Filed 1/22/15 P. v. Neal CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B255913

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA008003)
         v.

FREDDIE NEAL,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Laura L.
Laesecke, Judge. Affirmed.


         Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Freddie Neal, appeals from the trial court’s order
denying his motion to recall and reduce his sentence. (Pen. Code, § 1237, subd. (b).)1
We affirm the order.
                                      BACKGROUND
       On March 20, 1992, the trial court sentenced Neal to 185 years to life in state
prison following his conviction of 31 serious and violent crimes, including seven
robberies (§ 211), an assault with the intent to commit mayhem, rape, sodomy, oral
copulation or another specified offense during the commission of a first degree burglary
(§ 220), four burglaries (§ 459), nine forcible rapes or penetrations of genital or anal
openings by foreign objects while acting in concert (§ 264.1) and two acts of forcible oral
copulation while acting in concert (§ 288a, subd. (d)). On January 29, 2014, Neal filed a
motion in the trial court to have his sentence recalled. He requested the trial court to
resentence him to a term of 36 years to life.
       Following a hearing held on March 13, 2014, the trial court stated in its minute
order: “On March 20, 1992, the court sentenced [Neal] to 185 years to life in state
prison. [Neal] requests that this court recall the sentence and run numerous counts
concurrent instead of consecutive, which would result in a sentence of 36 years to life.
[Neal] takes responsibility for his crimes and begs the court to consider his conduct while
in custody and numerous letters of support from family members.” After considering
Neal’s petition, the trial court “respectfully denied” it.
       On April 16, 2014, Neal filed a timely notice of appeal from the trial court’s order.
                                      CONTENTIONS
       After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.



1
     All further statutory references are to the Penal Code unless otherwise indicated.
     Section 1237, subdivision (b) allows for an appeal from “any order made after
judgment affecting the substantial rights of the party.”

                                                2
       By notice filed September 23, 2014, the clerk of this court advised Neal to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. After being granted an extension within which to file it, on November 6, 2014
Neal filed a “letter brief” in which he cites section 4801, subdivision (c), then asserts the
trial court should have given greater weight to the diminished culpability of his youth
when it imposed his sentence. However, section 4801, subdivision (c) applies to an
application for a grant of parole by a juvenile offender.2 Neal, who is seeking a reduction
of his sentence so that he might one day be eligible for parole, was a 19-year-old adult
when he committed his crimes.
       In addition to section 4801, subdivision (c), Neal cites Miller v. Alabama (2012)
___U.S.___ [132 S.Ct. 2455] and Graham v. Florida (2010) 560 U.S. 48 for the
proposition that, although he was 19 at the time the crimes were committed, he was
nevertheless a youthful offender and should have been treated as such. He asserts, while
he was technically an adult, his young age made him less culpable and “more capable of
change” than a more mature offender. (Graham v. Florida, supra, at pp. 67-68, 72-73.)
Neal states, although he was 19, his level of development was virtually indistinguishable
from that of a 17 year old and he should have been treated accordingly. That, however, is
not the law. A “youth[ful] offender” is one who is “under 18 years of age at the time of
his or her controlling offense” or offenses (§ 3051, subd. (a)(1)).
       Neal indicates he is willing to accept full responsibility for the crimes he
committed and has made great efforts at rehabilitating himself. He has not been
disciplined for over 11 years. He asserts he has taken advantage of educational and
vocational programs to develop into a valuable member of society and should be given
that opportunity. In addition, he has attached to his petition a number of supportive

2
        Subdivision (c) of section 4801 provides: “When a prisoner committed his or her
controlling offense, as defined in subdivision (a) of [s]ection 3051, prior to attaining
18 years of age, the board, in reviewing a prisoner’s suitability for parole pursuant to
[s]ection 3041.5, shall give great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner in accordance with relevant case law.”

                                              3
letters from friends and family as well as letters he wrote to the victims of his crimes
apologizing for his conduct.
       “It is well established that a trial court has discretion to determine whether . . .
sentences are to run concurrently or consecutively. (Pen. Code, § 669[, subd. (a)];
[citation].) It is also the rule that appellate courts do not have the power to modify a
sentence or reduce the punishment therein imposed absent error in the proceedings.
[Citation.] Moreover, such error cannot be predicated on a trial court’s determination
that several sentences are to run consecutively unless an abuse of discretion is clearly
shown. [Citations.] [¶] The concept of judicial discretion is difficult to define with
precision. In the past we have described it as ‘the sound judgment of the court, to be
exercised according to the rules of law.’ [Citation.] More recently we have said (quoting
from another case) that the term judicial discretion ‘implies absence of arbitrary
determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover,
discretion is abused whenever the court exceeds the bounds of reason, all of the
circumstances being considered. [Citations.] However, in the absence of a clear showing
that its sentencing decision was arbitrary or irrational, a trial court should be presumed to
have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary
determination to impose consecutive sentences ought not be set aside on review.”
(People v. Giminez (1975) 14 Cal.3d 68, 71-72.)
       Here, Neal did not participate in only one incident involving abhorrent behavior.
Although he was only 19 years old, he committed 31 separate crimes, all of which were
violent, some extremely so (see § 667.5, subd. (c)), all of which were serious (see
§ 1192.7, subd. (c)) and some of which were committed in concert with others. Under
these circumstances, it cannot be said the trial court acted arbitrarily or irrationally when
it imposed consecutive sentences. (See Cal. Rules of Court, rules 4.425, 4.426; see, e.g.,
People v. Jones (1981) 124 Cal.App.3d 749, 753.)




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                                   REVIEW ON APPEAL
       We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
                                       DISPOSITION
      The order is affirmed.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               EDMON, P. J.


We concur:


                    KITCHING, J.




                    ALDRICH, J.




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