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Name: People v. Neely
Case #: B204851
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/13/2009

Reversal and remand for resentencing was required due to several misapplications of the Determinate Sentencing Law. A jury convicted appellant of first degree murder, two attempted robberies, and possession of cocaine base for sale. Appellant also admitted that a principal personally used a firearm. The murder and attempted robberies stemmed from an incident in which appellant and three cohorts tried to rob a cell phone store and one of the men working in the store was fatally shot. The drug charge was from an unrelated incident. Appellant was sentenced to a term of 36 years to life consisting of 25-to-life for the murder, plus 10 years for the attached arming enhancement, a consecutive one-year term for the attempted robbery of the deceased victim, a concurrent three-year term for the second attempted robbery, and a concurrent four years for the drug offense. Appellant argued that the sentences on the attempted robberies were incorrectly calculated. While conceding there was error, respondent pointed out there were other sentencing errors involved too. The court agreed, noting “[t]his is yet another such case to fall victim to the ‘labyrinth procedures’ of the ‘legislative monstrosity’ [known as the DSL and] whose ‘mind-numbingly complicated’ statutes are ‘capable of ensnaring even it most erudite afficionados.'” The trial court failed to consider that the determinate terms were supposed to be calculated separately from the indeterminate terms. First, the court should have calculated the indeterminate term for any qualifying offenses (here, the murder) and added any enhancements attached to that sentence (here, the 10-year arming enhancement). Only then would the court apply Penal Code section 1170.1 which would require it to select a base term for each of the determinate-sentence crimes, selecting the crime with the longest base term as the principle term (here, the four-year mid term for the drug offense), and then imposing one-third the mid term for any consecutive sentences, and the full selected base term for concurrent sentences. Finally, the court should add the determinate terms to the indeterminate term to arrive at an aggregate sentence. The court remanded for resentencing. It noted that a greater sentence than that initially imposed would be permissible because the initial sentence was unauthorized. The court added that appellant’s sentence for the attempted robbery of the murder victim would have to be stayed per section 654 because the murder was committed as part of the attempted robbery.