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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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.
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We filed an unpublished opinion on December 17, 2021, affirming the trial court’s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
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defendant felt that he ‘needed three’ perpetrators. In accordance with the plan, defendant
was one of three culprits who went into [the victim’s] home and robbed him. Following
the theft and killing, a dispute arose regarding the splitting of the loot. During the
argument, defendant declared that he had a ‘big part’ in the crimes, that he had done most
of the ‘hard work,’ and that he had assumed ‘all the risk.’ [¶] This evidence leads to the
conclusion that defendant was a major participant in the crimes that resulted in Peterson’s
death.” (Ibid.)
We also concluded sufficient evidence supported the conclusion defendant acted
with reckless indifference to human life, saying, “[d]efendant, Pennucci, and Cook
entered [the victim’s] home with the intent to steal valuable property from him. They
were armed with guns, thus demonstrating that they were prepared to confront anyone
they found in the residence and take the property by force if necessary. It was well-
known that [the victim] was a drug user, who himself possessed a gun. In these
circumstances, ‘[d]efendant had to be aware of the risk of resistance to such an armed
invasion of the home and the extreme likelihood death could result.’ (People v. Mora
(1995) 39 Cal.App.4th 607, 617.) [¶] Regardless of what role that defendant played in
the actual shooting, he was liable for the special circumstance because he was a major
participant in the burglary and robbery, who acted with reckless indifference to human
life in committing those crimes.” (McDaniel, supra, C092707.)
On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437), which was enacted to “amend the felony murder rule and the natural and probable
consequences doctrine, . . . to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life,” became
effective. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 achieved these goals
by amending section 188 to require that a principal act with express or implied malice
(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state
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that a person can be liable for felony murder only if (1) “[t]he person was the actual
killer”; (2) the person, with an intent to kill, was an aider or abettor “in the commission of
murder in the first degree”; or (3) “[t]he person was a major participant in the underlying
felony and acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as
amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also added former section 1170.95 to provide the resentencing
petition process for a “person convicted of felony murder or murder under a natural and
probable consequences theory.” (Former § 1170.95, subd. (a).) Effective June 30, 2022,
former section 1170.95 was renumbered section 1172.6, without any changes in text.
(Stats. 2022, ch. 58, § 10.) Section 1172.6 includes a prima facie determination. Under
subdivision (c), the trial court must receive briefing from the parties and “determine
whether the petitioner has made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the court shall issue an order
to show cause. If the court declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (§ 1172.6, subd. (c).)
In 2019, defendant filed a form petition for resentencing under former section
1170.95. In the petition, defendant declared that a complaint, information, or indictment
had been filed against him that allowed the prosecution to proceed under a theory of
felony-murder or murder under the natural and probable consequences doctrine, that he
was convicted of first degree murder under the felony-murder rule or the natural and
probable consequences doctrine, and that he could not now be convicted of first degree
murder based on the recent changes to sections 188 and 189. He requested that the court
appoint him counsel.
The trial court appointed counsel and received briefing from the parties.
Defendant noted the special circumstance findings in his case had occurred before the
Supreme Court’s opinions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark), which “ ‘clarified the plain requirements’ ” of
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section 190.2, and defendant asked the trial court to conduct a review of the facts “to
determine if a jury would [now] find the special circumstance[s] to be true.”
The court then issued a written decision denying the petition. The court concluded
former section 1170.95 was not the appropriate method to determine “the sufficiency of
the evidence of the special circumstance finding[s] in light of Banks and Clark.” The
trial court observed that there is a split in appellate authority as to whether a defendant in
this situation must first seek habeas relief to challenge his special circumstance findings.
After considering cases from both sides of the split, the court was persuaded that a former
section 1170.95 “proceeding is not one in which the sufficiency of the evidence of the
felony-murder special circumstance may be relitigated in light of the decisions in Banks
and Clark . . . defendant instead must seek relief from the special circumstance on that
basis in a habeas corpus proceeding.” Thus, because the special circumstance findings
established defendant had, at minimum, “been a major participant in the burglary and
robbery who acted with reckless indifference to human life,” he could still be convicted
of murder and was ineligible for relief. The court denied the petition.
DISCUSSION
Defendant argues the pre-Banks/Clark special circumstance findings should not
have precluded his eligibility for relief under former section 1170.95. Because the jury’s
special circumstance findings were made before the rulings in Banks and Clark,
defendant claims the jury did not conclusively establish defendant was a major
participant who acted with reckless indifference to human life as those terms are now
understood. We agree.
Section 190.2, subdivision (d) provides that, for the purposes of those special
circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), an
aider and abettor must have been a “major participant” and have acted “with reckless
indifference to human life.” (§ 190.2, subd. (d); Tapia v. Superior Court (1991)
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53 Cal.3d 282, 298.) Thus, at the time of the trial court’s decision, a special circumstance
finding arguably satisfied the requirements for accomplice murder liability, even after
Senate Bill 1437. (§ 189, subd. (e).)
Following the trial court’s decision, however, the Supreme Court issued its
decision in Strong, supra, 13 Cal.5th 698, which concluded that “[f]indings issued by a
jury before Banks and Clark do not preclude a defendant from making out a prima facie
case for relief under Senate Bill 1437.” (Id. at p. 710.)
Considering the issue in the context of issue preclusion, the court observed,
“Banks and Clark represent the sort of significant change that has traditionally been
thought to warrant reexamination of an earlier-litigated issue. Our earlier discussion of
habeas corpus petitioners who have obtained relief from their felony-murder special
circumstances in the wake of Banks and Clark [citation] does much to explain why:
There are many petitioners with pre-Banks and Clark felony-murder special-circumstance
findings who nevertheless could not be convicted of murder today. Senate Bill 1437
requires petitioners seeking resentencing to make out a prima facie case that they ‘could
not presently be convicted of murder or attempted murder because of changes to [Penal
Code] Section 188 or 189 made effective January 1, 2019.’ (§ 1172.6, subd. (a)(3).) A
pre-Banks and Clark special circumstance finding does not negate that showing because
the finding alone does not establish that the petitioner is in a class of defendants who
would still be viewed as liable for murder under the current understanding of the major
participant and reckless indifference requirements.” (Strong, supra, 13 Cal.5th at pp.
717-718.)
The Supreme Court also considered whether “a court may reject a petition at the
prima facie stage if it independently examines the record and determines, applying
the Banks and Clark standards, that sufficient evidence supports the earlier findings.”
(Strong, supra, 13 Cal.5th at p. 719.) Noting the differences between pre- and post-
Banks and Clark special circumstance requirements, the Supreme Court observed the
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changes may “have altered what evidence defense counsel would have sought to
introduce . . . might have fundamentally altered trial strategies,” and may have affected
what jury instructions were requested or given. (Id. at p. 719.) “An after-the-fact court
review of a pre-Banks and Clark record does not account for all these differences. . . .
And as the Legislature has made explicit in a recent amendment to the predecessor to
section 1172.6, a court determination that substantial evidence supports a homicide
conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.]
Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary
hearing in the first place.” (Id. at p. 720, fn. omitted.) Thus, neither “the jury’s pre-
Banks and Clark findings nor a court’s later sufficiency of the evidence review amounts
to the determination section 1172.6 requires, and neither set of findings supplies a basis
to reject an otherwise adequate prima facie showing and deny issuance of an order to
show cause.” (Strong, at p. 720.) Nor is there any requirement that a defendant first seek
relief from such findings via habeas petition. (Id. at p. 714.)
Accordingly, neither the pre-Banks/Clark special circumstance finding in
defendant’s case nor our conclusion that substantial evidence supported that finding
precludes defendant’s eligibility for relief as a matter of law. The trial court’s decision is
thus no longer supported, and we must reverse the order denying defendant’s petition.
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DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is reversed.
The matter is remanded for the trial court to issue an order to show cause and conduct
further proceedings consistent with section 1172.6, subdivision (c).
HULL, Acting P. J.
We concur:
DUARTE, J.
RENNER, J.
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