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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent,

v.

ANTHONY MCDANIEL, JR.,

 Defendant and Appellant.

2d Crim. No. B308845

(Super. Ct. No 2007027559)

(Ventura County)

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.
2

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 
3

the street. (People v. McDaniel, supra, B226763.) The jury was 

not instructed with the natural and probable consequences 

doctrine. In denying his section 1170.95 petition,the trial court 

found McDaniel was not eligible for relief because he “was the 

actual killer and the killing was nothing less than a willful, 

premeditated and deliberate murder of Daniel Q.” The record 

supports that finding.

McDaniel contends the trial court erred by ruling that his 

two attempted murder convictions could not be resentenced 

under section 1170.95 because that section applies only to 

murder convictions. He notes that the Legislature recently 

passed Senate Bill No. 775 (2021-2022 Reg. Sess.) that includes 

resentencing relief for attempted murder convictions. (§ 1170.95, 

as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)

But even applying Senate Bill No. 775 here, the result 

would not change because McDaniel is not eligible for section 

1170.95 relief. The two counts of attempted murder stem from an 

incident where McDaniel entered a bakery, and while attempting 

to commit a robbery there, he shot Pablo M. twice in the back and 

once in the buttocks after Pablo M. tried to move away.

McDaniel shot Cesar N. in the arm after Cesar N. tried to hide 

next to a pillar. (People v. McDaniel, supra, B226763.) 

For attempted murder,the jury was not instructed with the 

natural and probable consequences doctrine. In denying 

McDaniel’s section 1170.95 petition,the trial court found, 

“Petitioner’s attempted murder convictions rest on a willful 

attempted killing with malice aforethought. The jury was 

instructed that a conviction of attempted murder required a 

finding that Petitioner specifically intended to commit the crime 

of murder. As to two victims, the jury found that Petitioner had
4

the requisite intent to kill and that, as to all the victims of this 

violent episode, Petitioner was the actual shooter. Petitioner’s 

convictions are based solely on his own behavior and intent and 

[do] not flow from the behavior or intent of a co-participant.”

McDaniel contends the trial court erred by not appointing 

counsel for him. But a failure to appoint counsel on a section

1170.95 petition is reviewed under a harmless error standard 

under People v. Watson (1956) 46 Cal.2d 818. (People v. Lewis

(2021) 11 Cal.5th 952, 957-958.) Because of the facts of this case,

and because he is not eligible for section 1170.95 relief, any error 

is harmless. 

McDaniel claims his appointed appellate counsel should not 

have filed a Wende brief. Given the record, there is no showing 

that his counsel has not provided adequate assistance or erred by 

filing a Wende brief. (People v. Mendoza Tello (1997) 15 Cal.4th

264, 266-267.)

We have reviewed McDaniel’s remaining contentions and 

we conclude that he has not shown grounds for a reversal of the 

order denying his section 1170.95 petition.

After examination of the record, we are satisfied that no 

arguable issues exist. (People v. Wende, supra, 25 Cal.3d at pp.

441, 443.) 

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J. TANGEMAN, J.
5

Patricia M. Murphy, Judge

Superior Court County of Ventura

______________________________

Laini Millar Melnick, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.