People v. Neely CA2/6

Filed 3/1/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B303324 (Super. Ct. No. TA084532) Plaintiff and Respondent, (Los Angeles County)

v.

JALIEL RASHAD NEELY,

Defendant and Appellant.

In 2007, a jury convicted Jaliel Rashad Neely of first degree murder (Pen. Code, §§ 187/189)1 but found the robbery-murder special circumstance allegation “not true.” Neely also was convicted of two counts of attempted second degree robbery (§§ 664/211) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). (People v. Neely (2009) 176 Cal.App.4th 787, 791, 793 (Neely).) The trial court sentenced him to 25 years to

All undesignated statutory references are to the Penal 1

Code unless otherwise stated.

life for first degree murder, a consecutive prison term of 10 years for a firearm enhancement (§ 12022.53), a consecutive term of one year for one attempted robbery, a concurrent term of three years for the second attempted robbery, and a concurrent term of four years for the drug offense. (Neely, at p. 793.) We affirmed the convictions but remanded for resentencing of the determinate terms. (Id. at p. 792.) In 2019, Neely filed a petition for recall and resentencing pursuant to Senate Bill No. 1437 (SB No. 1437) and newly enacted section 1170.95. That statute “allows a defendant convicted of felony murder to have his conviction vacated and be resentenced if the conviction would not be valid under the recent amendments to sections 188 and 189. . . .” (People v. Harrison (2021) 73 Cal.App.5th 429, 431 (Harrison).) After appointing counsel for Neely, the trial court denied his petition for resentencing without issuing an order to show cause. Neely contends the trial court erred when it found his petition failed to state a prima facie case for relief under section 1170.95. He also contends the jury’s “not true” finding on the robbery-murder special circumstance allegation requires that the matter be remanded with instructions to vacate his murder conviction and resentence him. We find this latter contention dispositive. (See Harrison, supra, 73 Cal.App.5th at pp. 431-432; People v. Clayton (2021) 66 Cal.App.5th 145, 149, 158-159, rev. denied Sept. 15, 2021, S270309 (Clayton).) Clayton and Harrison held that a jury’s “not true” finding on a felony-murder special circumstance allegation constituted “‘a prior finding by a . . . jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the [underlying] felony,’ thus triggering the [trial] court’s duty