In re McNeely
Appellant 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. Appellant 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.
Court conclude that petitioner is entitled to relief.
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