Filed 12/14/21 P. v. McDaniel CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B308845
(Super. Ct. No 2007027559)
Plaintiff and Respondent, (Ventura County)
v.
ANTHONY MCDANIEL, JR.,
Defendant and Appellant.
Anthony McDaniel, Jr. appeals an order denying his 2020
petition for resentencing under Penal Code section 1170.95. 1
McDaniel was previously convicted of first degree murder of
Daniel Q. (§§ 187, subd. (a), 189), with findings that he
committed the offense for the benefit of a criminal street gang
while he was an active participant in a gang (§§ 186.22, subd.
(b)(1), 190.2, subd. (a)(22)), and he personally and intentionally
discharged a firearm causing great bodily injury and death
(§ 12022.53, subd. (d)). He was also convicted of attempted
murder of Cesar N. and Pablo M. (§§ 664, 187, subd. (a)), with
findings that these offenses were committed for the benefit of a
1 All statutory references are to the Penal Code.
criminal street gang (§ 186.22, subd. (b)(1)), and he personally
used and personally and intentionally discharged a firearm and
caused great bodily injury to Pablo M. (§ 12022.53, subds. (b), (c),
(d) & (e)(1)) and second degree robbery (§ 211). (People v.
McDaniel (Jan. 10, 2012, B226763 [nonpub. opn.].) The court
sentenced him to a term of life without the possibility of parole
and a “fixed determinate term” of 97 years 4 months. (Ibid.) In
2012, we affirmed these convictions. (Ibid.)
We appointed counsel to represent McDaniel on this
appeal. After examination of the record, his counsel was not able
to find any arguable issues on appeal. Counsel filed an opening
brief requesting the court to make a review under People v.
Wende (1979) 25 Cal.3d 436.
We notified McDaniel of his right to file a supplemental
brief. He filed a request for judicial notice on September 7, 2021,
which we grant. This document is also essentially a
supplemental brief. McDaniel claims the trial court erred by
denying his section 1170.95 petition and that he is entitled to a
reversal and a new hearing. We disagree.
Section 1170.95 does not provide resentencing relief for a
defendant convicted of murder who was the actual killer or “a
major participant in the underlying felony who acted with
reckless indifference to human life.” (People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 417.) This statute was enacted to
provide resentencing relief for those convicted of murder whose
murder convictions were the result of a jury being instructed with
the natural and probable consequences doctrine. (§ 1170.95,
subd. (a)(1).)
McDaniel was the actual killer of Daniel Q. He shot
Daniel Q., who was unarmed, while the victim was walking down
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the street. (People v. McDaniel, supra, B226763.) The jury was
not instructed with the natural and probable consequences
doctrine. In denying his section 1170.95 petition, the trial court
found McDaniel was not eligible for relief because he “was the
actual killer and the killing was nothing less than a willful,
premeditated and deliberate murder of Daniel Q.” The record
supports that finding.
McDaniel contends the trial court erred by ruling that his
two attempted murder convictions could not be resentenced
under section 1170.95 because that section applies only to
murder convictions. He notes that the Legislature recently
passed Senate Bill No. 775 (2021-2022 Reg. Sess.) that includes
resentencing relief for attempted murder convictions. (§ 1170.95,
as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
But even applying Senate Bill No. 775 here, the result
would not change because McDaniel is not eligible for section
1170.95 relief. The two counts of attempted murder stem from an
incident where McDaniel entered a bakery, and while attempting
to commit a robbery there, he shot Pablo M. twice in the back and
once in the buttocks after Pablo M. tried to move away.
McDaniel shot Cesar N. in the arm after Cesar N. tried to hide
next to a pillar. (People v. McDaniel, supra, B226763.)
For attempted murder, the jury was not instructed with the
natural and probable consequences doctrine. In denying
McDaniel’s section 1170.95 petition, the trial court found,
“Petitioner’s attempted murder convictions rest on a willful
attempted killing with malice aforethought. The jury was
instructed that a conviction of attempted murder required a
finding that Petitioner specifically intended to commit the crime
of murder. As to two victims, the jury found that Petitioner had
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the requisite intent to kill and that, as to all the victims of this
violent episode, Petitioner was the actual shooter. Petitioner’s
convictions are based solely on his own behavior and intent and
[do] not flow from the behavior or intent of a co-participant.”
McDaniel contends the trial court erred by not appointing
counsel for him. But a failure to appoint counsel on a section
1170.95 petition is reviewed under a harmless error standard
under People v. Watson (1956) 46 Cal.2d 818. (People v. Lewis
(2021) 11 Cal.5th 952, 957-958.) Because of the facts of this case,
and because he is not eligible for section 1170.95 relief, any error
is harmless.
McDaniel claims his appointed appellate counsel should not
have filed a Wende brief. Given the record, there is no showing
that his counsel has not provided adequate assistance or erred by
filing a Wende brief. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267.)
We have reviewed McDaniel’s remaining contentions and
we conclude that he has not shown grounds for a reversal of the
order denying his section 1170.95 petition.
After examination of the record, we are satisfied that no
arguable issues exist. (People v. Wende, supra, 25 Cal.3d at pp.
441, 443.)
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J. TANGEMAN, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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