People v. McDaniel CA2/6

Filed 12/14/21 P. v. McDaniel CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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