: [¶]
1. The defendant is guilty of Assault with a Semi-automatic
firearm, or Carrying a concealed firearm; [¶] 2. During the
commission of Assault with a Semi-automatic firearm, or
Carrying a concealed firearm, a coparticipant in that Assault
with a Semi-automatic firearm or Carrying a concealed firearm

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committed the crime of Murder and Attempted Murder; [¶] AND
[¶] 3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
the Murder and/or Attempted Murder was a natural and
probable consequence of the commission of the Assault with a
Semi-automatic firearm or Carrying a concealed firearm. [¶] . . .
[¶] If you decide that the defendant, Lamarr McDaniels, aided
and abetted one of these crimes and that Murder and or
Attempted Murder was a natural and probable consequence of
that crime, the defendant is guilty of Murder and/or Attempted
Murder. You do not need to agree about which of these crimes
the defendant aided and abetted.” (McDaniels I, supra,
B250574.)
The court instructed the jury on two theories of first degree
murder—willful, deliberate, and premediated murder, and
murder committed by intentionally shooting from a motor vehicle
at a person outside the vehicle with intent to kill.
The court further instructed the jury: “The defendants
[McDaniels and the shooter] are charged in Count 1 with murder
in violation of Penal Code section 187. [¶] To prove that the
defendants are guilty of this crime, the People must prove that:
[¶] 1. The defendant committed an act that caused the death of
another person; [¶] AND [¶] 2. When the defendant acted, he
had a state of mind called malice aforethought. [¶] There are
two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind
required for murder. [¶] The defendant acted with express
malice if he unlawfully intended to kill. [¶] The defendant acted
with implied malice if: [¶] 1. He intentionally committed an act;
[¶] 2. The natural and probable consequences of the act were

5
dangerous to human life; [¶] 3. At the time he acted, he knew
his act was dangerous to human life; [¶] AND [¶] 4. [H]e
deliberately acted with conscious disregard for human life.”
(McDaniels I, supra, B250574.)

3. Prior Appeal
McDaniels, who was not the actual shooter, previously
appealed from the judgment of conviction. In the time between
his trial and the appellate decision, our Supreme Court decided
People v. Chiu, which held that an “aider and abettor may not be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine. Rather, his or her liability
for that crime must be based on direct aiding and abetting
principles.” (People v. Chiu (2014) 59 Cal.4th 155, 158–159.)
Chiu further held that a first degree murder conviction requires
reversal unless the reviewing court concludes “beyond a
reasonable doubt that the jury based its verdict on the legally
valid theory that defendant directly aided and abetted the
premediated murder.” (Id. at p. 167.) Chiu “left in place natural
and probable consequences liability for second degree murder.”
(People v. Gentile (2020) 10 Cal.5th 830, 845 (Gentile).)
In McDaniels I, we held that McDaniels’s conviction for
first degree murder must be conditionally reversed because it was
inconsistent with Chiu. We gave the People a choice: either
accept a reduction of the murder conviction to second degree
murder or retry the murder charge as to McDaniels. We affirmed
McDaniels’s remaining convictions. In doing so, we concluded
that the jury could have convicted McDaniels either based on
direct aiding and abetting liability or based on a conclusion that
murder was the natural and probable consequences of either
assault with a semiautomatic firearm or carrying a concealed

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weapon. We explained: “[E]vidence that McDaniels gave [his
confederate] the gun was uncontradicted, and the jury
instructions permitted the jury to convict McDaniels of first
degree premediated murder by concluding he aided and abetted
the crime of carrying a concealed firearm. . . . Nothing in the
record permits us to conclude beyond a reasonable doubt that the
jury did not, in fact, adopt that analysis and base its verdict on a
legally invalid theory.” (McDaniels I, supra, B250574.) We
further held that substantial evidence supported McDaniels’s
murder conviction as a direct aider and abettor.

4. Resentencing After McDaniels I
The People elected not to retry defendant. The trial court
resentenced him to a total indeterminate term of 80 years to life
and again ordered the two-year determinate term to run
concurrently.

5. Petition for Resentencing
On June 10, 2019, McDaniels filed in propria persona a
petition for resentencing. He alleged that he was convicted of
murder pursuant to the natural and probable consequences
doctrine. McDaniels alleged that he could no longer be convicted
of murder because of changes to sections 188 and 189, effective
January 1, 2019. McDaniels requested that counsel be appointed
for him.
The trial court appointed counsel to represent McDaniels.
The People opposed McDaniels’s petition for resentencing
arguing, among other things, that there was sufficient evidence
to convict him of directly aiding and abetting the murder.
Through counsel, McDaniels filed a response arguing that
the jury was instructed on the “now prohibited” theory of natural

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and probable consequences doctrine and that alone demonstrated
a prima facie case for relief under section 1170.95. McDaniels
also sought resentencing for his attempted murder conviction.

6. Trial Court’s Denial of McDaniels’s Petition
The trial court denied McDaniels’s petition for
resentencing, finding he failed to establish a prima facie case for
relief. The court also concluded that section 1170.95 does not
apply to attempted murder convictions.

DISCUSSION
Prior to the enactment of Senate Bill No. 1437, a defendant
who aided and abetted a crime that resulted in a victim’s death
could be convicted under the natural and probable consequences
theory even if the defendant did not act with malice. (People v.
Offley (2020) 48 Cal.App.5th 588, 595 (Offley).) “The natural and
probable consequences doctrine provides that ‘ “[a] person who
knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural
and probable consequence of the intended crime. . . .” [Citation.]’
[Citation.] The doctrine ‘ “imposes vicarious liability for any
offense committed by the direct perpetrator that is a natural and
probable consequence of the target offense. . . .” [Citation.]’ ”
(People v. Duke (2020) 55 Cal.App.5th 113, 120 (Duke), review
granted Jan. 13, 2021, S265309.)
The Legislature enacted Senate Bill No. 1437 “after
determining that there was further ‘need for statutory changes to
more equitably sentence offenders in accordance with their
involvement in homicides.’ ” (Gentile, supra, 10 Cal.5th at
pp. 838–839.) Senate Bill No. 1437 changed the law on murder

8
and added section 1170.95, which allows defendants convicted of
murder based on the natural and probable consequences doctrine
to petition for resentencing.3 Senate Bill No. 1437 did not alter
the viability of a murder conviction based on direct aiding and
abetting liability. “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.” (Offley, supra,
48 Cal.App.5th at pp. 595–596.)
Section 1170.95 sets forth a multistep decision process. If
the petitioner makes a prima facie showing that he or she is
eligible for and entitled to relief under the statute, then the trial
court “shall issue an order to show cause.” (§ 1170.95, subds. (b)
& (c); Verdugo, supra, 44 Cal.App.5th at pp. 328–329, review
granted.) “ ‘A prima facie showing is one that is sufficient to
support the position of the party in question.’ ” (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137 (Lewis), review granted
Mar. 18, 2020, S260598.)
We recently explained the requirements for a petitioner to
establish a prima facie case for resentencing under section
1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154
(Nguyen).) “Under section 1170.95, subdivision (a), ‘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 when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the

3 Section 1170.95 also applies to felony murder. That
doctrine is not at issue in this case.

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petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) 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.’ ” (Nguyen, at p. 1164.)
“In determining whether a petitioner has made a prima
facie showing that he or she is entitled to relief, the ‘trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed in
subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record “contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.”
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, [subdivision] (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion . . . .’ ” (Nguyen, supra,
53 Cal.App.5th at pp. 1165–1166.) We explained that a petitioner
fails to establish a prima facie showing if the petition is untrue as
a matter of law. (Ibid.)
We reached the same conclusion in People v. Swanson
(2020) 57 Cal.App.5th 604, 612 (Swanson), review granted

10
February 17, 2021, S266262, stating that the “contents of the
record of conviction defeat a prima facie showing when the record
shows as a matter of law that the petitioner is not eligible for
relief.” (See also People v. Duchine (Feb. 9, 2021, A157980) __
Cal.App.5th __ [2021 Cal.App.Lexis 114 at pp. *25–*26] [“absent
a record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent,” the petitioner has established a prima facie case]; People
v. Drayton (2020) 47 Cal.App.5th 965, 982 [reversing the trial
court’s order finding no prima facie case because the trial court
engaged in factfinding that was not supported as a matter of law
by the record of conviction]; but see People v. Garcia (2020)
57 Cal.App.5th 100, 116, review granted Feb. 10, 2021, S265692)
[“The trial court should not accept the petitioner’s assertions as
true and issue an order to show cause if substantial evidence in
the record supports a murder conviction under current law.”].)
We previously explained, and it is undisputed that, if the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause. (Offley,
supra, 48 Cal.App.5th at p. 596.)

A. McDaniels Established a Prima Facie Case for
Resentencing of His Murder Conviction
McDaniels argues, and the Attorney General agrees, that
the trial court erred in denying McDaniels’s petition for
resentencing without issuing an order to show cause and holding
a hearing with respect to the murder conviction. As we explain,
we agree with the parties.
In Lewis, supra, we concluded the petitioner did not
establish a prima facie case for resentencing. (43 Cal.App.5th
1128, review granted.) The trial court instructed the jury on

11
natural and probable consequence theory, on direct aiding and
abetting, and on conspiracy. (Id. at p. 1133.) The jury verdict did
not indicate upon which murder theory it relied. (Ibid.) In a
direct appeal from the judgment of conviction, this court
concluded that it was error to give the natural and probable
consequences instruction but the error was harmless beyond a
reasonable doubt based “on ‘strong evidence’ that defendant
‘directly aided and abetted [the perpetrator] in the premeditated
murder of [the victim].’ ” (Id. at p. 1134.) Because the evidence
was so strong, “we held that the record established that the jury
found defendant guilty beyond a reasonable doubt on the theory
that he directly aided and abetted the perpetrator of the murder.”
(Id. at pp. 1138–1139.) Prior to petitioner’s petition for
resentencing, “[t]he issue whether defendant acted as a direct
aider and abetter ha[d] thus been litigated and finally decided
against” the petitioner. (Ibid.) Therefore, the petitioner could
not establish a prima facie case for resentencing under
section 1170.95.
In Offley, we again considered whether a petitioner
established a prima facie case for resentencing under section
1170.95. The jury was instructed that “ ‘[a] member of a
conspiracy is not only guilty of the particular crime that to his
knowledge his confederates agreed to and did commit, but is also
liable for the natural and probable consequences of any crime of a
co-conspirator to further the object of the conspiracy . . . .’ ”
(Offley, supra, 48 Cal.App.5th at p. 593.) We held that because
“we cannot rule out the possibility that the jury relied on the
natural and probable consequences doctrine in convicting Offley,”
he was not “ ‘ineligible for relief as a matter of law.’ ” (Id.
at p. 599.) In contrast to Lewis, where the instructional error

12
was harmless beyond a reasonable doubt, in Offley, the jury could
have relied on the natural and probable consequences doctrine.
Like in Offley and in contrast to Lewis, the error in
instructing McDaniels’s jury on natural and probable
consequences was not harmless beyond a reasonable doubt. In
McDaniels’s prior appeal, we explained: “Nothing in the record
permits us to conclude beyond a reasonable doubt that the jury
did not . . . base its verdict on a legally invalid theory” of natural
and probable consequences. (McDaniels I, supra, B250574.)
Because the record of conviction does not refute as a matter of
law McDaniels’s statement that he was convicted based on the
natural and probable consequences doctrine, the trial court erred
in summarily denying McDaniels’s petition. (Swanson, supra,
57 Cal.App.5th at p. 612, review granted [“The contents of the
record of conviction defeat a prima facie showing when the record
shows as a matter of law that the petitioner is not eligible for
relief.”]; Nguyen, supra, 53 Cal.App.5th at pp. 1165–1166 [no
prima facie showing if petition untrue as a matter of law]; Lewis,
supra, 43 Cal.App.5th at p. 1138, review granted [no prima facie
case when record of conviction shows as a matter of law that the
petitioner is not eligible for relief].)4

4 The conclusion that McDaniels established a prima facie
case for resentencing is consistent with Duke, supra,
55 Cal.App.5th 113, review granted. In Duke, as here, in an
appeal from the judgment of conviction, this court conditionally
reversed the first degree murder conviction because “we could not
rule out the possibility that the jury relied on the natural and
probable consequences doctrine to convict Duke . . . .” (Id. at
p. 119.) Jurors could have convicted Duke based on the natural
and probable consequences doctrine based on aiding and abetting
a premediated murder. (Id. at pp. 122–123.) Duke filed a

13
 The Attorney General correctly argues: “Although the facts
strongly support a finding that [McDaniels] directly aided and
abetted murder (and thus is ineligible for resentencing relief)”
the record of conviction does not support that conclusion as a
matter of law. It follows that the case must be remanded for the
trial court to issue an order to show cause. (§ 1170.95, subd. (c).)
At the order to show cause hearing, the trial court may review
the record of conviction and any new evidence proffered by the
parties. (Id., subd. (d)(3).) Because we remand the matter for the
trial court to conduct an order to show cause hearing, we need not
consider the parties’ additional arguments concerning why the
trial court should issue an order to show cause. We also express
no opinion on how the trial court should rule at the order to show
cause hearing.

B. Section 1170.95 Does Not Apply to a Conviction for
Attempted Murder
McDaniels next argues that he is eligible for resentencing
on his conviction for attempted murder. Although some courts
have held that Senate Bill No. 1437 applies to nonfinal
convictions for attempted murder (see, e.g., People v. Medrano

petition for resentencing, and the trial court found that Duke
established a prima facie case for resentencing, set an order to
show cause, and held a hearing on Duke’s eligibility for
resentencing. (Id. at p. 119.) On appeal, this court
considered the prosecution’s standard at the section 1170.95,
subdivision (d)(3) hearing. (Duke, at p. 119.) Just as the
petitioner in Duke, McDaniels is entitled to a hearing under
section 1170.95, subdivision (d)(3) because we cannot rule out the
possibility that the jury in his original trial relied upon a natural
and probable consequences theory.

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(2019) 42 Cal.App.5th 1001, 1015–1016, review granted
Mar. 11, 2020, S259948), “[n]o court has held that Senate
Bill 1437 applies retroactively to final convictions of
attempted murder,” (People v. Harris (Feb. 3. 2021, E074136)
___ Cal.App.5th ___, ___ [2021 Cal.App.Lexis 96 at pp. *5–*6]).
Pending guidance from our high court, we agree that section
1170.95 does not apply to final convictions for attempted
murder.5 (See, e.g., Harris at p. *6; People v. Alaybue (2020)
51 Cal.App.5th 207, 222 (Alaybue); Lopez, supra, 38 Cal.App.5th
at pp. 1104–1105, review granted.)
This conclusion is consistent with the plain language of
section 1170.95. Section 1170.95 allows the petitioner to seek
only “to have [his or her] murder conviction vacated and to be
resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)
Subdivision (d)(1) of section 1170.95 permits the trial court to
conduct a hearing “to determine whether to vacate the murder
conviction” and subdivision (d)(2) similarly refers only to a
“murder conviction.” Because the statute does not refer to
attempted murder, the plain language refutes McDaniels’s
arguments that the Legislature intended section 1170.95 to
apply to attempted murder. (Lopez, supra, 38 Cal.App.5th at
pp. 1104–1105, review granted.) Further, “[i]n deciding to omit
attempted murder from the ambit of Senate Bill 1437, the
Legislature could have reasonably concluded that the need to
address sentencing reform was more appropriately directed at

5 Whether Senate Bill 1437 applies to attempted murder
liability under the natural and probable consequences doctrine is
currently pending in our Supreme Court. (People v. Lopez (2019)
38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019,
S258175.)

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persons convicted of murder as opposed to attempted murder.
This is so because the punishment for attempted murder is
generally far less than the punishment imposed for murder.”
(Alaybue, supra, 51 Cal.App.5th at p. 224.)

DISPOSITION
The order denying McDaniels’s petition for resentencing is
reversed. Upon remand, the trial court shall issue an order to
show cause and conduct a hearing in accordance with Penal Code
section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

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