Filed 2/15/22 P. v. McDaniels CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.
Rob Bonta and Xavier Becerra, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General,
Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri,
Thomas C. Hsieh and Amanda V. Lopez, Deputy Attorneys
General, for Plaintiff and Respondent.
____________________________
Petitioner Lamarr Marquis McDaniels appeals from the
summary denial of his petition seeking resentencing under Penal
Code1 section 1170.95. The Supreme Court vacated our prior
opinion, in which we reversed the trial court’s order regarding
McDaniels’ murder conviction and affirmed the order regarding
his attempted murder conviction. The high court also transferred
the matter back to this court to reconsider the cause in light of
Senate Bill No. 775,2 which amended section 1170.95 to
encompass attempted murder.
We now reverse the trial court’s summary denial of
McDaniels’s petition for resentencing in its entirety, and remand
the matter to the trial court to issue an order to show cause
pursuant to section 1170.95, subdivision (c) and to hold a hearing
pursuant to section 1170.95, subdivision (d).
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,
subdivisions (b) and (e)(1). With respect to both counts, the
1 Undesignated statutory citations are to the Penal Code.
2 Senate Bill No. 775 (2021–2022 Reg. Sess.) effective
January 1, 2022, amended section 1170.95 by Statutes 2021,
chapter 551, section 2.)
2
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.
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. (McDaniels I, supra, B250574.)
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.)
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.
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The first jury convicted McDaniels of being a convicted
felon in possession of a firearm. The jury was unable 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 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
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. [¶] . . .
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[¶] 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
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.)
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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 (2014) 59 Cal.4th 155 (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.” (Id. at
pp. 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
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
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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
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.
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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
A. Legal Background
To be convicted of murder, a jury must ordinarily find that
the defendant acted with the requisite mental state, known as
“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172,
1181, quoting § 187, subd. (a).) Until recently, the felony murder
rule provided an exception that made “a killing while committing
certain felonies murder without the necessity of further
examining the defendant’s mental state.” (Chun, at p. 1182.)
Also, until recently, the natural and probable consequences
doctrine permitted a “ ‘ “person who knowingly aids and abets
[the] criminal conduct [of another person] is guilty of not only the
intended crime . . . but also of any other crime the [other person]
actually commits . . . that is a natural and probable consequence
of the intended crime.” ’ [Citation.]” (Chiu, supra, 59 Cal.4th at
p. 161; see also Gentile, supra, 10 Cal.5th at pp. 845–846.)
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
No. 1437), which became effective January 1, 2019, raised the
level of culpability required for murder liability to be imposed
under a felony murder or natural and probable consequences
theory. (See Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
amended section 189, which defines the degrees of murder, to
limit murder liability based on felony murder or a natural and
probable consequences theory for a person who: (1) was the
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actual killer; (2) though not the actual killer, acted “with the
intent to kill” and “aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer” in the
commission of first degree murder; or (3) was “a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also amended the definition of malice
in section 188 to provide that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) In addition to amending sections 188 and
189, the Legislature enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4, eff. Jan. 1, 2019.) That provision authorizes a
person convicted of felony murder, murder under a natural and
probable consequences theory, or other theory of imputed malice
to file with the sentencing court a petition to vacate the
conviction and be resentenced. (§ 1170.95, subd. (a).)
Under the amended version of section 1170.95,
subdivision (a)(2), which became effective January 1, 2022, a
defendant convicted of attempted murder may be eligible for
resentencing relief. The amended statute permits persons
convicted of “felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural
and probable consequences doctrine or manslaughter” to file a
petition for resentencing. (§ 1170.95, subd. (a).)
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B. McDaniels Established a Prima Facie Case for
Resentencing on His Murder and Attempted Murder
Convictions
“Pursuant to section 1170.95, an offender must file a
petition in the sentencing court averring that: ‘(1) A complaint,
information, or indictment was filed against the 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[;] [¶] [and] (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.’
(§ 1170.95, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).)”
(People v. Lewis (2021) 11 Cal.5th 952, 959–960 (Lewis).) “Where
the petition complies with subdivision (b)’s three requirements,
then the court proceeds to subdivision (c) to assess whether the
petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95,
subd. (c).)” (Lewis, at p. 960.)
Here, McDaniels filed a facially sufficient petition and
made a prima facie showing for relief. The jury instructions
permitted the jury to convict McDaniels of murder and attempted
murder on an imputed malice theory.3 We cannot exclude the
3 Specifically, the jury instructions permitted finding
McDaniels guilty of murder or attempted murder if he was
“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
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possibility that the jury relied on the natural and probable
consequences doctrine when it convicted McDaniels of murder
and attempted murder. Therefore, McDaniels is not ineligible for
relief as a matter of law. 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.
The case must be remanded for the trial court to issue an
order to show cause.4 (§ 1170.95, subd. (c); Lewis, supra,
11 Cal.5th at p. 962.) After issuing an order to show cause, the
trial court must hold a hearing pursuant to section 1170.95,
subdivision (d)(1) unless the parties waive a resentencing hearing
under section 1170.95, subdivision (d)(2).
Carrying a concealed firearm 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.” (McDaniels I, supra, B250574.)
4 The People agree that the case must be remanded and
that the trial court proceed in accordance with section 1170.95,
subdivision (c).
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DISPOSITION
The order denying McDaniels’s petition for resentencing is
reversed. Upon remand, the trial court shall issue an order to
show cause pursuant to section 1170.95, subdivision (c) and hold
a hearing pursuant to section 1170.95, subdivision (d)(1) unless
the parties waive such hearing under section 1170.95,
subdivision (d)(2).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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