Neely

*881 Opinion

Following the guilt phase of a jury trial, defendant Charles Frederick Neely was found guilty of one count of first degree murder (Pen. Code, §§ 187, 189), 1 one count of robbery (§ 211), and one count of burglary (§ 460). The jury also found that defendant used a firearm in the commission of each offense (§ 12022.5) and had served a prior prison term (667.5, subd. (a)), and found true two special-circumstance allegations: that he committed the murder during the course of a robbery and burglary 2 (§ 190.2, subd. (a)(17)) and that he previously had been convicted of murder (§ 190.2, subd. (a)(2)). After the penalty phase of the trial, the jury imposed the death penalty.

In the companion habeas corpus proceeding, we conclude that the judgment must be vacated in its entirety. (In re Neely, post, p. 901, 906 [ 26 Cal.Rptr.2d 203 , 864 P.2d 474 ].) Therefore, many of the issues raised on the direct appeal need not be resolved, and we dismiss the appeal itself as moot. For the guidance of the trial court in the event of a retrial, however, we shall address those issues that are likely to arise upon retrial.

Facts

I. Guilt Phase

A. Prosecution’s case.

The victim, Bruce…

I concur in the judgment: the appeal is moot and should be dismissed.

*900 That being the result, I see no necessity for the lengthy advisory opinion and I do not join therein.

Kennard, J., concurred.

Following the guilt phase of a jury trial, defendant Charles Frederick Neely was found guilty of one count of first degree murder (Pen. Code, §§ 187, 189), [1] one count of robbery (§ 211), and one count of burglary (§ 460). The jury also found that defendant used a firearm in the commission of each offense (§ 12022.5) and had served a prior prison term (667.5, subd. (a)), and found true two special-circumstance allegations: that he committed the murder during the course of a robbery and burglary [2] (§ 190.2, subd. (a)(17)) and that he previously had been convicted of murder (§ 190.2, subd. (a)(2)). After the penalty phase of the trial, the jury imposed the death penalty.

In the companion habeas corpus proceeding, we conclude that the judgment must be vacated in its entirety. ( In re Neely, post, p. 901, 906 [ 26 Cal. Rptr.2d 203 , 864 P.2d 474 ].) Therefore, many of the issues raised on the direct appeal need not be resolved, and we dismiss the appeal itself as moot. For the guidance of the trial court in the event of a retrial, however, we shall address those issues that are likely to arise upon retrial.

The victim, Bruce Chester, a realtor, conducted his…