P. v. Kelly

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Filed 1/23/06 P. v. Kelly CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAY ANGELO KELLY,
Defendant and Appellant.
E036170
(Super.Ct.No. FSB026013)
O P I N I O N
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke,
Judge. Affirmed with directions.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Gary W. Brozio,
Supervising Deputy Attorney General, Jonathan J. Lynn and Robert M. Foster, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted Jay Angelo Kelly of driving/taking a vehicle (Veh. Code,
§ 10851, subd. (a)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and

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misdemeanor hit and run (Veh. Code, § 20002, subd. (a)). In bifurcated proceedings, the
trial court found that Kelly had suffered three priors for which he served prison terms
(Pen. Code, § 667.5, subd. (b)) and three strike priors (Pen. Code, § 667, subds. (b)-(i)).
He was sentenced to prison for two consecutive terms of 25 years to life, plus three years.
He appeals, claiming the trial court erred in denying his Wheeler-Batson1 motion,
admitting evidence, denying his new trial motions, failing to provide him with auxiliary
services while he was representing himself, and sentencing him. He also asserts that the
prosecutor committed misconduct during argument to the jury. We reject all his
contentions and affirm, while directing the trial court to add something to the abstract of
judgment.
F ACTS
Sometime between the evening of October 22, 1999, and early October 26, 1999, a
Ford Expedition was taken from the driveway of its owner’s home. The vehicle was
spotted at the bus depot in San Bernardino the morning of October 26th. A half hour
later, a plainclothes police officer in an unmarked car found the vehicle parked in a
driveway three miles from the depot in the residential area of West San Bernardino. The
driver had difficulty backing the car out of the driveway. The plainclothes officer called
for backup and followed the car, which traveled down the residential streets. The first
black and white unit to arrive on the scene got in behind the Expedition and followed it,
1 People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986)
476 U.S. 79 [106 S.Ct. 1712] (Batson).

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and a second unit fell in behind the first. The Expedition sped up to 40 to 45 miles per
hour. Both units turned on their red and blue lights and their sirens. The Expedition sped
up to 50 miles per hour, went through a stop sign without stopping, and led the officers
on a pursuit until it jumped the curb on 15th Street and crashed into the bedroom of a
home one-fourth of a mile away from where it had first been spotted. Kelly emerged
from the driver’s seat and ran behind the house into which he had crashed the vehicle.
He managed to evade pursuing officers and a police helicopter until being apprehended
20 minutes later. The blue jacket he had been wearing was later found by police, as were
a sweaty white T-shirt and gray sweatpants.
Kelly’s defense was that even though he was on parole with drug conditions, he
went, with crack in hand, to the home of an acquaintance near the crash scene the night
before, and, with this man, smoked it all night. The next morning, when he heard the
sirens that were responding to the crash, he left the recreational vehicle in which they had
been smoking the crack and, unwittingly, began running towards the crash scene. When
he got close enough to see the red and blue lights of the patrol cars, he realized that he
needed to avoid the police, due to his violation of several of his parole terms, and he
turned and ran to get out of the area. As he did, he saw another Black man, wearing
brown pants and a gray or black shirt, who was also running. Kelly removed the white T-
shirt and gray sweatpants he was wearing, hoping that a parole officer, whom he knew
and had passed by, would not recognize him without them. He left them where the police
later found them. However, he denied that the discarded jacket also found by the police

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was his. He ran when confronted by the police, but was ultimately unsuccessful in
evading them.
ISSUES AND D ISCUSSION
1. Wheeler-Batson Error
More than halfway through jury voir dire, defense counsel told the trial court, “I
just want the court to admonish the [prosecutor] that there is a motion pending here that I
am going to make now under Wheeler and Batson concerning her arbitrary use of
p[er]emptory challenges to excuse all [African-Americans] . . . .” (Italics added.)
Counsel then named the three formerly excused prospective jurors. Defense counsel
added, “. . . [I]f the [prosecutor] was going to say there was a reason to kick [a named one
of the three] off, it was because he was going to say that she had to prove the case against
[Kelly] and that sounds like a real tough burden she has to meet here. [¶] . . . I . . . ask
the court to declare a mistrial and we will have another panel come up.”
The trial court responded, “. . . [T]he three that you have talked about, I have seen
them be excused but there have been reasons that the [prosecutor] could choose to do it.”
Kelly here contends that the trial court’s failure to declare that he had made a prima facie
case of discrimination require the prosecutor to state nonracial reasons for excusing these
jurors and determine that those excuses were sufficient and in good faith require reversal
of his convictions. We disagree.
No doubt, the trial court “short-circuited” procedures by the manner in which it
handled Kelly’s motion. However, we believe the result would not have been different
had the court below done exactly what it should have done. It concluded that there

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existed reasons for dismissing each of these prospective jurors, which were not related to
their race. Kelly challenges this conclusion, asserting, merely, “. . . [T]here was little if
anything in the voir dire of [the three] to justify the prosecution’s use of peremptory
challenges.” However, Kelly himself reports in his opening brief that one worked for the
public defender’s office in Los Angeles, had a brother who had been convicted of
murder, and had herself been the victim of a robbery, while another had a brother who
was in prison. Additional facts about these prospective jurors Kelly does not mention are
that the former one had a daughter who worked for the alternate public defender’s office
in Los Angeles, and the latter one thought he knew Kelly from high school, had a nephew
who was in prison for “strong-arm robbery,” and his wife worked for an officer that
“help[s] whoever has problems with the D[istrict] A[ttorney].” The last of the three had
cousins who had been arrested. Thus, there existed legitimate nonracial reasons for
excusing all three prospective jurors. Had the trial court followed proper procedures, a
different result would not have occurred, and, therefore, Kelly was not prejudiced by
what it did. We note that defense counsel below failed to object to the manner in which
the trial court handled his motion.
2. Admission of Evidence
During direct examination by the prosecutor, the officer who was in the second
black and white unit testified that after Kelly had been arrested, “I walked back to the
crime scene, at which time a witness flagged me down and . . . showed me where the
suspect had taken off his clothes, which was 1448 West . . . 15th. He had taken off his
white shirt and he had tan khaki pants or gray sweat pants [sic] and a blue jacket. I found

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exactly where they told me and they said he took off his white shirt, left it . . . right next
to the garage. I found a white T-shirt . . . . [¶] . . . [¶] The witness, who was right
across the street at 1455 said, ‘Hey, the suspect . . . .’” Defense counsel made a hearsay
objection which was sustained by the trial court. The officer continued, “‘Jumped over
the fence right here, left his white shirt right here,[’] which I found . . . .” The prosecutor
then asked the officer, “They said [the] suspect then went over here behind these bushes
. . . .” Defense counsel interrupted the prosecutor, saying, “. . . [W]e don’t want to hear
what they told you, just what you did.”
During cross-examination of the officer by defense counsel, the officer testified
that shortly after the crash, he received a call over the radio that the “suspect [who] was
just involved in a crash . . . was taking off his clothes . . . at 1448 [15th Street].” Defense
counsel asked the officer who the caller was and the officer identified him as “Mr.
Mendoza.” During further cross-examination, the officer testified that he talked to
Mendoza. Counsel asked the officer, “[Mendoza] didn’t see the person get out of the
vehicle that was crashed up against the house, he saw somebody later, right?” The
officer responded, “He actually told me it was the suspect from the vehicle.” Defense
counsel said, “Okay. But . . . did [Mendoza] actually say he saw the car hit the house?”
The officer replied, “He said he heard the accident. I don’t know if he actually saw the
accident.” During more cross-examination, the officer testified that he talked to
Mendoza, who said that the suspect was wearing brown khaki pants or gray sweats. He
also said that his report contained a statement by a woman who said that the suspect that
had been driving the vehicle was in front of her home. The officer denied talking to this

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woman, but said that her statement had been dispatched on the radio. This woman had to
have been the same witness who, at trial, positively identified Kelly as the driver of the
Expedition and testified that five minutes after the crash, Kelly emerged from between
two houses, having changed his clothes.
Kelly here contends that the trial court erroneously admitted the statements
Mendoza made to the officer and during his call to the police. First, the officer testified
that Mendoza, and possibly others (he used the word, “they” often) told him that the
suspect had taken off the latter’s white T-shirt, his khaki or gray sweatpants and his blue
jacket, and Mendoza pointed these items out to the officer. Defense counsel did not
object to this testimony, and, therefore, may not now contest its admission. (Evid. Code,
§ 353.) It was during cross-examination of the officer by defense counsel that the former
went on to state that Mendoza had called reporting that the person who ran from the
Expedition had taken off his clothes. He added that Mendoza did not actually see the
crash, but he knew the person who ran from the Expedition was wearing brown khaki
pants or gray sweatpants. (Kelly admitted wearing the sweatpants that were found.)
Because counsel himself elicited this testimony, he cannot now object to its admission.
That small portion to which defense counsel objected, as noted above, added nothing of
prejudicial impact to the evidence to which counsel either failed to object or solicited
himself.
As a fall-back position, Kelly asserts that his attorney’s failure to object to this
evidence constituted incompetency of counsel. To prevail, however, he must show a
reasonable probability that but for the failure to object, the outcome would have been

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more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct.
2052, 2064].) This probability must be sufficient to undermine confidence in the
outcome. (People v. Davis (2005) 36 Cal.4th 510, 551.) Kelly cannot meet this burden.
Kelly asserts that only Mendoza “connected the clothing to the driver of the
[Expedition].” Not true. The officer in the first black and white unit behind the
Expedition testified that the driver wore a blue jacket with three white stripes on the
sleeves. Kelly was bare-chested when he was apprehended and the jacket was found near
the crash scene and behind the house where the woman had seen Kelly emerge. The
woman, who testified and was cross-examined, stated that the driver of the Expedition
changed his clothes. She had told the police at the scene the same thing. Both of these
witnesses positively identified Kelly as the driver. The woman had also identified Kelly
“in the field” minutes after the crash. The helicopter overhead traced Kelly’s flight
through the neighborhood. Kelly ran from officers closing in on him. Even Kelly
admitted this at trial. Kelly’s defense was not strong. As part of his parole revocation, he
did not contest that he took the vehicle and evaded police.
3. New Trial Motion
Kelly contends the trial court erred in denying his motion for a new trial on the
basis that his trial attorney was incompetent. We examine each incident of incompetence
mentioned in Kelly’s opening brief.
a. Newly Discovered Evidence/Failure to Investigate Shaved Key
In an argument combining the bases for a new trial motion of both newly
discovered evidence and incompetency of counsel for not finding this evidence before

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trial, Kelly asserted below that, after trial, he sent an investigator to a local Ford
dealership. There, the investigator contacted an individual at the service department.
This person’s position in that department is not identified in Kelly’s moving papers.2
This person said that a 1998 Ford Expedition could not be started with a shaved key
unless the driver was able to bypass the security system in some fashion. The person
asserted that a driver would need a key with a computer chip inside to start a 1998 Ford
Expedition. Kelly asserted below that had this evidence been presented at trial, he could
have made the argument that “this was an insurance scam gone wrong where the owner
of the car made the key available to the thief or thieves who took the car.” He added that
he had “repeatedly . . . asked [his trial attorney] to investigate the fact that the stolen car
did not use a shaved key.”
As the People correctly pointed out in their written response to Kelly’s motion, the
subject was, indeed, explored at trial. The officer who first got to the vehicle after it had
crashed into the house testified that he believed there was a key in the ignition and the
vehicle was running. The owner testified that there was a Ford key, which obviously was
not intended for the vehicle3 and was not his, in its ignition when he regained possession
of the Expedition. He also testified that there were two sets of keys to the vehicle, and
that he had both of them at the time the vehicle was taken. He denied giving either set to
2 He could have been a receptionist, a car washer, a janitor, or the head of the
department.
3 He so concluded because sometimes the key worked in the ignition and
sometimes it didn’t.

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anyone. He also denied giving anyone permission to take or drive his vehicle. He said
he did not know how it got to San Bernardino from the driveway of his Nuevo home in
Riverside County.4 He denied knowing Kelly or seeing him in his vehicle. While the
prosecutor introduced evidence that car thieves use shaved keys to steal cars, and it was
the prosecutor’s theory that Kelly used a shaved key to drive the Expedition, the
particular key that had been used had not been kept and was not available for inspection
by the parties. The prosecution’s expert on stolen cars said he believed that not all
Expeditions were made so that they did not run if a key without a chip was inserted in the
ignition, and he was unaware which models did. Even those that had a chip in their key
could be driven with a shaved key for some distance.
The trial court denied the motion for a new trial on this basis, saying, “. . . [The]
newly discovered evidence . . . was known to the defense at the time [of trial]. . . .
[Defense counsel] was aware of it, the defendant had made him aware of it. . . . [T]here
[are] an awful lot of new cars that have those chip keys . . . that are being stolen on a
regular basis with a variety of methods used to start them. [¶] . . . [T]his particular stolen
vehicle did have the shaved key in it and had been operating up to that point prior to the
accident when it crashed into the house. So . . . in reality it does not come in as new
evidence, it is something that was available and could have or would have been
developed at the time of trial.” The trial court went on to conclude that it was probably a
4 Nuevo is 12 miles west of Hemet. According to Kelly’s moving papers, it is 50
miles from where the vehicle was driven into the house.

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tactical decision by trial counsel not to call someone like the service department
employee, who would have been asked on cross-examination how cars with chips in their
keys end up stolen anyway.
Here, Kelly asserts that trial counsel “fail[ed] to do even the most minimal
investigation into this ‘shaved key’ issue.” However, there is no support whatsoever in
the record before us for this assertion. Moreover, we agree with the trial court -- it would
have been foolish for defense counsel to try to persuade the jury that the Expedition could
not have been driven with anything other than the keys the owner received when he
purchased it, unless counsel was also prepared to prove that the owner had given Kelly or
whoever was driving the vehicle one of those keys. There is nothing in the record before
us to support such a theory; in fact, the evidence in the record is quite to the contrary.
Therefore, Kelly cannot possibly carry his burden of showing that, but for his attorney’s
failure to present this or similar testimony (or to further investigate the matter), there is a
reasonable probability he would have enjoyed a better outcome. (Strickland v.
Washington, supra, 466 U.S. at p. 687 [104 S.Ct. at p. 2064].)
b. Failure to Locate Tyrone Thomas
The officer who spotted the Expedition on the west side of San Bernardino
testified that when he came upon the vehicle, it was parked in a driveway. A Black male
was in the driver’s seat. A person, whose gender the officer did not notice, was standing
outside the driver’s door talking to the driver. After the crimes, prints belonging to
Tyrone Thomas were discovered on the driver’s door window and the fender on the
driver’s side. In his motion for a new trial, Kelly stated that he “knew Thomas,” and the

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latter had Jheri curls. The officer who identified Kelly as the driver testified that in
describing the driver to dispatch, he might have said that the latter had Jheri curls, but he
could not recall what he said, and, in fact, the driver’s hair was in cornrows.5 In his
motion, Kelly faulted his trial attorney for not investigating the whereabouts of Thomas.
As the People correctly pointed out in their written response to Kelly’s motion,
had Thomas been located (a result not supported by the record before us), Kelly may
have received no benefit whatsoever. If, in fact, Thomas was the driver of the car (and
the fact that his prints were found on the outside of the car did nothing to support this), he
would have “taken the Fifth Amendment” and refused to testify. The fact that Kelly
knew Thomas is more damning than anything about the matter this jury was told.
Thomas could easily have been the person who was talking to the driver of the car in the
driveway (his prints on the outside of the car are consistent with this), and because
Thomas and Kelly were acquaintances, that would incriminate Kelly, not exonerate him.
The mere coincidence, alone, of the fingerprints of an acquaintance of Kelly’s being on
the outside of a car allegedly being driven by Kelly, would have been one more nail in
Kelly’s coffin. Fortunately for Kelly, the prosecutor during trial was apparently unaware
of the link between the two men. Not involving Thomas in this trial was a smart move on
the part of defense trial counsel. Our conclusions were echoed by the trial court.
5 We note, with interest, the difference between the officer’s actual testimony,
which we have summarized in the body of the opinion, and the following representation
made by Kelly’s attorney (not trial counsel) in his moving papers as to what the officer
said, “. . . [The officer] testified that his radio description of the fleeing suspect was that
he had Jherri [sic] curls.” (Emphasis omitted.)

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c. Failure to Move to Suppress the In-field Identification
Although Kelly here contends that the trial court erred in denying his new trial
motion on the basis that his trial attorney failed to bring a motion to suppress the in-field
identification of him by the woman mentioned above, we note that in his discussion of
this issue, he makes no references to his moving papers below, the People’s written
response, or the trial court’s ruling. That is, no doubt, because he never advanced this
argument below as part of his motion for a new trial. Therefore, he waived the issue.6
To the extent he appears to argue that, independent of the new trial motion, the
cumulative effect of trial counsel’s incompetence, including this particular failing,
requires reversal of his convictions, we note our rejection of the incidents of alleged
incompetence discussed here which were, in fact, part of his new trial motion. Moreover,
we incorporate, by reference, the People’s response to this particular assertion on its
merits.
d. Failure to Maintain Contact
Kelly, again, advances an argument he did not make below, i.e., that his attorney’s
failure to maintain contact with him amounted to incompetency of counsel which merited
the trial court’s granting him a new trial.7 As to the cumulative effect of this and the
6 If Kelly wished to make this argument independent of his contention that his new
trial motion should have been granted (which he should have because it was not part of
the motion), he should not have placed it under the heading concerning that motion and
within the portion of his brief dealing with that motion.
7 See footnote 6, ante.

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other matters discussed above in relation to the new trial motion, our position has already
been stated and we incorporate, by reference, the People’s response to this particular
contention.
e. Failure to Object to Comments by the Prosecutor During Closing Argument
Once again, Kelly claims the trial court erred in denying his new trial motion on
the basis that his trial attorney was incompetent for failing to object to remarks made by
the prosecutor during closing argument, but no such argument was advanced below as
part of that motion.8 We will therefore address the argument on the merits in relation to
Kelly’s assertion of prosecutorial misconduct and incompetency of trial counsel for
failing to object to it and not in the context of the denial of his new trial motion.
4. Prosecutorial Misconduct
a. Comments concerning Mr. Mendoza
During argument to the jury, the prosecutor pointed out that both the officer, who
was driving the second black and white unit behind the Expedition, and the woman
mentioned above identified Kelly as the man who got out of the vehicle and ran. He
added, “Not only that, when [defense counsel] asked [this officer] who else said that or
who else said something in regards to that, [the officer] said [that] Mr. Mendoza [had].
Mr. Mendoza didn’t have to come in and testify because the officer was able to tell you
Mr. Mendoza also identified the defendant as driving the vehicle.” Defense counsel
objected, saying the prosecutor was “misstat[ing] . . . the argument.” Presumably,
8 See footnote 6, ante.

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counsel meant she was misstating the evidence. She was not. As stated before, during
cross-examination by defense counsel, the officer testified twice that Mendoza reported
that the person involved in the crash had changed his clothes.
b. Comments Concerning What Kelly Told His Trial Lawyer
During direct examination of Kelly by his attorney, Kelly testified that his trial
attorney began representing him in May 2000. He also said, during direct, that during
2000, he saw his alibi witness on the jail bus and told him that he wanted him to testify in
his behalf. He said that when he was arrested in this case, he was immediately sent to
prison. During cross-examination, he explained that his parole was revoked because of
his involvement in this case and for other reasons. The following colloquy occurred
during redirect examination:
“[Defense counsel:] Did you ever tell me about [the woman whose house you
testified to yesterday you tried to hide in while the police were chasing you] before [your
testimony] yesterday?
“[Kelly:] I really don’t recall telling you a whole lot about that episode . . . , so I
know if I didn’t tell you much, I didn’t tell you that.
“[Defense counsel:] Do you ever remember telling me anything about this?
“[Kelly:] No.
“[Defense counsel:] Did I ever come to the jail and visit you?
“[Kelly:] No.”
During argument to the jury, the prosecutor said, “. . . [Kelly] is sent away to
prison for violation of parole and he meets [his trial attorney], comes back here and says

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that he met [his trial attorney] about a year ago. Did he tell [his trial attorney] about this
alibi? No. Does he tell him . . . , [‘]I didn’t do this, it was not my fault, I got these
people [who saw me at the scene and the alibi witness who] knows where I was at the
time.[’] Does he tell him? No. Why not? It didn’t happen. It took him a year-and-a-
half to figure out an alibi.”
Kelly here contends that these remarks constitute prosecutorial misconduct, but
they do not. They were merely commentary on evidence defense counsel elicited from
Kelly. Therefore, defense counsel’s failure to object to them cannot be deemed
incompetency of counsel.
5. Auxiliary Services for Self-Representation
The jury returned its verdicts in early May 2001. On August 9, 2001, before
Kelly’s motion for a new trial had been filed and his bifurcated trial on the priors had
been conducted, he successfully moved to represent himself. The trial court noted that
copies of the documents the People intended to present at the hearing on the priors had
been given to Kelly and trial defense counsel acknowledged that he had discussed the
evidence with Kelly. At defense counsel’s request, the trial court vacated the date set for
the new trial motion and continued the trial of the priors. The trial court told Kelly that
he had law library privileges.
On August 20, 2001, Kelly told the trial court that he still was unable to get into
the law library to do research. The trial court said that it would sign an updated order
saying that Kelly was in propria persona and recall the case five days later to make sure
the order was being honored. The record before us contains no transcript for that

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appearance, but the minute order reflects no complaint by Kelly. An August 31, 2001,
minute order states that Kelly’s motion for appointment of a paralegal/legal runner was
granted by the trial court, who signed the order of appointment. The motion itself is not
part of the record before us. On September 28, 2001, the minute order notes that Kelly
said he needed further reports from his trial attorney who was present and said he could
have them to Kelly by the next hearing date. On December 10, 2001, Kelly requested
counsel to be appointed, saying, “The law library . . . [is] having . . . a lock-up situation
or something, I don’t know, and it is shaky at best getting in there.” The trial court
reappointed Kelly’s trial attorney, and Kelly said nothing to the court. A week later, trial
counsel was relieved and a conflicts panel attorney was appointed to represent Kelly.9
The trial of the priors did not occur until late March 2002. In July 2002, the trial court
granted Kelly’s Marsden motion and appointed him new counsel. Kelly’s May 2003
Marsden motion against this attorney was denied. New counsel was appointed in
September 2003. The hearing on Kelly’s new trial motions took place on April 30, 2004.
Based on elaborations of these facts and reading things into them not supported by
the record before us, Kelly here asserts that he was denied his Sixth Amendment right to
represent himself by the trial court’s denial of adequate ancillary services necessary to
carry out that right. He does not state what those services were and the record before us
provides no clue. He appeared at one point to be somewhat frustrated by his inability to
9 And so ended the “sadism,” which Kelly currently complains occurred when his
trial attorney was reappointed to represent him.

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use the law library as he had wished; however, he willingly asked the trial court to
appoint him counsel, which it did. This apparent frustration was resolved months before
the trial of the priors and years before the hearing on the new trial motions. There is no
basis whatsoever in the record before us for vacating the results of both of these
proceedings, as Kelly has requested.
6. Sentencing
a. Penal Code section 654
Kelly claims that the under Penal Code section 654, he cannot be punished both
for taking/driving the Expedition and evading the officers. The sentencing court
concluded that the two were separate offenses, with the first being completed when the
vehicle was taken and the other beginning when the first black and white unit behind the
Expedition activated its lights and siren. Even if, as Kelly asserts, the evidence presented
at trial did not show that he took the car, but was merely driving it, he was doing this
before the officers attempted to stop him. Therefore, there was evidence to support the
trial court’s conclusion that the crimes were independent of each other. (People v. Green
(1996) 50 Cal.App.4th 1076, 1085.)
b. Romero Motions
In denying Kelly’s Romero10 motions, the trial court said, “. . . Kelly . . . [has] . . .
pled guilty . . . [to] three residential burglaries . . . . [R]esidential burglaries are
potentially one of the most dangerous of the property type crimes . . . because you are
10 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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going into an individual’s house. . . . Kelly has indicated that he was always sure before
he entered a house that nobody was there and I am not quite sure how you could possibly
make that decision . . . . You might . . . think there is [no]body in there, but . . . especially
with the reasons given for breaking and entering [in that] Kelly was on drugs or ha[d] a
drug habit, the sophistication, research and work to try to come to that conclusion . . .
[gives me] a great deal of concern with the validity of that statement, even though [Kelly]
may actually believe it. [¶] But the whole thing that has led up to this is [Kelly’s] choice
in the past of doing the first degree residential burglary and going into the potential
situation where that confrontation could arise. That is what society has dictated is the
strike. Every one of [Kelly’s] prior crimes has been that first degree residential burglary,
a very potentially dangerous situation for life not only to either [the perpetrator] or the
people in the house, but depending on the circumstances potentially innocent bystanders
depending on how far the attempt to stop the burglary or to apprehend [the perpetrator] as
[the latter is] trying to get away[,] potentially injuring other people, neighbors, friends,
relatives, passers-by on the street . . . . [¶] . . . [Kelly] said . . . [he] had learned [his]
lesson and cleaned up [his] act [when [he] got out of prison for the third burglary], saw
the error of [his] ways . . . as a two striker . . . . The problem is that it wasn’t long after
that that . . . [his] good faith efforts and intentions put [him] back . . . in front of me . . . .
[His] ignoring the attempts . . . by law enforcement to stop [the Expedition] . . . makes
this an extremely dangerous and life threatening event . . . ; the reckless driving . . . ;

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potential running of stop signs;[11] potential of injuring a child . . . [or a] . . . pedestrian
. . . crossing the street; . . . in this case the actual[ity of] eventual[ly] . . . losing control of
the car and crashing into a house which could have injured somebody in the front yard
. . . or . . . somebody in the house . . . is extremely dangerous. [¶] . . . [¶] The purpose
of the three strikes law was to try to keep repeat people off of the streets that have
committed violent felonies. [¶] . . . [¶] . . . I cannot find any rationale that . . . would
authorize me with [Kelly’s] background and circumstances to be able to [dismiss] the
strikes because . . . with the history that I am looking at, [he] would probably be out in a
couple more years and then somebody else the next time a situation arises is liable to lose
their life because of [his] need to fulfill that drug habit. [¶] . . . [¶] . . . I . . . cannot find
anything in the background and circumstances of even this crime . . . that would permit
me to [dismiss] any of the strikes.”
While Kelly here acknowledges that the trial court’s denial of his motions is
subject to review for abuse of discretion, he contends that discretion was abused because,
he asserts, the trial court was unaware that it had discretion under Penal Code section 17,
subdivision (b), to treat one or both of his felony convictions as misdemeanors.
However, nothing in the record before us supports Kelly’s assertion that the trial court
was unaware that it had this discretion. Moreover, based on the remarks quoted above,
we conclude that the trial court would not have exercised that discretion to reduce either
11 As already stated, the officer in the first black and white unit following the
Expedition testified that Kelly, indeed, ran a stop sign.

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of Kelly’s felony convictions to misdemeanors, even if Kelly had made the appropriate
motion.12
Kelly also contends that the sentencing court abused its discretion by relying on
the nature of the priors and his continuing criminality. He asserts that all third strikers
are recidivists. While this, of course, is true, he ignores the real focus of the court’s
reasons for denying his motion, i.e., the potential for serious harm of both his past and
current offenses. Added to this is the fact that Kelly ignored the conditions of his
recently granted parole in several respects. If this is not a case for which the three strikes
law was intended, we would be hard pressed to find one that is.
D ISPOSITION
The trial court is directed to amend the abstract of judgment to note that Kelly was
sentenced pursuant to Penal Code section 667, subdivisions (b) through (i). In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ Ramirez
P.J.
We concur:
/s/ Hollenhorst
J.
/s/ King
J.
12 Therefore, we cannot agree with Kelly that any of his attorneys below were
incompetent for failing to make such a motion.

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