People v. McDaniel CA3

Filed 1/24/23 P. v. McDaniel CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092707

Plaintiff and Respondent, (Super. Ct. No. 95F07955)

v. OPINION ON TRANSFER

ROBERT DEAN MCDANIEL,

Defendant and Appellant.

Defendant Robert Dean McDaniel appeals from the trial court’s order denying his petition for resentencing under Penal Code former section 1170.95 (now renumbered as section 1172.6 (Stats. 2022, ch. 58, § 10); statutory section citations that follow are to the Penal Code). Defendant argues the trial court erred when it determined he was ineligible for resentencing as a matter of law based on the jury’s robbery-murder and burglary- murder special circumstance findings.

1

We filed an unpublished opinion on December 17, 2021, affirming the trial court’s order. Our Supreme Court granted review of the matter on March 9, 2022, and on November 22, 2022, transferred the case to us with directions to vacate our previous decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Neither party filed supplemental briefing following the transfer. We will reverse the trial court’s order and remand the matter for further proceedings.

FACTS AND HISTORY OF THE PROCEEDINGS In 2000, a jury found defendant guilty of first degree murder (§ 187, subd. (a)), robbery (§ 211), and burglary (§ 459). (People v. McDaniel (Feb. 26, 2003, C037451) [nonpub. opn.] (McDaniel).) The jury also found true burglary-murder and robbery- murder special circumstance allegations (§ 190.2, subd. (a)(17)) as to the murder count and firearm enhancement allegations (§ 12022, subd. (a)) as to each count. (McDaniel, C037451.) On appeal, we affirmed the convictions. (McDaniel, supra, C037451.) Our opinion laid out the evidence introduced at trial. In short, defendant and codefendants robbed the victim at his home. After the robbery, the victim was found dead in his home with six gunshot wounds. (Ibid.) On appeal, defendant challenged the sufficiency of the evidence for the special circumstance findings, saying there was not substantial evidence “ ‘[he] was the person who actually shot [the victim], that [he] harbored an intent to kill [the victim], or that [he] acted with reckless indifference to life.’ ” (McDaniel, supra, C092707.) We rejected the argument, saying, “[h]ere, prior to the murder, defendant planned the burglary of [the victim’s] house and sought assistance from Tynes, Cox, and Pennucci. When one potential participant demanded to get half of the property that would be taken in the burglary, defendant decided to do the heist himself, along with Pennucci and another person. After ‘the third party dropped out,’ defendant obtained Cook’s help because