Filed 1/15/14 P. v. Kelly CA2/8 

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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 Superior 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, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and 

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent. 

__________________________ 
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Defendant and appellant Lamont Kelly appeals 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 insufficient 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 PROCEDURAL BACKGROUND 

A. The People’s Case 

 Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 

43 Cal.4th 327, 357-358), the evidence established that in October 2011, the Starbucks on 

the corner of La Brea and Centinela in Inglewood had six cash registers; four in the front 

and two in the drive-thru area. Joanna W. was the shift supervisor 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 entered the store at about 11:45 a.m., wearing 

black sweatpants, a black silk doo-rag pulled half-way down his forehead and a black 

hoodie, with the hood pulled up. After placing his drink 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, “Guys, look at the note.” After 

they laughed, too, defendant yelled at Gustavo G., “I’m not playing with you guys.” 

Ignoring the employees’ protestations, defendant came behind the counter and said, 

 

1 All references to the code sections are to the Penal Code. 

The information also alleged four Three Strikes priors (§§ 1170.12, subds. (a)-(d), 

667, subd. (b)-(i)), three section 667, subdivision (a)(1) serious felony priors and eight 

section 667.5, subdivision (b) prison term priors. 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. 
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“ ‘You think I’m playing with you guys,’ or ‘You think this is a joke?’ ” Defendant then 

approached Joanna W. After saying something which Krystal J. could not hear, 

defendant hit Joanna W. in the face with both hands, which he had kept concealed in the 

front pocket of his hoodie. Grabbing a customer’s phone, Krystal J. took it out to the 

patio and called 911. While speaking to the 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, who chased after defendant. A recording of 

Krystal J.’s call to 911 and videos of the robbery taken from different angles by 

Starbucks’ security cameras were played for the jury. There was no camera recording the 

spot where Joanna W. was standing 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, which she assumed was a gun based on the way 

defendant was pointing it at her through the sweatshirt. She was afraid that defendant 

would shoot someone. In response to defendant’s demand that Joanna W. give him the 

money in the cash registers, Joanna W. stated 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 over to Joanna W., who pushed it over to defendant and told 

him to take it. Defendant shoved the tip money into his pocket and then got into 

Gustavo G.’s face. Returning his attention to Joanna W., defendant hit her with the hard 

object he had concealed in his sweatshirt pocket. Joanna W. told Gustavo G. to ring 

something up so that the register would open and then told defendant to take the money 

from the drawer. Defendant grabbed the bills and left. 

A motorcycle officer was about two blocks away when he received a report of a 

robbery in progress at the Starbucks. 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 got 
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a good look at defendant’s face and noticed his distinctive shoes. The officer broadcast 

defendant’s description and organized a containment of the area. About an hour later, the 

officer saw defendant on the roof 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 the Starbucks. In particular, 

he recognized the distinctive soles of defendant’s shoes. Krystal J. and Joanna W. also 

identified defendant in a field show-up. Twenty-three $1 bills were found crumpled into 

a ball and stuffed in defendant’s front pants pocket, along 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 courtyard of the apartment complex. 

B. The Defense Case 

 Defendant denied that he was the perpetrator of the Starbucks robbery; he was not 

chased by a motorcycle officer through the Starbucks parking lot that morning. 

Defendant explained he ended up on the roof of the apartment building because he was in 

possession of drugs while walking with a friend 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 the drugs he was holding, then continued on to 

the roof. While on the roof, defendant 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 proceeds from cashing his general relief check. 

The friend confirmed defendant’s version of events. 

DISCUSSION 

A. There Was Substantial Evidence 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. robbery (count 3). He does not challenge the other counts. 

We reject his argument. 
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The standard of review on a challenge to the sufficiency of the evidence is well 

settled. We “review the whole record to determine whether any rational trier of fact 

could have found the essential elements of the crime or special circumstances beyond a 

reasonable doubt. [Citation.] The record must disclose . . . evidence that is reasonable, 

credible, and of solid value—such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citation.] . . . [W]e review the evidence in the light 

most favorable to the prosecution and presume in support of the judgment the existence 

of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . 

[¶] The same standard governs in cases where the prosecution relies primarily on 

circumstantial evidence. [Citation.] We ‘must accept logical inferences that the jury 

might have drawn from the circumstantial evidence. [Citation.]’ [Citation.]” (People v. 

Zamudio, supra, 43 Cal.4th at pp. 357-358.) 

Robbery is “the felonious taking of personal property in the possession of another 

. . . and against [the person’s] will, accomplished by means of force or fear.” (§ 211.) 

The central element of the offense is that force or fear was 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 circumstantial evidence. Fear 

may be inferred from the circumstances in which 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 victim.” ’ [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 Gustavo G. slid the tip jar to Joanna W., who 

passed it to defendant. Gustavo G.’ did so after 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 repeatedly demanded that Joanna W. open the cash register. Gustavo G. 
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opened the cash register for defendant after defendant 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 impose enhancements under both section 667, 

subdivision (a)(1) and section 667.5, 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 the trial court to impose a consecutive oneyear enhancement for each prior felony conviction for which 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 conviction. Subdivision (b) of section 667 

provides: “This section shall not be applied 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, subdivision (a) and section 667.5, 

subdivision (b). “[T]he most reasonable reading 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 667 enhancement, the greatest enhancement, but only that one, 

will apply.” (Id. at p. 1150.) 

Here, pursuant to section 667.5, subdivision (b), the information 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 prior serious felony convictions pursuant to 

section 667, subdivision (a)(1). The same three priors, plus a fourth prior, were also 

alleged as strikes. Following a bifurcated trial, 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 court struck three of the four 
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Three Strikes priors, stating that those three priors were remote in time and a life sentence 

would constitute cruel and 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 midterm doubled pursuant to Three 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 the eight section 667.5, subdivision (b) priors, 

the trial court enhanced defendant’s sentence with an additional one year for each of the 

remaining seven priors pursuant to section 667.5, subdivision (b). It also sentenced 

defendant to 15 years pursuant to section 667, subdivision (a)(1), five years each for case 

Nos. YA010304, 25723 and SA043682. The dual use of prior convictions in case 

Nos. YA010304, 25723 and SA043682 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 strike the section 667.5, subdivision (b) 

enhancements based on cases Nos. YA010304, 25723 and SA043682, the People argue 

that the matter should be remanded for resentencing 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 reversed for failure to set forth reasons in 

writing].) Second, to give the trial court an opportunity to reconsider 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 “unauthorized 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 572, 583, fn. 1.) 

Defendant did not file a Reply Brief. 

We agree with the People and order the matter 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 to 
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strike any prior conviction of a serious felony 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, subd. (a)(1), may be imposed].) 

DISPOSITION 

 The section 667.5, subdivision (b) enhancements based on the prior convictions in 

case Nos. YA010304, 25723 and SA043682 are ordered stricken and the matter is 

remanded to the trial court for resentencing. Other than striking the three section 667.5, 

subdivision (b) priors, we express 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.