People v. Kelly CA2/5

Opinion

Filed 8/28/26 P. v. Kelly CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B344913

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. 24CJCF02534)

DARRYL EUGENE KELLY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of the County of Los Angeles, George G. Lomeli, Judge. Modified and affirmed with directions. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, and Stephen D. Svetich, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION Defendant Darryl Kelly appeals from his convictions for injuring a person with whom he was in a dating relationship, assault with a deadly weapon, and robbery. He argues his robbery conviction was not supported by sufficient evidence and the sentence on his assault with a deadly weapon conviction should be stayed pursuant to Penal Code section1 654 because it arose from the same conduct as the charge for injuring someone with whom he was in a dating relationship. We affirm the robbery conviction and stay the sentence on the assault with a deadly weapon charge.

II. BACKGROUND

A. The Charges In an information filed on May 28, 2024, the Los Angeles County District Attorney’s Office charged defendant with inflicting injury on someone with whom he was in a dating relationship (§ 273.5, subd. (a), count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), failure to register after felony conviction (§ 290, subd. (b), count 3), robbery (§ 211, count 4), and attempted murder (§§ 664, subd. (a), 187, count 5). On June 25, 2024, the trial court granted defendant’s motion to set aside the information under section 995 as to count 3 only. The case proceeded to jury trial on the remaining counts.

1 Further statutory references will be to the Penal Code.

2 B. The Evidence 1. T.M.’s Testimony Defendant and T.M. were in a dating relationship and lived together. On the morning of April 15, 2024, T.M. and defendant began arguing in their vehicle while defendant drove and T.M. rode in the rear passenger side. Defendant was cursing at T.M. and raising his voice. T.M. wanted to get out of the vehicle because she believed defendant would “put[ ] his hands on [her]” based on prior threats and incidents of abuse. When they reached a stop sign, T.M. jumped out of the vehicle through the rear passenger-side door, leaving the door open; she was holding her purse. When the couple’s dog followed T.M., defendant exited the vehicle to get the dog. After he retrieved the dog and was heading back to the vehicle, T.M. threw a glass beer bottle, missing him but hitting the vehicle’s windshield. Defendant appeared angry; T.M. described him as having an “‘I want to kill you’ type” look. T.M. started running away on the sidewalk. Defendant got back in the vehicle, drove onto the curb, and struck T.M. with the vehicle, causing her to fall and hit her head on the ground. T.M. sustained a bloody wound to her right temple, a bump on her head, and scraped knees, which also bled. When the vehicle hit her, T.M.’s purse fell behind her onto the ground. While T.M. was lying on the ground, defendant exited the vehicle and “look[ed] like he was about to come st[o]mp [her] out.” He stood over her and, at some point, grabbed her purse without permission while she was still on the ground.

3 Defendant returned to the vehicle and drove away. As he drove off, defendant told T.M., “‘You better hope I don’t see you before you see me or I’m gonna kill you.’” T.M. was transported from the scene by ambulance and treated at the hospital. T.M. did not know if she lost consciousness as a result of being hit by the car.

2. Ash’s Testimony Jaclyn Ash observed the incident from the front window of her home. She observed a sports utility vehicle approach with its tires screeching and heard T.M. screaming from inside the vehicle. T.M. then jumped out of the moving vehicle and walked briskly away toward the sidewalk. Defendant, who was driving, followed T.M. up over the curb, turned toward her on the sidewalk, and hit her with the vehicle. Defendant did not brake before impact. T.M. staggered but did not fall to the ground. Ash estimated the vehicle struck T.M. in her mid-torso at approximately 10 to 20 miles per hour. Defendant exited the vehicle, screaming at T.M. Then he grabbed T.M.’s purse and used the purse to hit T.M. over the head between four and eight times, using his full strength, for approximately 30 seconds. Ash ran outside and screamed “stop.” When defendant saw Ash, he returned to the vehicle and drove off. As he drove away, defendant hit T.M. a second time with the vehicle. Ash called out to T.M., who ran to her. Ash observed gashes on T.M.’s forehead and leg and called 911.

4 3. T.M.’s Mother’s Testimony Antoinette M., T.M.’s mother, testified that she was caring for T.M. on the day following the incident when she observed defendant’s vehicle outside her home; she called the police.

4. Officer Trujillo’s Testimony Los Angeles Police Department Officer Kevan Trujillo responded to Antoinette M.’s residence. Upon arrival, he found defendant sitting in a vehicle across the street. Defendant was upset when Officer Trujillo detained him, and when he saw T.M. exit the home, he began cursing and yelling as he looked toward her. He yelled at T.M., “Thanks [T.M.] Dude, everything you started, man. Every, everything you start[ed, the] truck is yours. It’s right here. Your EBT card is in there. Your purse, everything is in there, man.” T.M. remained quiet and seemed scared. Officer Trujillo then placed defendant in the patrol vehicle and took him in for questioning.

5. Defendant’s Testimony Defendant testified that he and T.M. were arguing when she exited the vehicle as it was slowing to a stop but still traveling at approximately one to four miles per hour. She fell in the street. Defendant lost control of the vehicle while trying to prevent the dog from jumping out of the rear passenger door that T.M. left open. The vehicle headed straight towards the curb where T.M. was standing. Defendant saw T.M.’s hand cocked back like she was going to throw an item at him, and then a thick, glass 5 liquor bottle struck the windshield of the vehicle. Because he ducked behind the steering wheel, he did not see whether the vehicle hit T.M. But defendant noticed both that T.M. was running on the grass and that she fell. Defendant hit the brakes, put the vehicle in park, and got out to check on T.M.’s welfare. T.M. was walking away down the sidewalk and defendant saw the purse sitting on the grass approximately 36 feet away from T.M. He picked up the purse because he was concerned someone would take it. According to defendant, he picked up the purse because it contained his “E.B.T. card, credit cards, and maybe about $5 or $10;” T.M. “[kept] everything in her purse for [them].” At the time he picked up the purse, T.M. “was so far away. She was walking up the street, and [defendant] didn’t want to leave her purse there on the ground.” Defendant claimed the purse belonged to both of them because his “stuff” was in there as well as hers. “And if [she was] walking away, leaving the purse, somebody else could come along and steal the purse[,] [¶] … her I.D., [defendant’s] I.D.” Defendant denied hitting T.M. with the purse. Defendant asked T.M. to get back in the vehicle, but left when he heard a woman screaming that she was going to call the police. T.M. “was fine when [he] left. She was up and walking.” Defendant denied that he hit T.M. with the vehicle as he drove away. Defendant went to pick up T.M. the following day to take her to breakfast. On cross-examination, defendant reiterated that the purse was “our purse” because it held both his and T.M.’s belongings. He confirmed that he picked up the purse because he “thought that [it] would best benefit both of [them] that [he] pick up her 6 purse because somebody else could come steal her purse with [their] credit[ ] cards in there.”

C. The Verdict and Sentencing On November 4, 2024, the jury found defendant guilty on counts 1, 2, and 4.2 After the jury failed to reach a unanimous verdict on the attempted murder charge, the trial court declared a mistrial on count 5. The court later dismissed count 5 pursuant to the prosecution’s motion. On March 20, 2025, the trial court sentenced defendant to an aggregate term of five years in state prison.3 Prior to the pronouncement of sentence, defendant’s counsel argued that the sentences on counts 1 (§ 273.5, subd. (a)) and 2 (§ 245, subd. (a)(1)) merged under section 654. The court agreed “if the prosecution was arguing, as the defense attorney stated earlier, that the force and the use of the vehicle constituting that charge was the same as that used in the domestic violence count… . [¶] However, and I think this was the People’s position … defendant’s conduct was … using the purse that he took from the victim and to beat her over the head with it to give rise to the 2 As set forth above, count 3 was dismissed prior to trial.

3 On February 26, 2025, the prosecution filed a sentencing memorandum asserting that, when defendant struck the victim with his car, her “head hit the concrete and she suffered a significantly scraped knee.” The memorandum did not mention any injuries that resulted from the assault with the purse.

7 [section] 245[, subd.] (a)(1) [count] in this matter.”4 The court continued, “[W]hether it merges or not, the court is still inclined to make the midterm with respect to that count, the 245[, subd.] (a)(1), concurrent to any time the court has imposed.” The trial court imposed the upper term of four years on count 1 (§ 273.5, subd. (a)), a one year term—calculated as one- third the middle term of three years—on count 4 (§ 211) to run consecutively to count 1, and the middle term of three years on count 2 (§ 245, subd. (a)(1)), to run concurrently with counts 1 and 4. Defendant filed a timely notice of appeal.

III. DISCUSSION

A. Sufficiency of the Evidence Defendant contends there was insufficient evidence to support a finding that he acted with the requisite intent to commit robbery. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Robbery is a specific intent offense which requires the prosecution to prove the defendant intended to permanently deprive the victim of the property taken (People v. Anderson (2011) 51 Cal.4th 989, 994 (Anderson)) or “to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment.” (People v. Avery (2002)

4 As we discuss more fully in Part III.B., the record contains no evidence to support a finding that the purse was used as a deadly weapon.

8 27 Cal.4th 49, 55, 58 (Avery); CALCRIM No. 1600.) Because there is rarely direct evidence of specific intent, it is usually shown circumstantially. (People v. Lashley (1991) 1 Cal.App.4th 938, 945–946.) “In resolving sufficiency of the evidence claims, ‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Gomez (2008) 43 Cal.4th 249, 265 (Gomez).) Defendant advances three arguments in support of his contention that there was insufficient evidence of his specific intent to commit robbery: (1) he had a claim of right to the property and a good faith basis to believe it was his; (2) he did not intend to permanently deprive T.M. of her purse; and (3) at the time he used force or fear against T.M., his intent was to injure her, not rob her. We disagree. Defendant’s first argument fails because he admitted at trial that the purse belonged to T.M. and contained her items. Further, when defendant appeared at T.M.’s mother’s home the day after the assaults, defendant yelled at T.M., “It’s right here. Your EBT card is in there. Your purse, everything is in there, man.” (Italics added.) Defendant’s claim that the evidence at trial demonstrated, as a matter of law, that he had a good faith basis to believe the purse belonged to him therefore fails. (See People v. Llamas (1997) 51 Cal.App.4th 1729, 1738 [“In California, theft occurs when a co-owner takes jointly held property with the intent to permanently deprive other owners of 9 their interest in that property”]; People v. Aguilera (2016) 244 Cal.App.4th 489, 497–498 (Aguilera).) Defendant next contends that he did not intend to permanently deprive T.M. of her purse because he “returned the following day, intending to pick her up for breakfast.” But, defendant’s contention that the evidence could be viewed as inconsistent with the requisite intent does not require a reversal of the conviction. (See, e.g., People v. Houston (2012) 54 Cal.4th 1186, 1215 [“‘“[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding”’”].) Further, although the evidence showed defendant returned the following day, he did not return T.M.’s purse to her and only identified T.M.’s belongings to her after Officer Trujillo detained him. Finally, robbery requires only proof of “an intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment … .” (Avery, supra, 27 Cal.4th at p. 55; CALCRIM No. 1600.) Here, the record contains substantial evidence from which the jury could have reasonably inferred defendant’s intent was to temporarily, but for an unreasonable time, deny T.M. of a major portion of her purse’s value and enjoyment. (See, e.g., Aguilera, supra, 244 Cal.App.4th at pp. 496, 501–502 [defendant committed robbery when he took cell phone during assault to prevent wife from calling 911].) We now consider defendant’s contention that his assaultive acts were motivated only by an intent to injure T.M., not an intent to rob her. As a specific intent crime, robbery requires the joint operation of act and intent. (§ 20.) “[I]f the larcenous purpose does not arise until after the force has been used against 10 the victim, there is no ‘joint operation of act and intent’ necessary to constitute robbery.” (People v. Green (1980) 27 Cal.3d 1, 54, fn. omitted; accord, People v. Wallace (2008) 44 Cal.4th 1032, 1077.) According to defendant, “the taking of the purse was an afterthought” which occurred after he beat T.M. over the head with it. Sufficient evidence supports the jury’s contrary finding. Indeed, defendant testified that he picked up the purse because “her I.D., [his] I.D.”, “[his] E.B.T. card, credit cards, and maybe about $5 or $10” were in the purse and he was afraid someone else would take it. His statement concedes the purse had value to him; that was why he grabbed the purse initially, and it was reasonable for the jury to infer that he acted with an intent to deprive T.M. of property when he picked up the purse and exerted force to carry it away. (Anderson, supra, 51 Cal.4th at p. 994 [“It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away”]; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [theft becomes robbery if the perpetrator peaceably gains possession but “resorts to force or fear while carrying away the loot”].) Accordingly, the evidence was sufficient to support defendant’s conviction for first degree robbery.

B. Section 654 Defendant argues that his convictions on counts 1 and 2, for domestic violence (§ 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), are based on the same act of striking T.M. with his vehicle and therefore he cannot be punished for both. The Attorney General counters that the evidence supported a conviction on count 1 based on defendant’s 11 assault with the purse and that section 654 therefore does not apply.

1. Legal Principles Pursuant to section 654, subdivision (a), “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” Our Supreme Court has “often said that the purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with [the defendant’s] culpability.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) A substantial evidence standard of review applies to the trial court’s determination of the applicability of section 654. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289; People v. Osband (1996) 13 Cal.4th 622, 730.) We review the trial court’s factual findings, express or implicit, in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)

2. Analysis Count 1 required that the defendant’s act inflicted a physical injury upon T.M. that resulted in a traumatic condition. (§ 273.5, subd. (a).) Ash, the only witness who testified that defendant struck T.M. with the purse, described T.M.’s injuries to include a gash on her forehead and on her knee. She did not 12 testify that either of those injuries were a result of the assault with the purse rather than the assault with the deadly weapon, namely, the vehicle. Further, T.M. attributed her injuries to being struck by the vehicle and falling to the ground. When she testified to having a “knot” on her head, she agreed with the prosecutor that the injury was the result of falling after being struck by the vehicle. Accordingly, the only legally viable theory for count 1, the domestic violence conviction, is that defendant’s criminal act was assault with the vehicle. The same is true for count 2. The prosecution elected to proceed on a theory of assault “with a deadly weapon or instrument other than a firearm … .” (§ 245, subd. (a)(1).) “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.) The evidence at trial did not support a reasonable inference that defendant used the purse as a deadly weapon. The only legally viable theory for the conviction of assault with a deadly weapon is the one argued by the prosecutor, that defendant used his vehicle as a deadly weapon. “When confronted with offenses within the purview of section 654, the proper procedure is to stay execution of sentence on all but one of the offenses subject to this section. [Citation.] A concurrent sentence simply does not satisfy the prohibition against double punishment. [Citations.]” (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) Here, the trial court sentenced defendant to three years on count 2 to be served concurrently with counts 1 and 4. Instead, it should have stayed the execution 13 of the sentence on count 2. Accordingly, under section 1260, the judgment must be modified to reflect a stay of count 2. We will therefore modify the judgment ourselves to stay the sentence on count 2 in accordance with section 654. (See People v. Bey (2025) 108 Cal.App.5th 144, 167–168, citing People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority under § 1260 to modify judgment rather than remand as remedy for trial court’s failure to impose and stay sentence].)

14 IV. DISPOSITION The judgment is modified to stay the sentence on count 2 under section 654. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM (D.), J.

We concur:

HOFFSTADT, P. J.

BAKER, J.