People v. Kelly CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068251 Plaintiff and Respondent, (Super. Ct. No. MF010309A) v.

EMILY ALLISON KELLY, OPINION Defendant and Appellant.

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.

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.