Filed 11/22/21 P. v. McDaniel CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306957
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA006099)
v.
HAROLD PHILLIPS McDANIEL,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Gary J. Ferrari, Judge. Reversed and
remanded with directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda Lopez and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
MEMORANDUM OPINION1
Harold Phillips McDaniel appeals the summary denial of
his petition for resentencing under Penal Code section 1170.95. 2
The parties agree that because the record of conviction does not
demonstrate appellant is ineligible for relief as a matter of law,
the trial court summarily denied the petition in error. We agree
and remand the matter to the trial court for further proceedings,
including the issuance of an order to show cause and an
evidentiary hearing in accordance with section 1170.95,
subdivision (d).
Appellant and three codefendants beat a man to death in
the early morning hours of January 1, 1991. Following a jury
trial, all four men were convicted of second degree murder and
sentenced to a term of 15 years to life in prison.
On March 11, 2019, appellant filed a petition for
resentencing pursuant to section 1170.95 through retained
counsel. The petition asserted appellant was entitled to relief
because he was convicted on a natural and probable consequences
theory of liability. In support of the petition, appellant attached
copies of several instructions given to the jury, including the
natural and probable consequences instruction, and portions of
1 We resolve this case by memorandum opinion pursuant to
standard 8.1 of the California Standards of Judicial
Administration, because this appeal “is determined by a
controlling statute which is not challenged for unconstitutionality
and does not present any substantial question of interpretation or
application.” (Cal. Stds. Jud. Admin., § 8.1(1).) In addition, the
parties agree that the trial court’s error requires reversal and
remand.
2 Undesignated statutory references are to the Penal Code.
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the People’s closing argument in which the prosecutor relied on
the natural and probable consequences theory of culpability. On
January 16, 2020, following briefing by the parties on the merits
of the petition, the superior court conducted a hearing to
determine whether appellant had stated a prima facie case for
relief under section 1170.95.
On June 23, 2012, the superior court issued a written
ruling in which it denied the petition on the ground that
appellant is ineligible for relief under section 1170.95 as a matter
of law. The court reasoned that relief under section 1170.95 is
limited to those cases where felony murder and/or natural and
probable consequences were the only theories of culpability upon
which the defendant could have been convicted. The superior
court concluded that because the prior appellate opinion on direct
appeal contained sufficient evidence to support appellant’s second
degree murder conviction on a theory of express or implied
malice, appellant is ineligible for resentencing relief under
section 1170.95 as a matter of law.
Appellant and respondent agree that the superior court
erred in denying the petition at the prima facie review stage
based on its own evaluation of the evidence. Appellant’s petition
satisfied the criteria for a facially sufficient petition under section
1170.95, subdivisions (a) and (b), and the record of conviction did
not demonstrate ineligibility for relief as a matter of law. The
matter must therefore be remanded to the superior court for the
issuance of an order to show cause and further proceedings in
accordance with section 1170.95, subdivision (d). (People v. Lewis
(2021) 11 Cal.5th 952, 971–972.)
The parties further agree that should the superior court
conduct an evidentiary hearing pursuant to section 1170.95,
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subdivision (d)(3), the prosecution will be required to prove
beyond a reasonable doubt to the trial court as finder of fact that
appellant is guilty of murder on a theory of murder that remains
valid after Senate Bill No. 1437. (People v. Fortman (2021) 64
Cal.App.5th 217, 225–226, review granted July 21, 2021,
S269228.)
DISPOSITION
The postjudgment order is reversed. The matter is
remanded to the superior court for the issuance of an order to
show cause and further proceedings in accordance with Penal
Code section 1170.95, subdivision (d). If the trial court conducts
an evidentiary hearing in accordance with Penal Code section
1170.95, subdivision (d)(3), the court, acting as an independent
factfinder, must determine whether the prosecution has
established beyond a reasonable doubt that the petitioner is
guilty of murder on a theory of murder that remains valid after
the changes in the law engendered by Senate Bill No. 1437 and is
thus ineligible for relief.
NOT TO BE PUBLISHED.
LUI, P.J. ASHMANN-GERST, J. HOFFSTADT, J.
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