People v. Kelly CA2/8

Filed 1/15/14 P. v. Kelly CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B244227

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA082586) v.

LAMONT KELLY,

Defendant and Appellant.

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.

__________________________

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,