People v. McDaniel CA2/2 ( 2024 )

Filed 9/20/24 P. v. McDaniel CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B332290
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. Daniel J. Lowenthal, Judge. Affirmed.
Unite the People, Inc., and Crystal A. Morgan for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Blythe J. Leszkay
and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
In 2021, Harold Phillips McDaniel appealed the order of
the superior court denying his petition for resentencing under
Penal Code1 section 1172.6 (former § 1170.95, Stats. 2022, ch. 58,
§ 10) at the prima facie stage. We reversed and remanded to the
superior court for further proceedings pursuant to section 1172.6.
(People v. Harold Phillips McDaniel (Nov. 22, 2021, B306957)
[nonpub. opn.].) McDaniel now appeals the denial of his petition
following an evidentiary hearing. He contends substantial
evidence does not support the superior court’s finding that he
acted with implied malice. He further asserts the superior court
violated section 1382 and thus prejudicially erred by failing to
issue the order to show cause and conduct the evidentiary
hearing in a timely manner following issuance of the remittitur.
We reject both claims and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The killing of Fernando Chavez2
Around 2:00 in the morning on January 1, 1991, appellant
and three other men (codefendants Lorenzo James Robinson,
1 Undesignated statutory references are to the Penal Code.
2 The underlying facts are drawn from the trial record in
appellant’s direct appeal from his conviction (People v. Lorenzo
James Robinson et al. (Aug. 11, 1993, B062769) [nonpub. opn.]),
as well as the transcript of appellant’s August 14, 2014 parole
hearing, which the superior court considered at the section
1172.6 evidentiary hearing and which we have judicially noticed.
(See § 1172.6, subd. (d)(3) [at the hearing to determine
petitioner’s eligibility for relief, “the court may consider evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed”]; People v.
2
Kenneth Grant, and Kevin Alvin Johnson) beat Fernando Chavez
to death.
The fight started as an altercation between Robinson and
Chavez in a parking lot. After Robinson threw the first punch,
appellant, Grant and Johnson ran over and began punching,
kicking and stomping on Chavez. The four men continued their
attack even as Chavez fell to the ground and begged them to stop.
Eventually, the fight “just stopped,” and the attackers left
Chavez for dead, wedged between two parked cars on the street.
Police discovered Chavez around 6:45 in the morning on
January 1. He was still breathing, but had been so severely
beaten that the officers could not determine his race. Paramedics
took Chavez to the hospital, where he died from multiple head
injuries. Chavez also suffered three broken ribs and a fractured
vertebra in his cervical spine, which was caused by “a very hard
blow, severe force.” In addition, Chavez had multiple abrasions
and bruises on his face, neck, shoulders, back, chest, abdomen,
and arms. The medical examiner noted impressions and bruises
on Chavez’s chest and abdomen that appeared to have been made
by a shoe.
B. Appellant’s conviction
The jury convicted appellant and his three codefendants of
second degree murder after being instructed on aiding and
Mitchell (2022) 81 Cal.App.5th 575, 586 [“There is no categorical
exclusion of a defendant’s sworn parole hearing testimony” in a
section 1172.6 evidentiary hearing]; People v. Myles (2021) 69
Cal.App.5th 688, 697–706 [upholding superior court’s
consideration of parole hearing transcript at section 1172.6
evidentiary hearing].)
3
abetting, express and implied malice murder, and murder under
the natural and probable consequences doctrine.
C. The petition for resentencing under section 1172.6
Appellant filed a petition for resentencing under section
1172.6 on March 11, 2019. In it, appellant asserted that the jury
instructions and prosecution argument at trial permitted the jury
to convict appellant of murder on a natural and probable
consequences theory of liability. The petition included copies of
several instructions given to the jury, including the natural and
probable consequences instruction (CALJIC No. 3.02), and
excerpts from the People’s closing argument in which the
prosecutor relied on that theory of liability.
Based on the facts recited in this court’s opinion in the
direct appeal from the conviction, the superior court concluded
that appellant could have been convicted of second degree murder
on either an express or implied malice theory, and the
prosecution had met its burden of proving appellant ineligible for
relief beyond a reasonable doubt. The court denied the petition
without issuing an order to show cause or conducting an
evidentiary hearing.
On appeal from the prima facie denial, the parties “agree[d]
that the superior court erred in denying the petition at the prima
facie review stage based on its own evaluation of the evidence.”
We reversed and remanded the matter to the superior court to
issue an order to show cause and conduct further proceedings in
accordance with former section 1170.95, subdivision (d).
The remittitur issued on January 24, 2022, and the
superior court issued an order to show cause on July 18, 2022.
On January 31, 2023, the superior court conducted the
evidentiary hearing on the petition. Based on the evidence
4
presented at trial and appellant’s admissions at his August 14,
2014 parole hearing, the prosecutor argued the evidence showed
“beyond a reasonable doubt that [appellant] was not only an aider
and abettor, but a direct perpetrator in the murder of the victim
in this case.” Even if the evidence did not establish express
malice, the prosecutor asserted, “There’s certainly evidence here
of implied malice.” Appellant called no witnesses and offered no
additional evidence, but argued that “neither the physical nor the
mental component of implied malice exists” to establish liability
under a second degree implied malice theory.
On February 2, 2023, the superior court issued a minute
order denying the petition. Citing the trial transcripts and
appellant’s statements at the parole hearing, the court made the
following factual findings:
“[Appellant] participated in a group assault against
Fernando Chavez on January 1, 1991.
“[Appellant] pummeled Mr. Chavez, multiple times, with
his fists and feet.
“[Appellant] participated in the assault until it ended.
“Mr. Chavez, as a result of the attack, suffered fractured
ribs, broken vertebrae, red and purple abrasions, hemorrhaging,
and indentations to his torso.
“Mr. Chavez died as a result of the assault.
“After the attack, [appellant] provided no emergency
assistance to Mr. Chavez as he lay on the street, motionless, in a
pool of his own blood.
“Mr. Chavez was beaten so significantly that . . . the police
officer who discovered Mr. Chavez’s body, couldn’t even
determine his race.”
5
Based on these factual findings and the applicable law, the
superior court concluded beyond a reasonable doubt that
appellant had acted with implied malice when he participated in
the beating that resulted in Chavez’s death.
DISCUSSION
I. The Superior Court Properly Denied the
Section 1172.6 Petition on the Basis of Its
Finding that Appellant Is Guilty of Second
Degree Implied Malice Murder
A. Section 1172.6
Enacted in 2018, Senate Bill No. 1437 (2017–2018 Reg.
Sess.) effectively abolished the natural and probable
consequences doctrine in cases of murder and limited the
application of the felony-murder doctrine. (Stats. 2018, ch. 1015,
§ 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
The legislation also served to eliminate murder convictions
premised on any theory of imputed malice—that is, any theory by
which a person can be convicted of murder for a killing committed
by someone else, such as felony murder or the natural and
probable consequences doctrine—unless the People also prove
that the nonkiller defendant personally acted with the intent to
kill or was a major participant who acted with reckless disregard
to human life. (§§ 188, subd. (a)(3) & 189, subd. (e).) Specifically,
the Legislature amended section 188 to require that when the
felony-murder rule does not apply, a principal in the crime of
murder “shall act with malice aforethought” and “[m]alice shall
not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); People v. Gentile
(2020) 10 Cal.5th 830, 842–843 (Gentile).)
6
Section 1172.6 established a procedure for vacating the
murder convictions of defendants who could no longer be
convicted of murder because of Senate Bill No. 1437’s
amendments to sections 188 and 189. (Lewis, supra, 11 Cal.5th
at pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) After
appointing counsel upon the filing of a properly pleaded petition
for resentencing, the superior court must conduct a prima facie
analysis with briefing to determine the petitioner’s eligibility for
relief, and, if the requisite prima facie showing is made, issue an
order to show cause. (§ 1172.6, subd. (c); People v. Wilson (2023)
14 Cal.5th 839, 869.)
At the evidentiary hearing following issuance of an order to
show cause, the superior court acts as an independent fact finder.
(People v. Hill (2024) 100 Cal.App.5th 1055, 1065 (Hill); People v.
Garrison (2021) 73 Cal.App.5th 735, 745.) The prosecution bears
the burden of proving beyond a reasonable doubt that the
petitioner is guilty of murder or attempted murder under a
theory of murder that remains valid after Senate Bill No. 1437’s
amendments to the law of murder. (§ 1172.6, subd. (d)(3); People
v. Strong (2022) 13 Cal.5th 698, 709; Garrison, supra, at p. 745.)
The petitioner and the prosecutor may offer new or additional
evidence, and the court may consider evidence “previously
admitted at any prior hearing or trial that is admissible under
current law,” including witness testimony. (§ 1172.6, subd. (d)(3);
see Gentile, supra, 10 Cal.5th at pp. 853–854.)
Following an evidentiary hearing, we review the superior
court’s denial of the section 1172.6 petition for substantial
evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).)
Under this familiar standard, we examine the record “ ‘ “ ‘in the
light most favorable to the judgment below to determine whether
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it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” ’ ” (Ibid.) We resolve whether “ ‘any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] In so doing, [we] ‘presume[ ] in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (People v. Edwards
(2013) 57 Cal.4th 658, 715; People v. Vargas (2022) 84
Cal.App.5th 943, 951.) Finally, we uphold the superior court’s
ruling “ ‘unless it appears “that upon no hypothesis whatever is
there sufficient substantial evidence to support [it].” ’ ” (People v.
Cravens (2012) 53 Cal.4th 500, 508 (Cravens).)
B. The superior court’s finding that appellant acted
with implied malice is supported by substantial
evidence
Second degree implied malice murder remains a valid
theory of murder liability notwithstanding the changes to the law
of murder made by Senate Bill No. 1437. (People v. Schell (2022)
84 Cal.App.5th 437, 442 (Schell).) Appellant, however, argues
that substantial evidence does not support the superior court’s
determination that appellant acted with implied malice in
participating in the assault on Chavez that resulted in his death,
and the court therefore erred in denying appellant’s petition for
resentencing. We disagree.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express or
implied. (§ 188, subd. (a).) “The primary difference between
express malice and implied malice is that the former requires an
intent to kill but the latter does not.” (People v. Soto (2018) 4
8
Cal.5th 968, 976 (Soto).) Implied malice murder instead requires
the killing be proximately caused by an act, “ ‘ “ ‘the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.) “ ‘ “To
be considered the proximate cause of the victim’s death, the
defendant’s act must have been a substantial factor contributing
to the result, rather than insignificant or merely theoretical.” ’ ”
(Ibid.; id. at p. 989 [“To suffice for implied malice murder, the
defendant’s act must not merely be dangerous to life in some
vague or speculative sense; it must ‘ “involve[] a high degree of
probability that it will result in death” ’ ”]; Cravens, supra, 53
Cal.4th at p. 513 (conc. opn. of Liu, J.) [“Although an act that will
certainly lead to death is not required, the probability of death
from the act must be more than remote or merely possible”];
People v. Knoller (2007) 41 Cal.4th 139, 152 [“ ‘ “dangerous to
life” ’ ” means a “ ‘high degree of probability that’ ” the
defendant’s act “ ‘will result in death’ ”].)
Implied malice thus has “ ‘ “both a physical and a mental
component. The physical component is satisfied by the
performance of ‘an act, the natural consequences of which are
dangerous to life.’ ” ’ ” (Soto, supra, 4 Cal.5th at p. 974.) An
assault with fists will satisfy the physical component of implied
malice murder when the blows causing death are inflicted under
aggravating circumstances, that is, “ ‘in such a manner and
under such circumstances as to make the killing murder.’ ”
(Cravens, supra, 53 Cal.4th at p. 508, quoting People v. Munn
(1884) 65 Cal. 211, 212.)
9
The mental component of implied malice murder is the
requirement that the defendant “ ‘knows that his conduct
endangers the life of another and . . . acts with conscious
disregard for life.’ ” (Soto, supra, 4 Cal.5th at p. 974.) The
mental component is satisfied by the defendant’s “subjective
awareness that his conduct endangered [the victim’s] life [based
on] the circumstances of the attack alone, the natural
consequences of which were dangerous to human life.” (Cravens,
supra, 53 Cal.4th at p. 511.) The defendant’s conduct before and
after the attack may be considered in determining whether the
subjective awareness requirement has been met. (Ibid.)
Reviewing the entire record in the light most favorable to
the superior court’s ruling, we conclude substantial evidence
supports the conclusion that appellant is guilty of second degree
murder under a theory of implied malice that remains valid
following Senate Bill No. 1437’s amendments to the law of
murder. The superior court expressly found the physical
component of implied malice satisfied by the aggravated
circumstances of a beating that left the victim unable to move
and his race unrecognizable. These circumstances also permitted
the court to “infer[ ] [appellant’s] subjective awareness that his
conduct, punching and kicking Mr. Chavez to the point where his
race was undiscernible, and he could no longer move, endangered
Mr. Chavez’s life.” The court added that appellant’s “behavior
after the assault bolsters this finding: He took no steps to secure
emergency assistance for Mr. Chavez.”
The superior court’s findings are well supported by
substantial evidence in the record that showed appellant and
three other men punched, kicked, and stomped on Chavez with
such force as to cause four separate deadly hemorrhages in the
10
brain, break several ribs and a vertebra in his neck, and leave
shoe impressions on his chest and abdomen. Not only was
Chavez “beaten so badly around the face” that the officers who
found him could not even determine his race, but “[h]e was barely
breathing,” and the officers thought “he wasn’t going to make it
through the end of the day.” The officers “didn’t even know what
to touch or what type of first aid to start on him, he was so
messed up.” Chavez died at the hospital as a result of the severe
head injuries he sustained in the beating.
At his parole hearing, appellant confirmed his participation
in the severe beating, admitting he punched and kicked Chavez.
Appellant stated he did not leave the scene until the attack
stopped, and then simply walked away without securing any
assistance for Chavez as the man lay bleeding in the street,
wedged between two parked cars. Police did not discover Chavez
until over four hours after the assault.
Substantial evidence showed appellant’s active
participation in a prolonged attack on a defenseless victim. One
witness told police that Chavez tried to get away, but appellant
and his cohorts kept hitting and kicking him. Chavez fell to the
ground several times, and each time he tried to get up, “they
would just keep beating on him.” Another witness, 11-year-old
Brenda, was awakened by the noise of an altercation outside.
Brenda went to her balcony and saw several men beating
someone below. She retreated inside to find her father, and when
she returned, the fight was still going on. She went back to bed
before the beating ended. Both of these witnesses heard Chavez
begging the men to stop and leave him alone.
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C. Appellant’s claims that the superior court erred in
finding him guilty under a theory of implied malice
murder lack merit
Appellant’s argument that he could not be convicted of
second degree implied malice murder under current law borders
on incoherent. Appellant contends that he could not be convicted
of Chavez’s murder as an aider and abettor because all four
defendants were found to be equally liable, “so there was no
principal to aid and abet.” Appellant also asserts “[t]here is
simply no proof of Appellant’s malice, outside of his actions when
participating in the crime in question.”
Convicting all the participants in a murder does not depend
on the mechanical labeling of one actor as the “principal” and
identifying the others as “aiders and abettors.” Rather, “when a
person, with the mental state necessary for an aider and abettor,
helps or induces another to kill, that person’s guilt is determined
by the combined acts of all the participants as well as that
person’s own mens rea.” (People v. McCoy (2001) 25 Cal.4th
1111, 1122; Reyes, supra, 14 Cal.5th at pp. 990–991 [“ ‘[D]irect
aiding and abetting is based on the combined actus reus of the
participants and the aider and abettor’s own mens rea’ ”]; People
v. Powell (2021) 63 Cal.App.5th 689, 712–713.) As our Supreme
Court has explained, “the dividing line between the actual
perpetrator and the aider and abettor is often blurred. It is often
an oversimplification to describe one person as the actual
perpetrator and the other as the aider and abettor. When two or
more persons commit a crime together, both may act in part as
the actual perpetrator and in part as the aider and abettor of the
other, who also acts in part as an actual perpetrator.” (McCoy, at
p. 1120.)
12
Thus, even when it is unknown which of the participants in
a killing inflicted a fatal blow, all of the participants who acted
with a conscious disregard for the victim’s life and whose
combined acts caused the death may be convicted as aiders and
abettors to a second degree implied malice murder. (See Schell,
supra, 84 Cal.App.5th at p. 443 [for defendant to be liable for
murder under an implied malice theory, “[i]t suffices that he
knew he was aiding in a violent attack, knew dangerous weapons
were being used against [the victim], and intended to stop [the
victim] from escaping or defending himself by helping the
perpetrators to surround and hit him]; see also People v. Guillen
(2014) 227 Cal.App.4th 934, 984–985 [where 30 to 50 inmates
beat another inmate to death, sufficient evidence established
both the physical and mental components of implied malice
murder for inmates who authorized or participated in a beating
of another inmate, where the deadly attack took place over 30
minutes with as many as 50 inmates participating, and resulted
in injuries consistent with a high-velocity car accident].)
In Schell, the defendant was one of at least eight
participants in a vicious assault resulting in the victim’s death.
(Schell, supra, 84 Cal.App.5th at p. 440.) Although defendant
attacked with only his fists and feet, others beat the victim with a
baseball bat and a shovel, and someone stabbed the victim three
times. (Ibid.) On appeal from the denial of defendant’s section
1172.6 petition, the court determined that the defendant’s
“presence at the scene, his participation in the attack on the
victim, his companionship with other perpetrators, his conduct
before and after the crimes, and his motive of retaliation for
disrespect all support the [superior court’s] finding that he aided
and abetted an implied malice murder.” (Id. at p. 443.)
13
Here, notwithstanding the lack of evidence as to the
specific blows delivered by any particular defendant, the superior
court’s finding that appellant is guilty of implied malice murder
is supported by substantial evidence that established appellant’s
active participation in the deadly attack on Chavez. And because
the mental state of malice may be inferred from the
circumstances of the crime itself, substantial evidence also
supports the superior court’s finding that appellant harbored at
least a conscious disregard for Chavez’s life by taking part in a
vicious beating he knew was dangerous to human life. (Schell,
supra, 84 Cal.App.5th at p. 443.)
II. Appellant’s Claim of Prejudicial Error Under
Section 1382 Lacks Merit
Appellant contends the superior court violated his right to
a speedy trial under section 1382 by failing to issue the order to
show cause and conduct an evidentiary hearing under section
1172.6 in a timely manner. We disagree. Not only has section
1382 no application to postjudgment proceedings under section
1172.6, but appellant cannot show prejudice from any delay in
the superior court’s issuance of the order to show cause.
Article I, section 15 of the California Constitution provides
that “[t]he defendant in a criminal cause has the right to a speedy
public trial . . .” By prescribing “certain time periods within
which an accused must be ‘brought to trial,’ ” section 1382
implements an accused’s constitutional right to a speedy trial.
(Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 825;
Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776 [“To
implement an accused’s constitutional right to a speedy trial, the
Legislature enacted section 1382”].)
14
Specifically, section 1382, subdivision (a)(2), provides in
relevant part that in the absence of good cause for delay, the
court must dismiss a felony action when the “defendant is not
brought to trial . . . after the filing of the remittitur in the trial
court, or after the issuance of a writ or order which, in effect,
grants a new trial, within 60 days after notice of the writ or order
is filed in the trial court and served upon the prosecuting
attorney.” (§ 1382, subd. (a)(2), italics added.) By its plain
language then, section 1382 applies only when a defendant is not
“brought to trial” or when “the cause is to be tried again.”
(§ 1382, subd. (a)(2).)
Appellant cites no authority to support his claim that the
time limits in section 1382 apply to proceedings under section
1172.6 or, for that matter, any comparable postjudgment
proceeding. Even a remand for resentencing does not implicate
section 1382’s time limits because such a proceeding does not
involve a new trial or retrial of the case. (People v. Domenzain
(1984) 161 Cal.App.3d 619, 621 [“the language, history, and
context of section 1382 preclude its application to sentencing or
resentencing delay”].) “[C]ourts have uniformly held the sentence
modification procedure under section 1172.6 to constitute an act
of legislative lenity, not a new criminal prosecution. [Citations.]
[¶] Resentencing under section 1172.6 is a completely voluntary
process initiated by the petitioner, which cannot result in
additional punishment. [Citation.] It therefore does not
implicate double jeopardy concerns, and there is no Sixth
Amendment right to a jury. [Citations.] Indeed, ‘[a] petitioner
under section 1172.6 does not possess many of the constitutional
rights afforded to a criminal defendant at trial.’ ” (Hill, supra,
100 Cal.App.5th at pp. 1067–1068.)
15
Here, appellant’s conviction has never been overturned.
Rather, his case was remanded to the superior court for further
proceedings in accordance with section 1172.6 in which no right
to a new trial ever existed. Section 1382 plainly does not apply in
these circumstances and no violation of the statute occurred.
Finally, appellant cannot show prejudice from any delays in
issuing the order to show cause or conducting the section 1172.6
evidentiary proceeding. The superior court properly denied the
resentencing petition after finding appellant guilty, beyond a
reasonable doubt, of second degree implied malice murder.
Neither prompt issuance of the order to show cause nor an earlier
evidentiary hearing would have resulted in a different ruling.
DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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