Filed 1/15/14 P. v. Kelly CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
LAMONT KELLY,
Defendant and Appellant. B244227
(Los Angeles County Super. Ct. No. YA082586)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Victor L. Wright, Judge. Affirmed in part, reversed in part and remanded.

Marc Robert Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

_____________ _____________2 Defendant and appellant Lamont Kelly ap peals from three convictions of second degree robbery (Pen. Code, § 211): Krystal J. (count 1), Joanna W. (count 2) and Gustavo G. (count 3). 1 He contends there was insuffici ent evidence of the force and fear
element as to count 3. In addition, defendant contends , and the People concede, that the trial court imposed an unauthorized sentence . We affirm the conviction but remand for resentencing.

FACTUAL AND PROCED URAL BACKGROUND

A. The People’s Case

Viewed in accordan ce with the usual rules on appeal ( People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the ev idence established that in October 2011, the Starbucks on
the corner of La Brea and Centin ela in Inglewood had six cash registers; four in the front
and two in the drive-thru area. Joanna W. was the shift superv isor the morning of October 18, 2011. Just before noon that day, Joanna W. was in the drive-thru area restocking plastic lids; two other people were working the drive-thru while Krystal J. and Gustavo G. were working two of the front cash registers. Krystal J. testified that defendant entere d the store at about 11:45 a.m., wearing black sweatpants, a black silk doo-rag pulle d half-way down his forehead and a black hoodie, with the hood pulled up. After placing his drin k order, defendant handed Krystal J. a note which read, “Give me all the money, or I will kill you.” Krystal J. laughed and asked defendant if he was serious. Defendant responded, “I’m not playing with you.” Krystal J. turned to her co-workers and said, “Guy s, look at the note.” After they laughed, too, defendant yelled at Gustavo G., “I’m not playing with you guys.” Ignoring the employees’ protestations, defe ndant came behind the counter and said,

1 All references to the code s ections are to the Penal Code. The information also alleged four Three St rikes priors (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)), three section 667, subdiv ision (a)(1) serious fe lony priors and eight section 667.5, subdivision (b) prison term prio rs. A jury convicted defendant of all three robberies and found true the prior conviction allegations. Defendant was sentenced to a total of 32 years in prison. He timely appealed.3 “ ‘You think I’m playing with you guys,’ or ‘You think this is a jok e?’ ” Defendant then approached Joanna W. After saying some thing which Krystal J. could not hear,
defendant hit Joanna W. in th e face with both hands, which he had kept concealed in the front pocket of his hoodie. Grabbing a cust omer’s phone, Krystal J. took it out to the patio and called 911. While speaking to th e dispatcher, Krystal J. saw a motorcycle
officer whom she alerted to the on-going robbery. When defendant ran out of the store, Krystal J. pointed him out to the officer, w ho chased after defendant. A recording of Krystal J.’s call to 911 and videos of the robbery take n from different angles by Starbucks’ security cameras were played for th e jury. There was no camera recording the spot where Joanna W. was standi ng when defendant hit her. Joanna W.’s description of the perpetrator was similar to Krystal J.’s. Joanna W. first became aware of him when Krystal J. showed Joanna W. the note defendant had given her. Joanna W. became convinced of defendant’s seriousness when he came
behind the counter. Joanna W. noticed that defendant was holding something concealed in the front pocket of his sweatshirt, whic h she assumed was a gun based on the way defendant was pointing it at her through the sw eatshirt. She was afraid that defendant would shoot someone. In response to defenda nt’s demand that Joanna W. give him the money in the cash registers, Joanna W. stat ed that she did not have the keys. After defendant repeated his demand and Joanna W. repeated her inability to comply, Gustavo G. slid the tip jar ove r to Joanna W., who pushed it over to defendant and told him to take it. Defendant shoved the tip money into his pocke t and then got into Gustavo G.’s face. Returning his attention to Joanna W., de fendant hit her with the hard object he had concealed in his sweatshirt pocke t. Joanna W. told Gustavo G. to ring something up so that the regist er would open and then told defendant to take the money from the drawer. Defendant gr abbed the bills and left. A motorcycle officer was about two blocks away when he received a report of a robbery in progress at the Star bucks. The officer arrived at the scene within seconds; seconds later Krystal J. pointed out defendant as he ran out of the store. The officer’s foot pursuit ended when defendant climbed over a fence, but not until after the officer got4 a good look at defendant’s face and noticed hi s distinctive shoes. The officer broadcast defendant’s description and organized a containm ent of the area. Abou t an hour later, the
officer saw defendant on the ro of of a building within the containment area. Defendant was eventually persuaded to climb down a fire truck ladder brought to the scene. The officer recognized defendant as the person he chased from th e Starbucks. In particular, he recognized the distinctive so les of defendant’s shoes. Krystal J. and Joanna W. also identified defendant in a field show-up. Twen ty-three $1 bills were found crumpled into
a ball and stuffed in defendant ’s front pants pocket, alon g with $2.59 in change. Although defendant had a wallet, the money was not in that wallet. A replica handgun and a $5 bill were found in the cour tyard of the apartment complex.

B. The Defense Case
Defendant denied that he was the perpetra tor of the Starbucks robbery; he was not chased by a motorcycle offi cer through the Starbucks pa rking lot that morning. Defendant explained he ended up on the roof of the apar tment building because he was in possession of drugs while walking with a frie nd to a friend’s house. When a police car suddenly stopped behind them, defendant ran away . He ran up the stairs of an apartment building, stopped on a landing to discard th e drugs he was holding, then continued on to the roof. While on the roof, de fendant took off his t-shirt so that the police, who by this time were pointing guns toward him, would see that he was not armed. The bills police found in defendant’s pocket were the procee ds from cashing his general relief check.
The friend confirmed defendan t’s version of events.

DISCUSSION

A. There Was Substantial Eviden ce to Support Conviction of the Gustavo G. Robbery

Defendant contends there was insufficient evidence of force or fear to support
conviction of the Gustavo G. ro bbery (count 3). He does not challenge the other counts. We reject his argument.5 The standard of review on a challenge to the sufficiency of the evidence is well
settled. We “review the whole record to de termine whether any rational trier of fact
could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] Th e record must disclose . . . evidence that is reasonable, credible, and of solid value—such that a reas onable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . [W]e revi ew the evidence in the light most favorable to the prosecution and presum e in support of the judgment the existence of every fact the jury could reasonably have de duced from the evidence . [Citation.] . . . [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We ‘mus t accept logical inferences that the jury might have drawn from the circumstantial ev idence. [Citation.]’ [Citation.]” ( People v. Zamudio, supra , 43 Cal.4th at pp. 357-358.) Robbery is “the felonious ta king of personal property in the possession of another . . . and against [the person’s] will, accomplishe d by means of force or fear.” (§ 211.)
The central element of the offe nse is that force or fear wa s applied to the victim to deprive him of his property. ( People v. Gomez (2008) 43 Cal.4th 249, 265.) Direct proof of fear is not necessary. Rather, fear “may be proved with circumst antial evidence. Fear may be inferred from the circumstances in wh ich a crime is committed or property is taken. [Citations.]” ( People v. Holt (1997) 15 Cal.4th 619, 690; People v. Morehead (2011) 191 Cal.App.4th 765 , 775 [same].) The victim need not testify that he or she was afraid and “the jury may infer fear ‘ “from the circumstances despite even superficially contrary testimony of the vi ctim.” ’ [Citations.]” ( Morehead at p. 775.) In Morehead
, the court observed that the victims’ fear of harm could be inferred from their prompt compliance with the robber’s demands. Here, the evidence established that Gusta vo G. slid the tip ja r to Joanna W., who passed it to defendant. Gustavo G.’ did so af ter he saw defendant’s note, after defendant yelled at Gustavo G., “I’m not playing with you guys,” and after defendant came around the counter and repeated ly demanded that Joanna W. open the cash register. Gustavo G.6 opened the cash register for defendant after defe ndant hit Joanna W. From this evidence,
a reasonable trier of fact could infer that Gustavo G. acted out of fear.

B. Dual Use of Prior Convictions Was Improper
Defendant contends, and the People concede, that the trial court improperly used the same three prior convictions to impos e enhancements under both section 667, subdivision (a)(1) and section 6 67.5, subdivision (b). They do not, however, agree on the appropriate remedy. As we shall explain, remand for resentencing is the appropriate remedy in this case. Section 667.5, subdivision (b) directs th e trial court to impose a consecutive oneyear enhancement for each pr ior felony conviction for wh ich the defendant served a prison term. Section 667, subdivision (a)(1) directs the trial court to impose a five-year enhancement for each prior serious felony convi ction. Subdivision (b) of section 667 provides: “This section shall not be applie d when the punishment imposed under other provisions of law would result in a longer term of imprisonment. . . .” In People v. Jones (1993) 5 Cal.4th 1142, our Supreme Court held that the same prior conviction cannot support an enhancement under both section 667, subdivis ion (a) and section 667.5, subdivision (b). “[T]he most reasonable readi ng of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense,
one of which is a section 6 67 enhancement, the greatest enhancement, but only that one, will apply.” ( Id . at p. 1150.) Here, pursuant to section 667.5, subdivis ion (b), the informati on alleged defendant suffered eight prior convictions for which he served a prison term and did not remain out of custody for five years. Three of those prior convictions (case Nos. YA010304, 25723 and SA043682) were also alleged as prio r serious felony convictions pursuant to section 667, subdivision (a)(1). The same thr ee priors, plus a fourth prior, were also alleged as strikes. Following a bifurcated tr ial, the jury found true the allegation that defendant suffered all eight prior convictions, that he served a prison term for each
conviction and did not remain free for five years. The trial c ourt struck three of the four7 Three Strikes priors, stating that those three pr iors were remote in time and a life sentence
would constitute cruel a nd unusual punishment in this case. The sentencing minute order does not set forth the trial court’s reasoning.
Defendant was sentenced to a total of 32 years in prison, comprised of 6 years on count 1 (the three-year midt erm doubled pursuant to Thre e Strikes), plus a consecutive 2 years on count 2 (one-third the three-year midterm doubled pursuant to Three Strikes), plus a consecutive 2 years on count 3 (one-third the three-year midterm doubled pursuant to Three Strikes). After merging two of th e eight section 667.5, subdivision (b) priors,
the trial court enhanced defendant’s sentence w ith an additional one ye ar for each of the remaining seven priors pursuan t to section 667.5, subdivis ion (b). It also sentenced defendant to 15 years pursuant to section 667, subdivision (a )(1), five years each for case Nos. YA010304, 25723 and SA 043682. The dual use of pr ior convictions in case Nos. YA010304, 25723 and SA043 682 to impose both a section 667.5, subdivision (b) enhancement and a section 667, subdivision (a)(1) enhancement was error. Although defendant asks us to simply st rike the section 667.5, subdivision (b)
enhancements based on cases Nos. YA010 304, 25723 and SA043682, the People argue
that the matter should be remanded for resenten cing for two reasons. First, so that the trial court may set forth in writing its reasons for striking the Three Strikes priors, as required by section 1385, subdivision (a). (See People v. Bonnetta (2009) 46 Cal.4th 143 [order dismissing sentence enhancement revers ed for failure to set forth reasons in writing].) Second, to give the trial court an opportunity to reconsid er its exercise of discretion to strike the Three Strikes priors in light of the reduced sentence. (See People
v. Serrato (1973) 9 Cal.3d 753, 764 [An “unauthori zed sentence may be corrected at any time even though the correct term may be more severe than the term initially imposed.”], overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 5 72, 583, fn. 1.)
Defendant did not file a Reply Brief. We agree with the People and order the ma tter remanded for resentencing. Upon resentencing, the trial court does not have discretion to strike the section 667, subdivision (a)(1) five year priors. (See § 1385, subd (b ) [“This section does not authorize a judge to8 strike any prior conviction of a serious felo ny for purposes of enhancement of a sentence under Section 667.”]; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045 [under § 1385, subd. (b), trial court has no discretion to strike § 667, subd. (a) enhancement]; see
also People v. Jones, supra , 5 Cal.4th at p. 1150 [only the greater enhancement under § 667.5, subd. (b) and § 667, su bd. (a)(1), may be imposed].)

DISPOSITION
The section 667.5, subdivision (b) enhanc ements based on the pr ior convictions in case Nos. YA010304, 25723 a nd SA043682 are ordered st ricken and the matter is remanded to the trial court for resentencing. Other than striking the three section 667.5, subdivision (b) priors, we e xpress no opinion on the proper sentence to be imposed on remand. The judgment is otherwise affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.