P. v. McDaniels

Filed 4/21/21 P. v. McDaniels CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RASHON TREMAIN McDANIELS,
Defendant and Appellant.
B305707
(Los Angeles County
Super. Ct. No. GA073596)
APPEAL from an order of the Superior Court of
Los Angeles County, Dorothy L. Shubin, Judge. Affirmed.
Rashon Tremain McDaniels, in pro. per.; Jennifer
Peabody, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Respondent.

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BACKGROUND
In 2010, a jury found appellant and a co-defendant
guilty of premeditated attempted murder and shooting at an
inhabited dwelling.1 The jury found true allegations that
appellant committed the offenses for the benefit of a criminal
street gang and that a principal personally used and
intentionally discharged a firearm, causing great bodily
injury. On direct appeal, we remanded the matter to correct
appellant’s sentence, but affirmed his convictions. We
concluded the trial court had erred in instructing the jury
that those who aid and abet a crime and those who directly
perpetrate the crime are “‘equally guilty’” of the commission
of that crime, but found the error harmless beyond a
reasonable doubt. (People v. Alford (Jan. 16, 2013, B229548)
2013 Cal.App.Unpub. LEXIS 358.)
In concluding that no prejudice resulted from the
instructional error, we observed that “[t]he jury was
specifically instructed that in order to find an individual
defendant guilty, it had to find that that person knew of the
perpetrator’s intent to murder prior to aiding and abetting
by words or conduct.” We stated, “[I]n order to find
[appellant] guilty on an aiding and abetting theory, the jury
. . . had to find [1] that the shooter . . . committed attempted
murder, [2] that [appellant] knew that he intended to
commit murder, and [3] that before or during the
commission of the crime, [appellant] . . . intended to, and by
1 A third co-defendant pleaded guilty before trial.

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word or conduct did, aid and abet the [shooter]’s commission
of the shooting . . . .”
In 2019, appellant filed a “Petition for Writ of Habeas
Corpus,” alleging that he was entitled to resentencing on the
attempted murder conviction under Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which eliminated the
natural and probable consequences theory as a basis for
murder liability.2 (People v. Gentile (2020) 10 Cal. 5th 830,
848 (Gentile).) Appellant asserted he was convicted of
attempted murder under the natural and probable
consequences theory.
Treating appellant’s petition as a petition for relief
under Penal Code section 1170.95 (Section 1170.95), the
superior court appointed counsel for appellant and set a
briefing schedule for the parties. In opposing appellant’s
petition, the prosecution argued, inter alia, that Section
1170.95 was inapplicable to convictions for attempted
murder, citing People v. Lopez (2019) 38 Cal.App.5th 1087
(Lopez), review granted November 13, 2019, S258175. In
2 “Under the natural and probable consequences doctrine,
‘[a]n aider and abettor is guilty not only of the intended, or
target, crime but also of any other crime a principal in the target
crime actually commits (the nontarget crime) that is a natural
and probable consequence of the target crime.’” (People v.
Vega-Robles (2017) 9 Cal.App.5th 382, 433-434.) Thus, prior to
SB 1437’s enactment, if a person aided and abetted only an
intended assault, but a murder resulted, that person would be
guilty of murder “‘if it [wa]s a natural and probable consequence
of the intended assault.’” (People v. Smith (2014) 60 Cal.4th 603,
611.)

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response, appellant requested that the court stay the matter
until the California Supreme Court decided this issue in
Lopez. Following a hearing, the superior court declined to
stay the proceeding and denied appellant’s petition,
concluding that Section 1170.95 did not apply to convictions
for attempted murder and thus that appellant was ineligible
for relief. Appellant timely appealed.
DISCUSSION
Appellant’s appointed counsel filed a brief raising no
issues. We directed counsel to send the record and a copy of
the brief to appellant, and notified appellant of his right to
respond within 30 days. Appellant has filed a supplemental
brief. In his brief, he renews his request to stay the
proceeding until the Supreme Court decides Lopez and other
pending cases involving Section 1170.95’s application to
convictions for attempted murder. Additionally, appellant
points to a portion of the reporter’s transcript of his trial,
asserting it shows that the court instructed his jury on the
natural and probable consequences theory of liability. We
decline to stay the proceeding. Construing appellant’s
supplemental brief as asserting that he is eligible for relief
under Section 1170.95, we reject his contention.
Section 1170.95 allows persons “convicted of felony
murder or murder under a natural and probable
consequences theory” to petition the sentencing court to
vacate their “murder conviction” under certain conditions.
(Id., subd. (a).) By its terms, this provision applies only to

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murder convictions and provides no relief from convictions
for attempted murder. (E.g., Lopez, supra, 38 Cal.App.5th at
1103-1112, rev.gr.; People v. Munoz (2019) 39 Cal.App.5th
738, 753-769, review granted Nov. 26, 2019, S258234; People
v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted
Feb. 26, 2020, S259983; People v. Love (2020) 55 Cal.App.5th
273, 279, review granted Dec. 16, 2020, S265445.)
Moreover, we observe that contrary to appellant’s
assertion, the portion of the reporter’s transcript he
references reflects that the trial court discussed the concept
of natural and probable consequences with the jury only in
instructing it how to determine if an act caused great bodily
injury for purposes of the firearm-enhancement allegation.
Indeed, according to our opinion in the prior appeal, the jury
was instructed it could not find appellant guilty of attempted
murder as an aider and abettor unless it found that he knew
the shooter intended to commit murder, an element not
required under the natural and probable consequences
theory. (See Gentile, supra, 10 Cal. 5th at 843-844 [under
natural and probable consequences theory, accomplice is
guilty of any offense foreseeably resulting from act aided and
abetted, regardless of whether accomplice actually foresaw
it].) Accordingly, the superior court did not err in denying
appellant’s petition under Section 1170.95.3
3 Under People v. Serrano (2012) 211 Cal.App.4th 496, when
appointed counsel raises no issue in an appeal from a
post-judgment proceeding following a first appeal as of right, an
appellate court need not independently review the record. (Id. at
(Fn. is continued on the next page.)

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DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
498.) Instead, our obligation is only to “evaluate [the] arguments
presented” in appellant’s supplemental brief. (People v. Cole
(2020) 52 Cal.App.5th 1023, 1040.) At appellant’s counsel’s
request, we nevertheless independently reviewed the record. Our
review revealed no arguable issue.

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