In Re Neely

While his appeal from a judgment imposing the death penalty was pending before this court (see People v. Neely, ante, p. 877 [ 26 Cal.Rptr.2d 189 , 864 P.2d 460 ]), petitioner Charles Frederick Neely filed the petition for writ of habeas corpus which gave rise to the present proceeding. This petition, in part reiterating petitioner’s contentions on appeal, alleged, among other claims, that numerous failings by his trial counsel deprived petitioner of his right to the effective assistance of counsel. Concluding that the petition stated a prima facie claim for relief, we issued an order to show cause returnable before this court and ordered that the matter be argued with the automatic appeal.

For the reasons discussed hereafter, we conclude that petitioner is entitled to habeas corpus relief and that the judgment must be set aside in its entirety.

I

The factual and procedural background to petitioner’s conviction and sentence of death, and to the present habeas corpus proceeding, is set forth fully in the companion case' of People v. Neely, supra, ante, at pages 881-892, and need not be repeated here except to note that “[t]he victim, Bruce Chester, a realtor, conducted…

I concur in the result and analysis of the majority opinion, but write separately to discuss a provocative argument of the Attorney General, one that, however, I believe must be accepted, if at all, by the United States Supreme Court in the first instance. The argument is based primarily on the concurring opinion of Justice Powell in Kimmelman v. Morrison (1986) All U.S. 365, 391-398 [ 91 L.Ed.2d 305, 329-334 , 106 S.Ct. 2574 ] (Kimmelman).

*923 The court today sets aside the judgment because defense counsel failed to make a meritorious objection to the admission of a tape recording of a conversation among petitioner and his partners in crime. During the course of that conversation, petitioner made a number of incriminating statements. The court finds prejudice, i.e., a reasonable probability that, absent the tape recording, there would have been a result more favorable to petitioner. As both the high court and this court have repeatedly stated, “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694 [ 80 L.Ed.2d 674, 698 , 104 S.Ct. 2052 ] [Strickland]; see In re Marquez (1992) 1 Cal.4th…

While his appeal from a judgment imposing the death penalty was pending before this court (see People v. Neely, ante, p. 877 [ 26 Cal. Rptr.2d 189 , 864 P.2d 460 ]), petitioner Charles Frederick Neely filed the petition for writ of habeas corpus which gave rise to the present proceeding. This petition, in part reiterating petitioner's contentions on appeal, alleged, among other claims, that numerous failings by his trial counsel deprived petitioner of his right to the effective assistance of counsel. Concluding that the petition stated a prima facie claim for relief, we issued an order to show cause returnable before this court and ordered that the matter be argued with the automatic appeal.

For the reasons discussed hereafter, we conclude that petitioner is entitled to habeas corpus relief and that the judgment must be set aside in its entirety.

The factual and procedural background to petitioner's conviction and sentence of death, and to the present habeas corpus proceeding, is set forth fully in the companion case of People v. Neely, supra, ante, at pages 881-892, and need not be repeated here except to note that "[t]he victim, Bruce Chester, a realtor,…