Opinion
B305707
04-21-2021
THE PEOPLE, Plaintiff and Respondent, v. RASHON TREMAIN McDANIELS, Defendant and Appellant.
Rashon Tremain McDaniels, in pro. per.; Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (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.
BACKGROUND
In 2010, a jury found appellant and a co-defendant guilty of premeditated attempted murder and shooting at an inhabited dwelling. 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.)
A third co-defendant pleaded guilty before trial.
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 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. (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.
"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.)
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 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 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.
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 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. --------
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.