Filed 10/22/15 P. v. Kelly CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EMILY ALLISON KELLY,

Defendant and Appellant.

F068251

(Super. Ct. No. MF010309A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Harry M. 

Dougherty, Judge. (Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.)

Monique Q. Boldin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

 

* Before Poochigian, Acting P.J., Detjen, J. and Smith, J.
2.

Defendant Emily Allison Kelly was convicted by jury trial of possession of a 

controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), carrying a 

concealed dirk or dagger (Pen. Code, § 21310; count 2), misdemeanor possession of drug 

paraphernalia (Health & Saf. Code, § 11364.1; count 3), and misdemeanor being under 

the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4). 

On appeal, she contends a mistake in a written jury instruction requires that her 

conviction for carrying a concealed dirk or dagger be reversed. We affirm.

FACTS

On May 8, 2012, at about 1:30 a.m., Kern County Sheriff’s Deputies Mountjoy 

and Chambless were dispatched to a residence in the Mojave area. They exited their 

patrol vehicle and walked up to the residence. As they approached, they encountered 

defendant and a heavily intoxicated male, Miles, outside the residence. Defendant, who 

was standing near the open carport, exhibited symptoms of methamphetamine use. 

A few feet from defendant were a pile of rocks, a large soda-type cup with a straw 

coming out of it, some clothing, shoes, and a lady’s purse. The deputies asked defendant 

if these were her items, and she said everything except the purse was hers. The purse was 

about five inches from the soda cup and about 12 inches from the other items. The items 

appeared to be all together. The purse did not have any dust or debris on it. Defendant 

said something about rocks. When the deputies requested her identification, she said it 

was inside her vehicle. They asked if they could search her vehicle, but when they did, 

they found no identification. Then they inquired about the purse, again asking if it was 

hers. She said it was not. The deputies did not see any other females present.

When the deputies determined they would be arresting defendant for being under 

the influence of a controlled substance, they searched the purse. Inside, they found 

defendant’s driver’s license, mail addressed to her, two methamphetamine pipes, and a 

baggie containing a usable amount of methamphetamine. 
3.

Deputy Mountjoy while speaking to defendant did not observe any weapons over 

her clothing. When Deputy Morales arrived on the scene, she got a good look at 

defendant’s upper body and, like the other deputies, did not see any weapons. Deputy 

Morales asked defendant if she had any weapons and she said she did not. But when 

Deputy Morales searched defendant, she found a small, fixed-blade knife in a leather 

sheath hanging from a lanyard around defendant’s neck and concealed under her shirt and 

over her bra. 

At the station, defendant was extremely uncooperative and she refused to provide 

a urine sample. 

Defense Evidence

Defendant’s father, Forest Helm, testified that he owned the Mojave residence 

with defendant. One of his other daughters lived there. He went to the property often to 

water the trees and clean up some of the junk around there. When he visited before 

May 8, 2012, he noticed junk in the carport. There was a purse or bag that had papers 

and other things in it. The bag had been there for five or six weeks. He let his other 

daughter know it was there. 

On cross-examination, Helm explained that he did not pay too much attention to 

the bag until one day he thought it might be important to someone. So he opened it and 

saw quite a few papers inside. But he did not read them and did not see papers belonging 

to defendant. He agreed that sandstorms were not infrequent in Mojave. The first time 

he mentioned to defense counsel that he had seen the bag was on the day before this 

testimony. 

On redirect, Helm said the bag was brown and kind of like a purse. 

On recross-examination, Helm testified he was not sure if he was at the residence 

at the time of defendant’s arrest. 

On redirect, he said he did not think he was present when defendant was arrested. 
4.

Defendant’s husband, William Kelly, testified that defendant’s car had been stolen 

close to the time of her arrest. Defendant normally always had her purse with her. But 

after the car was stolen, he no longer saw her purse in the house. He had no idea where 

her purse was at that time. 

Kelly was not present when defendant was arrested. He later went to retrieve her 

property from the evidence room. He was given a large, brown bag. He did not 

recognize the bag and wondered whose bag it was. 

On recross, Kelly said he did not think defendant’s purse had ever been recovered. 

He received only the brown bag that he did not recognize as hers. Nevertheless, he did 

not go to anyone in law enforcement and tell them the bag he received was not his wife’s 

purse. 

Defendant testified on her own behalf. She explained that when her car was 

stolen, it was missing for about 10 days before it was found. The small, black purse she 

had been using, which contained her keys, wallet, and identification, was stolen along 

with the car. 

She was at the residence that evening because her sister had called her and told her 

there were some items left in her carport that had been stolen in her car. They had been 

there for some time, but she had forgotten to tell defendant. When defendant arrived at 

the residence that night, her sister wanted her to come into the house. Defendant declined 

and said she was there to get her property. The sister got upset and called the police. The 

deputies arrived when defendant was outside with Miles. She told them there was no 

disturbance. She was wearing shorts and sandals, and she was getting cold. She had 

stopped by her girlfriend’s house and had borrowed her girlfriend’s daughter’s black 

velveteen jacket that had a broken zipper and did not close. Under that jacket, she was 

wearing a very light camisole-type of blouse. She wore a small knife hanging around her 

neck and hanging over her camisole. The knife was a gift purchased at a sporting goods 

store. 
5.

Deputy Morales asked her if she had anything illegal and she said no. As Deputy 

Morales moved behind her and started searching her, Deputy Morales asked her if she 

had any weapons. Defendant said yes, but Deputy Morales found the knife at the same 

time. The knife was hanging over the camisole but under the jacket that would not zip 

up. 

Defendant told the deputies her identification was in the middle console of her car. 

They did not find it because they did not look where she told them to look. When the 

deputies asked her if the purse was hers, she said it was not. She did not know how her 

identification got into the bag, which belonged to Miles. The papers got into the bag with 

her permission. The methamphetamine and pipes were not hers. She had never seen 

them before and was not aware they were in Miles’s bag. 

She wanted to give the deputies a urine sample, but she did not receive the water 

she asked for and then she fell asleep. She was never given the opportunity to give a 

sample. 

On cross-examination, defendant explained that the lady’s purse belonged to 

Miles, and he put defendant’s mail, court documents, and lipstick into his purse. She told 

the deputies that the person who stole her car (her nephew) must have stolen her things 

and put them in the purse. Her nephew stole the car at gunpoint, causing her, Miles, and 

another man to jump out of her moving car. 

Regarding the knife, defendant explained that all three of the deputies were talking 

to her at the same time. When Deputy Morales decided to search her, Deputy Morales

walked behind her and told her to raise her hands. Deputy Morales asked her if she had 

anything illegal on her and she answered that she did not. Defendant’s knife was hanging 

where everyone could see it, but her black jacket probably caused the deputies to miss it. 

When Deputy Morales found the knife, she laughed and laughed at the other deputies and 

showed them how funny it was that they had missed it. Yet Deputy Morales did not think 

it was very funny; she pointed it out and the other deputies laughed. She said, “[L]ook 
6.

what you guys missed.” Defendant agreed with the prosecutor that the knife had been 

“right in the open the whole time just everyone didn’t see it.” 

Defendant explained that she did not refuse to provide a urine sample. She was 

looking forward to providing one because a deputy told her she would not be charged if 

she gave a sample that proved she was not on drugs. 

Defendant and her husband later went to retrieve her personal items from the 

sheriff’s station. She took Miles’s purse, even though it was not hers, because he was 

incarcerated and asked her to get it. 

Following this testimony and the attorneys’ arguments, the trial court orally 

instructed the jury. Regarding count 2, the trial court orally instructed the jury with 

CALCRIM No. 2501, as follows:

“The defendant is charged in Count 2 with unlawfully carrying a 

concealed dirk or dagger, in violation of Penal Code Section 21310. To 

prove the defendant is guilty of this crime, the People must prove:

“One, the defendant carried on her person a dirk or dagger.

“Two, the defendant knew that she was carrying it.

“Three, it was substantially concealed on the defendant’s person;

and

“Four, the defendant knew that it could be readily used as a stabbing 

weapon.

“The People do not have to prove the defendant used or intended to 

use the alleged dirk or dagger as a weapon. A dirk or dagger is a knife or 

instrument with or without a hand guard that is capable of ready use as a 

stabbing weapon that may inflict great bodily injury or death. Great bodily 

injury means significant or substantial physical injury. It is an injury that is 

greater than moderate or minor harm. 

“A pocket knife or non-locking folding knife is not a dirk or dagger

unless the blade is exposed and it is in a locked position. A knife carried in 

a sheath worn openly is not concealed.” (Italics added.) 
7.

The written form of this instruction, however, contained an additional phrase in 

the final sentence. It stated:

“The defendant is charged in Count 2 with unlawfully carrying a 

concealed dirk or dagger in violation of Penal Code section 21310.

“To prove that the defendant is guilty of this crime, the People must 

prove that:

“1. The defendant carried on her person a dirk or dagger;

“2. The defendant knew that she was carrying it;

“3. It was substantially concealed on the defendant’s person;

“AND

“4. The defendant knew that it could readily be used as a stabbing 

weapon.

“The People do not have to prove that the defendant used or 

intended to use the alleged dirk or dagger as a weapon.

“A dirk or dagger is a knife or other instrument with or without a 

handguard that is capable of ready use as a stabbing weapon that may 

inflict great bodily injury or death. Great bodily injury means significant or 

substantial physical injury. It is an injury that is greater than minor or 

moderate harm.

“A pocket knife or nonlocking folding knife is not a dirk or dagger 

unless the blade is exposed and in the locked position.

“A knife carried in a sheath and worn openly suspended from the 

waist of the wearer is not concealed.” (Italics added.) 

DISCUSSION

Defendant contends the mistaken phrase (“suspended from the waist of the 

wearer”) in the written instruction was factually unsupported by the evidence and likely 

misled the jury into believing that the only place in which a person could legally wear an 

unconcealed sheathed knife is around the waist and not around the neck or some other 
8.

part of the body. She asserts that this instruction vitiated her defense that she wore the 

sheathed knife openly around her neck.

The People concede the written instruction was technically erroneous because 

there was no evidence defendant wore the knife around her waist. But they argue there is 

no reasonable probability the erroneous instruction could have led the jury to conclude 

that a sheathed knife worn openly around the waist is not concealed but a sheathed knife 

worn openly around the neck is concealed.

The additional phrase, “suspended from the waist of the wearer,” is found in the 

official CALCRIM No. 2501 instruction itself, as part an optional sentence: “[A knife 

carried in a sheath and worn openly suspended from the waist of the wearer is not 

concealed.]” Presumably, this optional sentence is provided because sheathed knives are 

often worn on a belt around the waist. But in this case, it was not. Accordingly, the trial 

court correctly eliminated the “suspended from the waist of the wearer” phrase from the 

oral instruction, tailoring the instruction to the facts of the case. Unfortunately, the 

phrase was mistakenly left in the written instruction.

When oral and written instructions conflict it is presumed the jury followed the 

written instructions. (People v. Mills (2010) 48 Cal.4th 158, 201; People v. Majors

(1998) 18 Cal.4th 385, 409-410.) “When an appellate court addresses a claim of jury 

misinstruction, it must assess the instructions as a whole, viewing the challenged 

instruction in context with other instructions, in order to determine if there was a 

reasonable likelihood the jury applied the challenged instruction in an impermissible 

manner. [Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 803-804.) We assess 

instructions “in the context of the evidence presented and other circumstances of the trial 

to determine whether the error was prejudicial.” (People v. Flood (1998) 18 Cal.4th 470, 

489.)

Here, we conclude the instructional error was harmless beyond a reasonable doubt. 

(Chapman v. California (1967) 386 U.S. 18, 24.) “First, the court orally instructed the 
9.

jury with the correct instruction. Although this court gives priority to the written version 

of an instruction when a conflict exists between the written and oral versions, the jury is 

not informed of this rule. It is thus possible the jury followed the oral instruction. 

Second, there is no indication the jury was aware of the slight difference between the 

written and oral versions of the instructions, as it asked no questions about this point.”

(People v. Wilson, supra, 44 Cal.4th at p. 804.) Third, the evidence was overwhelming 

that the knife hanging around defendant’s neck was substantially concealed and not worn 

openly. The deputies did not see the knife and were unaware of its presence until Deputy

Morales found it under defendant’s shirt during a search of her person. Even if the jury 

believed defendant’s version, she testified that the deputies did not see the knife because 

the jacket she was wearing covered it. Thus, defendant’s testimony supported the 

conclusion that the knife was substantially concealed by her jacket.

We agree with the People that it is extremely unlikely the jury would have taken 

the erroneous instruction to mean that the only way an openly worn sheathed knife could 

be considered not concealed is if it is suspended from the waist, as opposed to the neck. 

The entire issue regarding the knife was whether it was concealed, not whether it was 

suspended from defendant’s waist or neck. “We ‘credit jurors with intelligence and 

common sense’” (People v. McKinnon (2011) 52 Cal.4th 610, 670), and we think there is 

no reasonable possibility the jury applied the challenged instruction in the manner 

defendant proposes, particularly in light of the testimony and argument presented in this 

case. Considering all of the factors, we conclude the error did not contribute to the guilty 

verdict and was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.