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People v. Neely

August 13, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JALIEL RASHAD NEELY, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. TA084532). Gary R. Hahn, Judge.

The opinion of the court was delivered by: Perren, J.

CERTIFIED FOR PUBLICATION

"Do the crime, do the time," is a bedrock principle of criminal law; straight forward, simple, and concise. A defendant should know the consequences likely to flow from committing a crime. Likewise, the prosecutor, defense counsel and sentencing judge should know the length of the sentence and the rules for its determination. But, often they do not.

For over 30 years, opinions of the California Courts of Appeal have commented on the frustrating and needless complexity of the Determinate Sentencing Law (DSL). Reversals and remands for resentencing resulting from the misapplication of the DSL litter the pages of appellate decisions, both published and unpublished.*fn1 This is yet another such case to fall victim to the "labyrinthine procedures,"*fn2 of the "legislative monstrosity"*fn3 whose "mind-numbingly complicated"*fn4 statutes are "capable of ensnaring even its most erudite afficionados."*fn5 Here, the collective experience and wisdom of the trial judge, the prosecutor and defense counsel resulted in an unlawful sentence whose pronouncement violated the rules governing (1) the imposition of consecutive sentences that implicate indeterminate and determinate terms, (2) the proper selection of a base term for a given offense, and (3) the designation of appropriate principal and subordinate terms under the DSL.

Jaliel Rashad Neely appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189),*fn6 two counts of attempted second degree robbery (§§ 664/211), and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Neely contends there was insufficient evidence to support one of the attempted robbery convictions, and that the trial court erroneously admitted evidence that an accomplice had confessed to participation in the murder and attempted robberies. We conclude that substantial evidence supports the conviction and that there was no evidentiary error. Neely also claims the trial court erred by not staying the sentence for one of the attempted robberies pursuant to section 654, and by not making liability for victim restitution joint and several with a co-defendant. We agree these errors were made.

Finally, Neely claims the trial court erred in calculating his sentence for the attempted robberies. A review of this contention, however, reveals more fundamental errors in Neely's sentence for the determinate term crimes. These errors highlight the complex and confusing procedures contained in the DSL (§ 1170 et seq.), which have frustrated and confused courts since its enactment in 1977. We add our voice to others who have commented on and attempted to explain the complexities of determinate sentencing.

We will remand to the trial court for resentencing on the determinate term crimes, order the sentence for one attempted robbery stayed pursuant to section 654, and order that Neely and his co-defendant be held jointly and severally liable to pay victim restitution. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

Oluwaseyi Awoleye and 18-year-old Johnny King were working in a cellular phone store owned by Awoleye. Neely, Brandon Meeks, and M.W. entered the store and yelled, "Get down, get down." Meeks walked up to Awoleye and pointed a gun at his head. Neely stood next to King and was also holding a gun. M.W. was between Neely and Meeks. M.W. stated, "You know what this is?"

Awoleye heard a gunshot and Johnny King fell to the ground fatally wounded. The three men ran out of the store. M.W. appeared to take some cell phone accessories from a display case before he left.

When the police arrived, Awoleye described the three men and told officers that he recognized M.W. as a former customer. The next day, Awoleye made a photo identification of Neely, Meeks, and M.W. as the three assailants.

The three men were located by police and arrested. In a search of Neely's residence, deputies found numerous pieces of wrapped and unwrapped rock cocaine. At the times of their arrests, Neely was 17 years old, Meeks was 18 and M.W. was 15.

After his arrest, M.W. confessed that he had participated in the murder and attempted robberies. Neely also admitted participation. Neely told sheriff's deputies that he was at Awoleye's store with M.W. and Meeks at the time of the murder and attempted robberies but that they intended only to rob the store. Neely claimed he was the "lookout" and was unarmed. He stated that M.W. and the other person were carrying guns and that M.W. shot Johnny King.

Neely and co-defendant Meeks were charged with first degree murder, attempted robbery of King, and attempted robbery of Awoleye; Neely was charged with possession of cocaine base for sale. The information alleged the special circumstance of murder during the commission of robbery (§ 190.2, subd. (a)(17)), as well as firearm enhancements (§ 12022.53, subds. (b), (c), (d) & (e)(1)), and a gang enhancement (§ 186.22, subd. (b)(1)(A)). A jury convicted Neely of the crimes, and found the special circumstance allegation not true. In return for dismissal of the other firearm enhancements and gang enhancement, Neely admitted that a principal personally used a firearm in the murder and one attempted robbery. (§ 12022.53, subd. (b).)

Neely was sentenced to prison for a term of 36 years to life. The sentence consisted of 25 years to life for first degree murder, a consecutive term of 10 years for the firearm enhancement, a consecutive term of one year for the King attempted robbery, a concurrent term of three years for the Awoleye attempted robbery, and a concurrent term of four years for the drug offense.

DISCUSSION

Substantial Evidence Supports King ...


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