People v. McDaniel CA2/2

Filed 11/22/21 P. v. McDaniel CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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