Filed 3/1/21 P. v. McDaniels CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMARR MARQUIS MCDANIELS,

Defendant and Appellant.

 B305372

 (Los Angeles County

 Super. Ct. No. GA076378)

APPEAL from an order of the Superior Court of 

Los Angeles County, Jared D. Moses, Judge. Reversed.

Thomas T. Ono, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Before us is an appeal from the summary denial of 

Lamarr Marquis McDaniels’s petition seeking resentencing 

under Penal Code1 section 1170.95 which implemented 

Senate Bill No. 1437, making the natural and probable 

consequences doctrine unavailable to support a murder 

conviction. 

The trial court denied McDaniels’s resentencing petition 

because he failed to establish a prima facie case for resentencing 

on either his murder or attempted murder convictions. We 

reverse the trial court’s order as it relates to the murder 

conviction because the record of conviction does not show as a 

matter of law that McDaniels is not entitled to resentencing. 

We, however, find no error regarding denying McDaniels’s 

petition as to the attempted murder conviction because 

section 1170.95 does not provide for resentencing of attempted 

murder convictions. We thus remand the case to the trial court 

to issue an order to show cause as to McDaniels’s murder 

conviction only. 

BACKGROUND

1. Information and Conviction

In May 2020, the People charged McDaniels and three 

codefendants with the murder of Miguel Sanchez. The People 

further alleged a firearm enhancement within the meaning of 

section 12022.53, subdivisions (b), (c), (d), and (e)(1). The People 

also charged McDaniels and his confederates of the attempted 

murder of Salvador Velasquez and alleged a firearm 

enhancement within the meaning of section 12022.53, 

1 Undesignated statutory citations are to the Penal Code. 
3

subdivisions (b) and (e)(1). With respect to both counts, the 

People alleged a gang enhancement under section 186.22. The 

People charged McDaniels with possession of a firearm by a felon 

and, in connection with that count, listed four prior felony 

convictions. As explained below, McDaniels was tried twice on 

the murder and attempted murder charges.

In our prior opinion following McDaniels’s second jury trial 

(People v. McDaniels et al. (Mar. 9, 2015, B250574) [nonpub. opn.]

(McDaniels I), we described the facts, which we now summarize.

2 

There was evidence that McDaniels and the shooter were 

members of the Duroc Crips gang. The day before the shooting, 

McDaniels gave the shooter a gun. On February 9, 2008, 

McDaniels drove the shooter and two other Duroc Crips gang 

members or associates, and McDaniels indicated the group was 

going to “hit some corners.” When victims Miguel Sanchez and 

Salvador Velasquez were walking, McDaniels made a sharp turn 

and proceeded towards them. McDaniels slowed the vehicle to 

allow his passenger to shoot the victims. McDaniels’s passenger 

began to shoot numerous shots in rapid succession. Sanchez was 

killed. Velasquez survived. 

A gang expert testified that the shootings were in 

retaliation for an earlier gang shooting. The gang expert also 

testified that “hitting corners,” meant “going into a rival gang’s 

territory to look for an enemy to attack.” (McDaniels I, supra, 

B250574.) 

2 In evaluating a section 1170.95 petition, we may rely on 

the record of conviction including this court’s prior opinions. 

(People v. Verdugo (2020) 44 Cal.App.5th 320, 333 (Verdugo), 

review granted Mar. 18, 2020, S260493.) 
4

The shooter testified that no one in the car knew he had a 

gun. According to the shooter, when McDaniels gave him the gun 

it was not loaded. The shooter admitted to firing the gun at 

Sanchez and Velasquez and testified that he fired at them for 

personal reasons. 

The first jury convicted McDaniels of being a convicted 

felon in possession of a firearm. The jury was not able to reach a 

verdict on the murder and attempted murder charges. 

In a second trial, McDaniels was tried along with the 

shooter. The second jury convicted McDaniels and the shooter of 

first degree murder. (All further references to the jury are to the 

second jury.) The jury further found that a principal personally 

used a firearm and that the gang enhancement was true. The 

jury also convicted McDaniels and the shooter of willful, 

deliberate, and premediated attempted murder and further found 

that a principal personally used a firearm. The jury found the 

gang enhancement true in connection with the attempted 

murder. 

The trial court sentenced McDaniels to a total 

indeterminate term of 90 years to life and a concurrent two-year 

determinate term. 

2. Jury Instructions

At McDaniels’s second trial, the jury instructions included 

the following. “To prove that the defendant is guilty of Murder 

and/or Attempted murder, the People must prove that: [¶]

1. The defendant is guilty of Assault with a Semi-automatic 

firearm, or Carrying a concealed firearm; [¶] 2. During the 

commission of Assault with a Semi-automatic firearm, or 

Carrying a concealed firearm, a coparticipant in that Assault 

with a Semi-automatic firearm or Carrying a concealed firearm 
5

committed the crime of Murder and Attempted Murder; [¶] AND 

[¶] 3. Under all of the circumstances, a reasonable person in the 

defendant’s position would have known that the commission of 

the Murder and/or Attempted Murder was a natural and 

probable consequence of the commission of the Assault with a 

Semi-automatic firearm or Carrying a concealed firearm. [¶] . . .

[¶] If you decide that the defendant, Lamarr McDaniels, aided 

and abetted one of these crimes and that Murder and or 

Attempted Murder was a natural and probable consequence of 

that crime, the defendant is guilty of Murder and/or Attempted 

Murder. You do not need to agree about which of these crimes 

the defendant aided and abetted.” (McDaniels I, supra, 

B250574.)

The court instructed the jury on two theories of first degree 

murder—willful, deliberate, and premediated murder, and 

murder committed by intentionally shooting from a motor vehicle 

at a person outside the vehicle with intent to kill. 

The court further instructed the jury: “The defendants 

[McDaniels and the shooter] are charged in Count 1 with murder 

in violation of Penal Code section 187. [¶] To prove that the 

defendants are guilty of this crime, the People must prove that: 

[¶] 1. The defendant committed an act that caused the death of 

another person; [¶] AND [¶] 2. When the defendant acted, he 

had a state of mind called malice aforethought. [¶] There are 

two kinds of malice aforethought, express malice and implied 

malice. Proof of either is sufficient to establish the state of mind 

required for murder. [¶] The defendant acted with express 

malice if he unlawfully intended to kill. [¶] The defendant acted 

with implied malice if: [¶] 1. He intentionally committed an act; 

[¶] 2. The natural and probable consequences of the act were 
6

dangerous to human life; [¶] 3. At the time he acted, he knew 

his act was dangerous to human life; [¶] AND [¶] 4. [H]e 

deliberately acted with conscious disregard for human life.” 

(McDaniels I, supra, B250574.) 

3. Prior Appeal

McDaniels, who was not the actual shooter, previously 

appealed from the judgment of conviction. In the time between 

his trial and the appellate decision, our Supreme Court decided 

People v. Chiu, which held that an “aider and abettor may not be 

convicted of first degree premeditated murder under the natural 

and probable consequences doctrine. Rather, his or her liability 

for that crime must be based on direct aiding and abetting 

principles.” (People v. Chiu (2014) 59 Cal.4th 155, 158–159.) 

Chiu further held that a first degree murder conviction requires 

reversal unless the reviewing court concludes “beyond a 

reasonable doubt that the jury based its verdict on the legally

valid theory that defendant directly aided and abetted the 

premediated murder.” (Id. at p. 167.) Chiu “left in place natural 

and probable consequences liability for second degree murder.” 

(People v. Gentile (2020) 10 Cal.5th 830, 845 (Gentile).) 

In McDaniels I, we held that McDaniels’s conviction for 

first degree murder must be conditionally reversed because it was 

inconsistent with Chiu. We gave the People a choice: either 

accept a reduction of the murder conviction to second degree 

murder or retry the murder charge as to McDaniels. We affirmed 

McDaniels’s remaining convictions. In doing so, we concluded 

that the jury could have convicted McDaniels either based on 

direct aiding and abetting liability or based on a conclusion that 

murder was the natural and probable consequences of either 

assault with a semiautomatic firearm or carrying a concealed 
7

weapon. We explained: “[E]vidence that McDaniels gave [his 

confederate] the gun was uncontradicted, and the jury 

instructions permitted the jury to convict McDaniels of first 

degree premediated murder by concluding he aided and abetted 

the crime of carrying a concealed firearm. . . . Nothing in the 

record permits us to conclude beyond a reasonable doubt that the 

jury did not, in fact, adopt that analysis and base its verdict on a 

legally invalid theory.” (McDaniels I, supra, B250574.) We 

further held that substantial evidence supported McDaniels’s

murder conviction as a direct aider and abettor. 

4. Resentencing After McDaniels I

The People elected not to retry defendant. The trial court 

resentenced him to a total indeterminate term of 80 years to life 

and again ordered the two-year determinate term to run 

concurrently. 

5. Petition for Resentencing

On June 10, 2019, McDaniels filed in propria persona a 

petition for resentencing. He alleged that he was convicted of 

murder pursuant to the natural and probable consequences 

doctrine. McDaniels alleged that he could no longer be convicted 

of murder because of changes to sections 188 and 189, effective 

January 1, 2019. McDaniels requested that counsel be appointed 

for him. 

The trial court appointed counsel to represent McDaniels. 

The People opposed McDaniels’s petition for resentencing 

arguing, among other things, that there was sufficient evidence 

to convict him of directly aiding and abetting the murder. 

Through counsel, McDaniels filed a response arguing that 

the jury was instructed on the “now prohibited” theory of natural 
8

and probable consequences doctrine and that alone demonstrated

a prima facie case for relief under section 1170.95. McDaniels 

also sought resentencing for his attempted murder conviction. 

6. Trial Court’s Denial of McDaniels’s Petition

The trial court denied McDaniels’s petition for 

resentencing, finding he failed to establish a prima facie case for 

relief. The court also concluded that section 1170.95 does not 

apply to attempted murder convictions. 

DISCUSSION

Prior to the enactment of Senate Bill No. 1437, a defendant 

who aided and abetted a crime that resulted in a victim’s death 

could be convicted under the natural and probable consequences 

theory even if the defendant did not act with malice. (People v. 

Offley (2020) 48 Cal.App.5th 588, 595 (Offley).) “The natural and 

probable consequences doctrine provides that ‘ “[a] person who 

knowingly aids and abets criminal conduct is guilty of not only 

the intended crime [target offense] but also of any other crime the 

perpetrator actually commits [nontarget offense] that is a natural 

and probable consequence of the intended crime. . . .” [Citation.]’

[Citation.] The doctrine ‘ “imposes vicarious liability for any 

offense committed by the direct perpetrator that is a natural and 

probable consequence of the target offense. . . .” [Citation.]’ ” 

(People v. Duke (2020) 55 Cal.App.5th 113, 120 (Duke), review 

granted Jan. 13, 2021, S265309.) 

The Legislature enacted Senate Bill No. 1437 “after 

determining that there was further ‘need for statutory changes to 

more equitably sentence offenders in accordance with their 

involvement in homicides.’ ” (Gentile, supra, 10 Cal.5th at 

pp. 838–839.) Senate Bill No. 1437 changed the law on murder 
9

and added section 1170.95, which allows defendants convicted of 

murder based on the natural and probable consequences doctrine 

to petition for resentencing.3 Senate Bill No. 1437 did not alter 

the viability of a murder conviction based on direct aiding and 

abetting liability. “One who directly aids and abets another who 

commits murder is thus liable for murder under the new law just 

as he or she was liable under the old law.” (Offley, supra, 

48 Cal.App.5th at pp. 595–596.) 

Section 1170.95 sets forth a multistep decision process. If 

the petitioner makes a prima facie showing that he or she is 

eligible for and entitled to relief under the statute, then the trial 

court “shall issue an order to show cause.” (§ 1170.95, subds. (b)

& (c); Verdugo, supra, 44 Cal.App.5th at pp. 328–329, review 

granted.) “ ‘A prima facie showing is one that is sufficient to 

support the position of the party in question.’ ” (People v. Lewis

(2020) 43 Cal.App.5th 1128, 1137 (Lewis), review granted 

Mar. 18, 2020, S260598.) 

We recently explained the requirements for a petitioner to 

establish a prima facie case for resentencing under section 

1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154

(Nguyen).) “Under section 1170.95, subdivision (a), ‘A person 

convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court 

that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply: [¶] (1) A 

complaint, information, or indictment was filed against the 

3 Section 1170.95 also applies to felony murder. That 

doctrine is not at issue in this case. 
10

petitioner that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of 

first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder. [¶] (3) The 

petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 

1, 2019.’ ” (Nguyen, at p. 1164.) 

“In determining whether a petitioner has made a prima 

facie showing that he or she is entitled to relief, the ‘trial court 

should not evaluate the credibility of the petition’s assertions, but 

it need not credit factual assertions that are untrue as a matter 

of law—for example, a petitioner’s assertion that a particular 

conviction is eligible for relief where the crime is not listed in 

subdivision (a) of section 1170.95 as eligible for resentencing. 

Just as in habeas corpus, if the record “contain[s] facts refuting 

the allegations made in the petition . . . the court is justified in 

making a credibility determination adverse to the petitioner.”

[Citation.] However, this authority to make determinations 

without conducting an evidentiary hearing pursuant to 

section 1170.95, [subdivision] (d) is limited to readily 

ascertainable facts from the record (such as the crime of 

conviction), rather than factfinding involving the weighing of 

evidence or the exercise of discretion . . . .’ ” (Nguyen, supra,

53 Cal.App.5th at pp. 1165–1166.) We explained that a petitioner 

fails to establish a prima facie showing if the petition is untrue as 

a matter of law. (Ibid.) 

We reached the same conclusion in People v. Swanson

(2020) 57 Cal.App.5th 604, 612 (Swanson), review granted 
11

February 17, 2021, S266262, stating that the “contents of the 

record of conviction defeat a prima facie showing when the record 

shows as a matter of law that the petitioner is not eligible for 

relief.” (See also People v. Duchine (Feb. 9, 2021, A157980) __ 

Cal.App.5th __ [2021 Cal.App.Lexis 114 at pp. *25–*26] [“absent 

a record of conviction that conclusively establishes that the 

petitioner engaged in the requisite acts and had the requisite

intent,” the petitioner has established a prima facie case]; People 

v. Drayton (2020) 47 Cal.App.5th 965, 982 [reversing the trial 

court’s order finding no prima facie case because the trial court 

engaged in factfinding that was not supported as a matter of law 

by the record of conviction]; but see People v. Garcia (2020) 

57 Cal.App.5th 100, 116, review granted Feb. 10, 2021, S265692)

[“The trial court should not accept the petitioner’s assertions as 

true and issue an order to show cause if substantial evidence in 

the record supports a murder conviction under current law.”].) 

We previously explained, and it is undisputed that, if the 

petitioner makes a prima facie showing that he or she is entitled 

to relief, the court shall issue an order to show cause. (Offley, 

supra, 48 Cal.App.5th at p. 596.) 

A. McDaniels Established a Prima Facie Case for 

Resentencing of His Murder Conviction

McDaniels argues, and the Attorney General agrees, that 

the trial court erred in denying McDaniels’s petition for 

resentencing without issuing an order to show cause and holding 

a hearing with respect to the murder conviction. As we explain, 

we agree with the parties.

In Lewis, supra, we concluded the petitioner did not 

establish a prima facie case for resentencing. (43 Cal.App.5th 

1128, review granted.) The trial court instructed the jury on 
12

natural and probable consequence theory, on direct aiding and 

abetting, and on conspiracy. (Id. at p. 1133.) The jury verdict did 

not indicate upon which murder theory it relied. (Ibid.) In a 

direct appeal from the judgment of conviction, this court 

concluded that it was error to give the natural and probable 

consequences instruction but the error was harmless beyond a 

reasonable doubt based “on ‘strong evidence’ that defendant 

‘directly aided and abetted [the perpetrator] in the premeditated 

murder of [the victim].’ ” (Id. at p. 1134.) Because the evidence 

was so strong, “we held that the record established that the jury 

found defendant guilty beyond a reasonable doubt on the theory 

that he directly aided and abetted the perpetrator of the murder.” 

(Id. at pp. 1138–1139.) Prior to petitioner’s petition for 

resentencing, “[t]he issue whether defendant acted as a direct 

aider and abetter ha[d] thus been litigated and finally decided 

against” the petitioner. (Ibid.) Therefore, the petitioner could 

not establish a prima facie case for resentencing under 

section 1170.95. 

In Offley, we again considered whether a petitioner 

established a prima facie case for resentencing under section 

1170.95. The jury was instructed that “ ‘[a] member of a 

conspiracy is not only guilty of the particular crime that to his 

knowledge his confederates agreed to and did commit, but is also 

liable for the natural and probable consequences of any crime of a 

co-conspirator to further the object of the conspiracy . . . .’ ” 

(Offley, supra, 48 Cal.App.5th at p. 593.) We held that because

“we cannot rule out the possibility that the jury relied on the 

natural and probable consequences doctrine in convicting Offley,”

he was not “ ‘ineligible for relief as a matter of law.’ ” (Id. 

at p. 599.) In contrast to Lewis, where the instructional error 
13

was harmless beyond a reasonable doubt, in Offley, the jury could 

have relied on the natural and probable consequences doctrine. 

Like in Offley and in contrast to Lewis, the error in 

instructing McDaniels’s jury on natural and probable 

consequences was not harmless beyond a reasonable doubt. In 

McDaniels’s prior appeal, we explained: “Nothing in the record 

permits us to conclude beyond a reasonable doubt that the jury 

did not . . . base its verdict on a legally invalid theory” of natural 

and probable consequences. (McDaniels I, supra, B250574.) 

Because the record of conviction does not refute as a matter of 

law McDaniels’s statement that he was convicted based on the 

natural and probable consequences doctrine, the trial court erred 

in summarily denying McDaniels’s petition. (Swanson, supra, 

57 Cal.App.5th at p. 612, review granted [“The contents of the 

record of conviction defeat a prima facie showing when the record 

shows as a matter of law that the petitioner is not eligible for 

relief.”]; Nguyen, supra, 53 Cal.App.5th at pp. 1165–1166 [no 

prima facie showing if petition untrue as a matter of law]; Lewis, 

supra, 43 Cal.App.5th at p. 1138, review granted [no prima facie 

case when record of conviction shows as a matter of law that the 

petitioner is not eligible for relief].)4 

4 The conclusion that McDaniels established a prima facie 

case for resentencing is consistent with Duke, supra, 

55 Cal.App.5th 113, review granted. In Duke, as here, in an 

appeal from the judgment of conviction, this court conditionally 

reversed the first degree murder conviction because “we could not 

rule out the possibility that the jury relied on the natural and 

probable consequences doctrine to convict Duke . . . .” (Id. at 

p. 119.) Jurors could have convicted Duke based on the natural 

and probable consequences doctrine based on aiding and abetting 

a premediated murder. (Id. at pp. 122–123.) Duke filed a 
14

The Attorney General correctly argues: “Although the facts 

strongly support a finding that [McDaniels] directly aided and 

abetted murder (and thus is ineligible for resentencing relief)” 

the record of conviction does not support that conclusion as a 

matter of law. It follows that the case must be remanded for the 

trial court to issue an order to show cause. (§ 1170.95, subd. (c).) 

At the order to show cause hearing, the trial court may review 

the record of conviction and any new evidence proffered by the 

parties. (Id., subd. (d)(3).) Because we remand the matter for the 

trial court to conduct an order to show cause hearing, we need not 

consider the parties’ additional arguments concerning why the 

trial court should issue an order to show cause. We also express 

no opinion on how the trial court should rule at the order to show 

cause hearing. 

B. Section 1170.95 Does Not Apply to a Conviction for 

Attempted Murder

McDaniels next argues that he is eligible for resentencing 

on his conviction for attempted murder. Although some courts 

have held that Senate Bill No. 1437 applies to nonfinal

convictions for attempted murder (see, e.g., People v. Medrano

petition for resentencing, and the trial court found that Duke 

established a prima facie case for resentencing, set an order to 

show cause, and held a hearing on Duke’s eligibility for 

resentencing. (Id. at p. 119.) On appeal, this court 

considered the prosecution’s standard at the section 1170.95, 

subdivision (d)(3) hearing. (Duke, at p. 119.) Just as the 

petitioner in Duke, McDaniels is entitled to a hearing under 

section 1170.95, subdivision (d)(3) because we cannot rule out the 

possibility that the jury in his original trial relied upon a natural 

and probable consequences theory. 
15

(2019) 42 Cal.App.5th 1001, 1015–1016, review granted 

Mar. 11, 2020, S259948), “[n]o court has held that Senate 

Bill 1437 applies retroactively to final convictions of 

attempted murder,” (People v. Harris (Feb. 3. 2021, E074136) 

___ Cal.App.5th ___, ___ [2021 Cal.App.Lexis 96 at pp. *5–*6]). 

Pending guidance from our high court, we agree that section 

1170.95 does not apply to final convictions for attempted 

murder.5 (See, e.g., Harris at p. *6; People v. Alaybue (2020) 

51 Cal.App.5th 207, 222 (Alaybue); Lopez, supra, 38 Cal.App.5th 

at pp. 1104–1105, review granted.) 

This conclusion is consistent with the plain language of 

section 1170.95. Section 1170.95 allows the petitioner to seek 

only “to have [his or her] murder conviction vacated and to be 

resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).) 

Subdivision (d)(1) of section 1170.95 permits the trial court to 

conduct a hearing “to determine whether to vacate the murder 

conviction” and subdivision (d)(2) similarly refers only to a 

“murder conviction.” Because the statute does not refer to 

attempted murder, the plain language refutes McDaniels’s 

arguments that the Legislature intended section 1170.95 to 

apply to attempted murder. (Lopez, supra, 38 Cal.App.5th at 

pp. 1104–1105, review granted.) Further, “[i]n deciding to omit 

attempted murder from the ambit of Senate Bill 1437, the 

Legislature could have reasonably concluded that the need to 

address sentencing reform was more appropriately directed at 

5 Whether Senate Bill 1437 applies to attempted murder 

liability under the natural and probable consequences doctrine is 

currently pending in our Supreme Court. (People v. Lopez (2019) 

38 Cal.App.5th 1087 (Lopez), review granted Nov. 13, 2019, 

S258175.) 
16

persons convicted of murder as opposed to attempted murder. 

This is so because the punishment for attempted murder is 

generally far less than the punishment imposed for murder.” 

(Alaybue, supra, 51 Cal.App.5th at p. 224.) 

DISPOSITION

The order denying McDaniels’s petition for resentencing is 

reversed. Upon remand, the trial court shall issue an order to 

show cause and conduct a hearing in accordance with Penal Code 

section 1170.95, subdivision (d). 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.