People v. Neely CA2/6 ( 2023 )

Filed 7/17/23 P. v. Neely 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B320669
(Super. Ct. No. TA084532)
Plaintiff and Respondent, (Los Angeles County)
v.
JALIEL RASHAD NEELY,
Defendant and Appellant.
This is the third appeal arising from Jaliel Rashad Neely’s
2007 convictions for murder and attempted robbery. We affirmed
the convictions in People v. Neely (2009) 176 Cal.App.4th 787,
791, 793 (Neely I).) A second appeal followed the denial of his
petition for resentencing under Penal Code section 1172.6.1 We
reversed the denial, vacated his murder conviction, and
remanded for resentencing on the remaining counts. (People v.
All undesignated statutory references are to the Penal
1
Code unless otherwise stated.
Neely (March 1, 2022, B303324) [nonpub. opn.] (Neely II).) This
third appeal follows his resentencing on remand.
Neely contends the trial court erred when it imposed a
firearm enhancement on each of his two attempted robbery
convictions, then selected the high and middle terms on those
convictions instead of the low term. He also requests we
terminate his current parole supervision. We reverse and
remand for resentencing but decline to address Neely’s parole
supervision because the issue is not properly before the court.
FACTUAL AND PROCEDURAL BACKGROUND2
Brandon Meeks, Neely, and M.W. entered Oluwaseyi
Awoleye’s cell phone store in 2005. Meeks made his way behind
the counter, pushed Awoleye to the floor, and held a gun to his
head. Neely and M.W. remained in the front area where 18-year-
old Johnny King worked at a computer terminal. Awoleye heard
one of the suspects in front yelling at King. Seconds later a gun
fired and all three suspects fled. Awoleye got up and found King
lying face down on the ground. He later died from a single
gunshot wound to the chest.
Awoleye picked the suspects out of a photographic lineup
the next day. He identified Meeks as the one who held him at
gunpoint. Awoleye recognized Neely and M.W. but could not
confirm which one shot King. He remembered M.W. from a prior
store visit and gave police an address M.W.’s mother left on a cell
service application. Police quickly arrested all three suspects.
Neely admitted they planned to steal cell phones but denied
carrying a gun into the store. He blamed M.W for shooting King.
2The facts are adapted from our opinion on Neely’s direct
appeal. (Neely I, supra, 176 Cal.App.4th at pp. 792-793.)
2
Original Charges
Prosecutors charged Neely and Meeks with first degree
murder (count 1) (§§ 187, subd. (a); 189) and two counts of second
degree attempted robbery – one naming King as the victim (count
2) and the other Awoleye (count 4) (§§ 664/211). Neely also faced
a single count of possession of cocaine base for sale (count 3)
(Health & Saf. Code, § 11351.5). M.W. was not charged.
Count 1 included a robbery-murder special circumstance.
(§ 190.2, subd. (a)(17).) Counts 1 and 4 (Awoleye attempted
robbery) included a gang enhancement (§ 186.22, subd. (b)(1)(A))
and three firearms enhancements (§ 12022.53, subds. (b)-(d)).3
Count 2 (King attempted robbery) included no enhancements.4
The court bifurcated trial on the gang and firearms
enhancements at the request of defense counsel.
Neely I
A jury convicted Neely and Meeks on the murder count but
found the robbery-murder special circumstance allegation not
true. The jury convicted them on both counts of attempted
robbery as well. After a short recess, the parties returned with a
3 The firearms enhancements included: personal use of a
firearm in the commission of a violent felony (§ 12022.53, subd.
(b)); personal and intentional discharge of a firearm in the
commission of a violent felony (Id., subd. (c)); and personal and
intentional discharge of a firearm in the commission of a violent
felony causing great bodily injury or death (Id., subd. (d)).
4The original information (filed June 28, 2006) and first
amended information (filed August 10, 2006) included gang and
firearms enhancements on the attempted robbery charge tied to
King (count 2). The operative charging document, i.e., the second
amended information (filed November 29, 2006), did not.
3
stipulated disposition on the gang and firearm enhancements.
Neely and Meeks each admitted a single “personal use” firearm
enhancement on the murder count under section 12022.53,
subdivision (b) in exchange for dismissal of all other
enhancements, including those sought for the attempted robbery
of Awoleye (count 4). This allowed the court to skip the
bifurcated phase of trial and proceed directly to sentencing.
Neely received 25 years to life for first degree murder, plus
a consecutive term of 10 years for the firearm enhancement; a
consecutive term of one year for King’s attempted robbery; a
concurrent term of three years for Awoleye’s attempted robbery;
and a concurrent term of four years for the drug conviction.
(Neely I, supra, 176 Cal.App.4th at p. 793.) We affirmed Neely’s
convictions on his direct appeal but remanded for resentencing of
the determinate terms imposed on the robbery and drug counts.
(Id. at p. 792.) The trial court reduced his sentence by one year.
Neely II
Neely petitioned for recall and resentencing under newly
enacted former section 1170.95 (now section 1172.6) in 2019.5
The trial court summarily denied the petition based on its review
of the case file. It found Neely “was the actual killer,” “pointed [a
gun] directly at the victim’s head when the victim was shot,” and
“was identified as the shooter by eyewitnesses.” It issued no
order to show cause and did not hold an evidentiary hearing.
Neely appealed. We reversed, holding the “not true”
finding on the robbery-murder special circumstance constituted
“‘“a prior finding by a . . . jury that the petitioner did not act with
reckless indifference to human life or was not a major
5 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no changes in text (Stats. 2022, ch. 58, § 10).
4
participant”’” in the felony underlying Neely’s murder conviction.
(Neely II, supra, B303324 quoting People v. Harrison (2021) 73
Cal.App.5th 429, 433; People v. Clayton (2021) 66 Cal.App.5th
145, 149, 158-159.) We remanded the case with instructions to
grant the petition pursuant to section 1172.6, subdivision (d)(2),
vacate the murder conviction, and resentence Neely on the
remaining counts.
Resentencing After Neely II
The trial court resentenced Neely on remand to 18 years in
prison, as follows: (1) 13 years for King’s attempted robbery (the
upper term of three years plus a 10 year firearm enhancement
under section 12022.53, subdivision (b)); (2) four years for
Awoleye’s attempted robbery (one-third of the mid-term of two
years, or eight months, plus one third of a 10-year firearm
enhancement, or three years and four months), running
consecutively to the 13-year term; and (3) one year for the drug
charge (one-third the middle term of three years), also running
consecutively. The court credited him with time served. Meeks
received a similar sentence. The Department of Corrections and
Rehabilitation released Neely on a two-year parole supervision
term in August of 2022.6
6 The parties jointly submitted a certified letter dated May
18, 2023, to this court from the Department of Corrections and
Rehabilitation confirming Neely’s release date and parole status.
We take judicial notice of this information on our own motion.
(Evid. Code, § 452, subds. (c), (h).)
5
DISCUSSION
A. Mootness
The People argue Neely’s release on parole moots the
appeal of his resentencing. The appeal is not moot. Neely seeks
to modify the felony abstract of judgment by striking
enhancements and terms from his sentence. A favorable
disposition may, among other consequences, “constructively move
[defendant’s] official release from prison to an earlier date.” (See
People v. Harris (1987) 195 Cal.App.3d 717, 720, disapproved on
another ground in People v. Arnold (2004) 33 Cal.4th 294, 307
[released prisoner’s appeal not moot because award of additional
custody credits would affect the “wash out” period for new offense
enhancements under section 667.5].)
B. Firearm Enhancements
Neely contends the trial court erred on resentencing by
imposing personal use firearm enhancements on his convictions
for attempted robbery of King (count 2) and attempted robbery of
Awoleye (count 4). In response, the People contend the court
properly imposed the enhancements pursuant to its authority to
redesignate Neely’s murder conviction under section 1172.6,
subdivision (e).7 We review this question of statutory
interpretation de novo. (People v. Lewis (2021) 11 Cal.5th 952,
961.)
7 Section 1172.6, subdivision (e) states: “The petitioner’s
conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes if the petitioner is
entitled to relief pursuant to this section, murder or attempted
murder was charged generically, and the target offense was not
charged. Any applicable statute of limitations shall not be a bar
to the court’s redesignation of the offense for this purpose.”
6
We agree the court erred when it imposed the
enhancements. The People’s second amended information did not
allege firearm enhancements on count 2. This alone precluded
imposing the enhancement on that count. (See People v.
Anderson (2020) 9 Cal.5th 946, 953, quoting section 1170.1,
subdivision (e) [“As a rule, all sentence enhancements ‘shall be
alleged in the accusatory pleading and either admitted by the
defendant in open court or found to be true by the trier of fact’”].)
The count 4 enhancement was likewise error. The People
dismissed it after the first phase of trial in exchange for Neely
admitting a single “personal use” enhancement on his felony
murder conviction (count 1). The colloquy among counsel,
defendants, and the court left no doubt Neely’s admission applied
only to count 1. By foregoing the bifurcated phase of trial, the
parties left unresolved any factual issues relating to Neely’s
personal use of a gun during the attempted robbery of Awoleye.8
This included the crucial (and open) question of whether Neely
“actually pulled the trigger.”
We reject the People’s contention that section 1172.6,
subdivision (e) allowed the trial court to re-open these issues.
Subdivision (e) applies only when “the target offense [or
underlying felony] was not charged” and the trial court must
select the appropriate crime for resentencing purposes. (See
People v. Watson (2021) 64 Cal.App.5th 474, 483 [trial court’s
flexibility in redesignating the appropriate offense is necessary
“to ensure that punishment is calibrated to culpability”].)
Redesignation was not required here. The People charged two
target offenses: (1) the attempted robbery of King; and (2) the
8The jury made no findings after the first phase of trial
about Neely’s use of a firearm.
7
attempted robbery of Awoleye.9 The jury convicted Neely on both
counts. These and the drug conviction were the only “remaining
counts” requiring resentencing on remand after Neely II.10
The record does not support firearm enhancements even if
doing so were authorized by subdivision (e). The trial court cited
the People’s one-page sentencing brief as the basis of the new
sentence. The brief asserted, among other things, that the court
had previously found Neely “personally used a firearm”;
“personally held the decedent at gunpoint throughout the
duration of the robbery,” and ultimately “shot and killed the 18-
year old victim.” The People reiterated these assertions orally at
resentencing. Doing so was misleading. The jury did not resolve
these allegations because the parties decided to forego trial on
the bifurcated issues. Instead, the People’s brief appears to
incorporate the “findings” made by the trial court when it
summarily denied the petition for resentencing – the same
decision in which the trial court branded Neely the “actual
shooter” and found he “pointed [a gun] directly at the victim’s
9 A target offense “is the intended offense from which the
natural and probable consequences arise” for felony murder
convictions based on the natural and probable consequences
doctrine. (People v. Medina (2009) 46 Cal.4th 913, 920.)
10The Courts of Appeal are split on whether section 1172.6,
subdivision (e) allows the trial court to impose enhancements on
redesignated offenses. Our high court recently granted review of
the question. (See People v. Arellano (2022) 86 Cal.App.5th 418,
review granted March 15, 2023, S277962 [subdivision (e) does not
permit enhancements on resentencing]; contra People v. Howard
(2020) 50 Cal.App.5th 727 [enhancements permitted if
established by the evidence at resentencing hearing].)
8
head when the victim was shot.” We reversed this ruling in Neely
II. More troubling, the record confirms these findings distorted
the evidence at trial.11 The sole eyewitness, Awoleye, never
testified that Neely pointed a gun at King’s head during the
attempted robbery or fired the gun while doing so. Awoleye
described Meeks as the suspect who held a gun to Awoleye’s head
and, more importantly, said he could not confirm from his
position on the ground whether Neely or M.W. shot King. The
trial court thus imposed the new sentence on the same inaccurate
and unproven assumptions that led it to deny the petition in the
first place.
C. Terms of Imprisonment
Neely contends the trial court erred by imposing the upper
term on count 2 (attempted robbery of King) and one-third the
middle term on count 3 (possession of cocaine base) and count 4
(attempted robbery of Awoleye). He argues amendments enacted
by Senate Bill 567 (2021-2022 Reg. Sess.) (SB 567) required the
court to impose the low term on all counts because: (1) the People
did not prove aggravating circumstances beyond a reasonable
doubt; and (2) the low term is the presumptive sentence for a
defendant who was a youth at the time of the offense. The People
do not dispute SB 567’s amendments apply to Neely’s
resentencing.12 We reverse this part of the sentence as well.
11In addition, the trial court incorrectly read our opinion in
Neely I as reflecting Neely “was the actual shooter.” It did not.
12 Ameliorative statutes generally apply retroactively to
non-final criminal judgments only, e.g., those pending on appeal.
(In re Estrada (1965) 63 Cal.2d 740, 745.) Neely’s judgment
became nonfinal for purposes of retroactivity when we vacated
his sentence and remanded the case in Neely II. (See People v.
9
Former section 1170, subdivision (b) gave trial courts
discretion to decide which of the three terms specified for an
offense would best serve the interests of justice. SB 567 amended
subdivision (b) to require, among other things, imposing the
middle term as the presumptive sentence. (§ 1170, subd. (b)(1) &
(2); Stats. 2021, ch. 731, § 1.3.) Courts may now impose the
upper term “only where there are aggravating circumstances in
the crime and the defendant has either stipulated to the facts
underlying those circumstances or they have been found true
beyond a reasonable doubt.” (People v. Flores (2022) 75
Cal.App.5th 495, 500, italics added.) The lower term is the
presumptive sentence if the defendant, as here, “was a youth . . .
at the time of the commission of the offense.” (§ 1170, subd.
(b)(6)(B).)
The trial court cited the following aggravating factors when
it resentenced Neely: the crime “involved great violence, great
bodily harm, and the threat of great bodily harm, possessing a
high degree of viciousness and callousness; the defendant was
armed at the time of the offense; the victims were particularly
vulnerable; the offense involved multiple victims; the planning,
sophistication and professionalism with which the crime was
carried out indicated premeditation; the defendant’s prior
Guillory (2022) 82 Cal.App.5th 326, 335-336, citing People v.
Padilla (2022) 13 Cal.5th 152, 161-162 [“An order to show cause
under section 1172.6 does not vacate the petitioner’s sentence
but, like the habeas corpus petition in Padilla, sets in motion
proceedings to determine whether the petitioner is entitled to
vacatur and resentencing. (§ 1172.6, subd. (d)(1).) The original
judgment remains final until that determination is made.”].)
10
convictions are of increasing seriousness; and, again, he was
engaged in violent conduct, which indicates danger to society.”13
Neeley did not stipulate to the facts supporting these
factors. The People contend we should nevertheless affirm the
upper and middle terms because the trial court found these
factors true “pursuant to its statutory authority under section
1172.6 to redesignate and resentence appellant.” As discussed
above, this case did not require the court to redesignate Neely’s
murder conviction because he was charged and convicted of the
target offenses. We must instead determine which, if any, of the
aggravating factors were based on facts found true beyond a
reasonable doubt at trial by the jury. (§ 1170, subd. (b)(2).)
The finding that Neely acted with a “high degree of
viciousness and callousness” conflicts with the jury’s “not true”
finding on the People’s special circumstances allegation, i.e., that
he was the actual killer, acted with intent to kill, or acted with
reckless indifference to human life and was a major participant
in the crime. (§ 190.2, subd. (a)(17). Whether Neely “was armed
at the time of the offense” was a question left unanswered when
the parties decided to forego the bifurcated phase of trial.
Further, the jury did not decide whether the two victims “were
particularly vulnerable” and the court did not explain how the
verdicts on the attempted robbery counts informed this factor.
(See, e.g., People v. Jones (2010) 187 Cal.App.4th 266, 274
[occupant of car was “particularly vulnerable, in that the victim
has minimal opportunities to escape or otherwise protect himself
from the bullets”]; People v. Alvarado (2001) 87 Cal.App.4th 178,
195 [trial court properly found robbery victim particularly
13 Rule 4.421(a) of the California Rules of Court lists the
factors used to find aggravating circumstances.
11
vulnerable because she was elderly, lived alone, and spoke no
English].) While jurors heard some evidence about the
defendants’ planning to rob the store in advance, the verdict
forms did not require them to decide whether the “planning,
sophistication and professionalism” of the attempted robbery
“indicated premeditation.”
The only aggravating factor proved by the record is the
involvement of multiple victims.14 This is established by the
jury’s guilty verdicts on the two counts of attempted robbery.
Whether this factor outweighs the mitigating factor of Neely’s
youth is an issue for resentencing on remand. We decline to
affirm the terms of imprisonment under the so-called “clear
indication” rule. (See People v. Flowers (2022) 81 Cal.App.5th
680, 686, citing People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
[reviewing court may affirm sentence where the record “‘clearly
indicate[s]’ that the trial court would not impose a more favorable
sentence upon theoretical reversal for resentencing”].)
D. Parole Supervision
Neely was released on parole supervision while this appeal
was pending. He requests we terminate his two-year term
14 Neely’s 2006 probation report lists one prior sustained
juvenile petition for robbery and appears to be the basis of the
trial court’s finding of “increasing seriousness of prior
convictions.” (See § 1170, subd. (b)(3) [“the court may consider
the defendant’s prior convictions in determining sentencing based
on a certified record of conviction without submitting the prior
convictions to a jury”].) A probation report is not a certified
record of conviction. (People v. Dunn (2022) 81 Cal.App.5th 394,
401.) As such, this factor was not proved by the People at the
resentencing hearing on remand.
12
because the court did not impose parole at resentencing pursuant
to section 1172.6, subdivision (h). We decline for two reasons.
First, the issue is beyond the scope of this appeal. The trial
court credited Neely for time served, imposed an 18-year prison
sentence, and directed the Department of Corrections and
Rehabilitation (department) to calculate his good time/work time
credits. His subsequent release from prison and placement on
probation occurred more than two months after the trial court
remanded him to the department’s custody. The conditions of his
release were not addressed at the resentencing hearing nor
included in the appealed order.
Second, section 1172.6, subdivision (h) does not require the
trial court to decide the issue of parole supervision on
resentencing. It states: “A person who is resentenced pursuant
to this section shall be given credit for time served. The judge
may order the petitioner to be subject to parole supervision for up
to two years following the completion of the sentence.” The
permissive language of the second sentence contrasts with the
mandatory language of the first. Subdivision (h) mandated the
trial court credit Neely with time served but gave the court
discretion to impose parole supervision upon completion of the
new sentence. (See, e.g., People v. Lamoureux (2020) 57
Cal.App.5th 136 [trial court may impose parole supervision
regardless of petitioner’s excess custody credits upon
resentencing].) The trial court’s exercising of this authority is not
a prerequisite for the department to impose parole supervision
under another statute. (See, e.g., § 3000.01, subd. (b)(1) [“Any
inmate sentenced to a determinate term shall be released on
parole for a period of two years”].)
13
DISPOSITION
Neely’s sentence is vacated and the matter is remanded
with directions to: (1) strike the firearm enhancement imposed
on counts two and four; and (2) reconsider the sentences imposed
on counts two, three, and four consistent with current laws,
including section 1170, subdivision (b)(2) and (b)(6). The trial
court shall prepare an amended abstract of judgment and
forward a copy to the Department of Corrections and
Rehabilitation after resentencing. The judgment is affirmed in
all other respects.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P.J.
BALTADANO, J.
14
Kelvin D. Filer, Judge
Superior Court County of Los Angeles
______________________________
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.
15