In re McNeely

Filed 12/11/06  In re McNeely CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

            PETITION for writ of habeas corpus after judgment in the Superior Court of Los Angeles County.  Bradford L. Andrews, Judge.  Granted.

            John A. Colucci for Petitioner.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves and Pamela C. Hamanaka, Senior Assistant Attorneys General, Linda C. Johnson, Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

            Frank James McNeely seeks habeas corpus relief from his conviction and sentence for assault with a firearm (Pen. Code, §  245, subd. (a)(2); undesignated section references are to this code), with findings of firearm use and infliction of great bodily injury, a prior strike conviction, two serious felony convictions, and service of three prior prison terms.  Petitioner is serving a 29-year sentence with the Department of Corrections.  He contends that he was denied his constitutional rights to confrontation at trial, when the key witness and alleged victim was declared unavailable, and her testimony from a former trial was read to the jury under Evidence Code sections 240, subdivision (a)(5) and 1291, subdivision (a)(2).  He also contends that his counsel on appeal following the trial provided ineffective assistance (IAC; see U.S. Const., Amend. VI) by failing to assert this denial as a ground for appeal and reversal.

            We will conclude that petitioner is entitled to relief.

FACTS

            The facts are not in dispute.  Petitioner was originally charged with attempted murder and assault with a firearm, with enhancements.  The victim was Georgia Jiles (Jiles), petitioner's girlfriend.  At the end of a first trial in 2001, the jury acquitted petitioner of the attempt, and divided, 9-3, for acquittal on the lesser included offense of attempted voluntary manslaughter, as well as on the assault.  Petitioner was retried for attempted voluntary manslaughter and assault in 2002, and was convicted of both.  It was during this trial that the alleged constitutional violation occurred.  On an unsuccessful motion for new trial, petitioner challenged the use of Ms. Jiles's prior testimony.  This contention was not raised on petitioner's appeal.  Therein, this court agreed with appellant that the trial court had given prejudicially erroneous instructions on the attempted manslaughter, and that one of the alleged four prior prison term findings did not qualify for enhancement.  (People v. McNeely (Jan. 30, 2004) B160705 [nonpub. opn.].)^[1]  These portions of the judgment were reversed.  On remand, the prosecution did not retry petitioner for attempted manslaughter.  On September 20, 2004, the trial judge resentenced him for the assault conviction and its several enhancements.

            On April 25, 2005, the trial judge denied petitioner's initial petition for habeas corpus.  On May 27, 2005, petitioner filed this petition for habeas corpus, in pro. per.^[2]  The petition asserted several contentions, including that Ms. Jiles had been improperly found to be an absent witness, thereby allowing her prior testimony to be used at trial.  We requested that respondent file a preliminary response, concerning only this issue.  After reviewing the response, we appointed counsel for petitioner, and directed that counsel file a supplemental brief, to which respondent could respond.  Having considered these briefs, we issued an order to show cause, again confined to the witness unavailability issue, as well as the question whether failure to raise it on appeal constituted IAC.

            Before setting forth the facts concerning Ms. Jiles's unavailability, we summarize the content and context of her former testimony, as it relates to the trial evidence of the assault.  At the time of the offense, in August 2001, Ms. Jiles lived in a Long Beach apartment with Jerry Bernoudy, the tenant.  Petitioner, her boyfriend for about four months, occasionally stayed with her there.  Ms. Jiles testified that about 3:00 a.m. on August 2, she and petitioner engaged in a lengthy argument, after which she told him to leave.  Petitioner  followed her into the bathroom and struck her head with a semiautomatic pistol, splattering blood (although a police officer who soon arrived testified he saw no blood in the bathroom).  After striking Ms. Jiles and throwing her on Bernoudy's bed, breaking it, petitioner threatened both of them with being shot, and demanded Ms. Jiles hand him a cell phone.  Petitioner again beat her, and told her he would kill her if she touched the living room door.  She reached for its knob, and he shot her, allegedly three times in the ribs and leg.  Verbally threatening Ms. Jiles's family, petitioner left.  The jury was informed that Ms. Jiles had suffered prior convictions for transportation and possession of narcotics for sale.

            Bernoudy testified similarly, although he did not confirm the alleged attack in the bathroom, from which he only saw petitioner pull Ms. Jiles out, and then beat her.  But although Bernoudy heard the threat about the door, and saw Ms. Jiles move toward it, he testified he then only heard a shot, and Ms. Jiles's exclamation that she had been shot.

            For his part, petitioner claimed the shooting had been accidental.  He testified that after he announced his intent to leave, following a shoving fight, Ms. Jiles took Bernoudy's handgun from the bedroom and pointed it at petitioner, cocked.  Petitioner grabbed it, and they wrestled over it.  As they fell onto the arm of a couch, the gun discharged once, with Ms. Jiles's finger on the trigger.^[3]  Appellant called two physicians to testify, one of whom opined Ms. Jiles had been wounded by a single bullet, while the other stated the wounds were consistent with two shots.

            We turn now to the facts under which Ms. Jiles was determined to be an unavailable witness, within then meaning of the relevant statutes previously cited.^[4]  First, on the afternoon of May 22, 2002, the day before testimony began, the prosecutor informed the court that Ms. Jiles had been served with a subpoena and called to appear at 1:30 p.m. that day,  but was not present.  The prosecutor explained that Ms. Jiles knew of the time, because the prosecutor had told her of it in a telephone call the preceding day, and Ms. Jiles had written â€